Broadcasting background music on planes can be a copyright issue according to the EU Court

The European Court has ruled in joined cases C‑775/21 и C‑826/21, Blue Air Aviation SA v UCMR — ADA Asociaţia pentru Drepturi de Autor a Compozitorilor.

These disputes concern whether broadcasting music in planes and trains can constitute communication to the public from a copyright point of view. The cases have the following background:

Case C‑775/21

The UCMR – ADA is a collective management organisation which handles music copyright.

On 2 March 2018, that body brought an action before the Regional Court, Bucharest, Romania against the air transport company Blue Air, seeking payment of remuneration still due and of penalties for the communication to the public of musical works on board aircraft operated by Blue Air, for which Blue Air had not obtained a licence.

Before that court, Blue Air submitted that it operates 28 aircraft and that, although it has the software necessary for the broadcasting of musical works in 22 of those 28 aircraft, it communicated to the public, after obtaining the required licence, only one musical work as background music, in 14 of those aircraft.

Following those clarifications, the UCMR – ADA expanded its requests for payment, taking the view that the existence of sound systems in approximately 22 aircraft justified the conclusion that protected works had been communicated to the public in all of the aircraft of Blue Air’s fleet.

By judgment of 8 April 2019, the UCMR – ADA’s action was upheld. In essence, the Regional Court, Bucharest held, on the basis of the judgments of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764), and of 15 March 2012, Phonographic Performance (Ireland) (C‑162/10, EU:C:2012:141), that the fact that Blue Air equipped the means of transport operated by it with devices enabling the communication to the public of musical works as background music gave rise to a rebuttable presumption that those works were used; this required it to be held that any aircraft equipped with a sound system uses that device for the communication of the musical work in question to the public, without any further proof being necessary in that regard.

Blue Air appealed against that decision to the Court of Appeal, Bucharest, Romania, which is the referring court, submitting, inter alia, that it had not communicated background music on board the aircraft it operates for which no licence had been obtained, and that the mere existence of physical facilities did not amount to a communication to the public of musical works. It added that, through the broadcasting of background music, it was not pursuing any profit motive. Lastly, it stated that the existence of sound systems in aircraft is dictated by safety reasons, in order to enable communication between members of the air crew and communication between that crew and the passengers.

The referring court states that the question whether, given the absence of a profit-making objective, the communication of a musical work as background music constitutes a communication to the public within the meaning of Article 3 of Directive 2001/29, is not without uncertainty. Furthermore, if that question is answered in the affirmative, the referring court raises the question of the standard of proof required in that regard. It notes that, in accordance with the case-law of certain national courts, where an establishment carrying out a particular economic activity is cited in the methodology referred to in paragraph 23 of the present judgment, there is a rebuttable presumption that works protected by copyright are communicated to the public in that place. Such a presumption would be justified, in particular, by the fact that it is impossible for collective management organisations handling copyright systematically to monitor all the places where acts of use of works of intellectual creation could take place.

In those circumstances the Court of Appeal, Bucharest decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 3(1) of Directive 2001/29/EC … be interpreted as meaning that the broadcasting, inside a commercial aircraft occupied by passengers, of a musical work or a fragment of a musical work on take-off, on landing or at any time during a flight, via the aircraft’s public address system, constitutes a communication to the public within the meaning of that provision, particularly (but not exclusively) in the light of the criterion relating to the profit-making objective of the communication?

If the answer to the first question is in the affirmative:

(2) Does the existence on board the aircraft of an address system required by air traffic safety legislation constitute a sufficient basis for making a rebuttable presumption as to the communication to the public of musical works on board that aircraft?

If the answer to that question is in the negative:

(3) Does the presence on board the aircraft of an address system required by air traffic safety legislation and of software which enables the communication of phonograms (containing protected musical works) via that system constitute a sufficient basis for making a rebuttable presumption as to the communication to the public of musical works on board that aircraft?’

Case C‑826/21

The UPFR is a collective management organisation handling the related rights of phonogram producers.

On 2 December 2013, that body brought an action against the CFR, a rail transport company, seeking payment of remuneration still due and of penalties for the communication to the public of musical works on board passenger carriages operated by the CFR. It maintained, in that context, that the applicable railway legislation required some of the trains operated by the CFR to be equipped with sound systems and argued that the presence of such systems amounted to communication to the public of works within the meaning of Article 3(1) of Directive 2001/29.

That action was dismissed by the Regional Court, Bucharest, which held that while the mere installation of a sound system which makes public access to sound recordings technically possible constitutes a communication to the public of musical works, it had not been proved that the trains in service had been equipped with such a system.

The UPFR brought an appeal against that decision before the Curtea de Apel Bucureşti (Court of Appeal, Bucharest), which is the referring court.

The referring court notes that, in national case-law, it is the majority view, inter alia on the basis of the judgment of 7 December 2006, SGAE (C‑306/05, EU:C:2006:764), that the presence of sound systems in a train carriage amounts to a communication to the public of musical works. However, the referring court is uncertain in that regard.

In those circumstances the Court of Appeal, Bucharest decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does a rail carrier which uses train carriages in which sound systems intended for the communication of information to passengers are installed thereby make a communication to the public within the meaning of Article 3 of Directive 2001/29/EC …?

(2) Does Article 3 of Directive 2001/29/EC … preclude national legislation which establishes a rebuttable presumption of communication to the public on the basis of the existence of sound systems, where those sound systems are required by other provisions of law governing the carrier’s activity?’

The Court’s decision:

1. Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

must be interpreted as meaning that the broadcasting, in a means of passenger transport, of a musical work as background music constitutes a communication to the public within the meaning of that provision.

2. Article 3(1) of Directive 2001/29 and Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property

must be interpreted as meaning that the installation, on board a means of transport, of sound equipment, and, where appropriate, of software enabling the broadcasting of background music, does not constitute a communication to the public within the meaning of those provisions.

3. Article 8(2) of Directive 2006/115

must be interpreted as precluding national legislation, as interpreted by the national courts, which establishes a rebuttable presumption that musical works are communicated to the public because of the presence of sound systems in means of transport.

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Max Verstappen lost a trademark dispute against Nike

The world champion in F1 Max Verstappen filed a trademark application in Benelux for MAX 1 in classes 25, 35, and 41.

The main idea for this mark was to indicate different merchandising goods and services bearing the first name of the pilot and the number 1 that shows his top position in F1.

Against this sign, however, an opposition was filed by Nike based on the earlier and well-known mark AIR MAX used for sneakers.

The Benelux Patent Office upheld the opposition finding both signs similar enough from the visual and phonetic points of view for similar goods and considering the reputation of the earlier mark.

Max Verstappen’s representatives tried to argue that consumer confusion between the marks was impossible because MAX 1 clearly referred to the pilot’s first name and its leading position in the racing competition.

All of that was to no avail. The Office reminded that for the purpose of comparison what is important is the signs in the way they are represented and not the way how they are used in practice.

Source: Marks & Clerk – Sarah Chittock for Lexology.

Access to personal data in case of copyright infringements in the EU

The Advocate General of the European Court M. SZPUNAR has issue an opinion in the case C‑470/21 La Quadrature du Net, Fédération des fournisseurs d’accès à Internet associatifs, Franciliens.net, French Data Network v Premier ministre, Ministère de la Culture.

The dispute concerns the scope of access to personal data in case of copyright infringements on the internet. The case has the following background:

By application of 12 August 2019 and two supplementary submissions of 12 November 2019 and 6 May 2021, La Quadrature du Net, the Fédération des fournisseurs d’accès à Internet associatifs, Franciliens.net and French Data Network brought an action before the Council of State for annulment of the implied decision by which the Prime Minister, France rejected their application for the repeal of the Decree of 5 March 2010, even though, in their view, that decree and the provisions constituting its legal basis unreasonably interfere with the rights guaranteed by the French Constitution and, in addition, infringe Article 15 of Directive 2002/58 and Articles 7, 8, 11, and 52 of the Charter.

In particular, the applicants in the main proceedings argue that the Decree of 5 March 2010 and the provisions constituting its legal basis permit access to connection data in a manner which is disproportionate to minor copyright infringements committed online, without prior review by a court or an authority offering guarantees of independence and impartiality.

In that regard, the referring court states, first of all, that the Court, in its most recent judgment in La Quadrature du Net and Others, held that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, does not preclude legislative measures which, for the purposes of safeguarding national security, combating crime and safeguarding public security, provide for the general and indiscriminate retention of data relating to the civil identity of users of electronic communications systems. Thus, such retention is permissible, without any specific time limit being imposed, for the purposes of investigating, detecting and prosecuting criminal offences in general.

The referring court infers from this that the plea raised by the applicants in the main proceedings, alleging that the Decree of 5 March 2010 is unlawful because it was adopted in the context of action to combat minor offences, must therefore be dismissed.

Next, the referring court observes that the Court, in its judgment in Tele2 Sverige and Watson, held that Article 15(1) of Directive 2002/58, read in the light of Articles 7, 8 and 11 and Article 52(1) of the Charter, must be interpreted as precluding national legislation governing the protection and security of traffic and location data, and more particularly, the access of the competent national authorities to retained data, where that access is not subject to a prior review by a court or an independent administrative authority.

It states that the Court, in its judgment in Tele2, made clear that, in order to ensure, in practice, that those conditions are fully respected, it is essential that access of the competent national authorities to retained data should, as a general rule, except in cases of validly established urgency, be subject to the requirement of a prior review carried out either by a court or by an independent administrative body, and that the decision of that court or body should be made following a reasoned request by those authorities submitted, inter alia, within the framework of procedures for the prevention, detection or prosecution of crime.

The referring court points out that the Court recalled that requirement in its judgment in La Quadrature du Net and Others, concerning the real-time collection of connection data by the intelligence services, and in its judgment in Prokuratuur (Conditions of access to data relating to electronic communications), concerning national authorities’ access to connection data.

Finally, the referring court notes that, since its establishment in 2009, Hadopi has issued over 12.7 million recommendations to subscribers under the graduated response procedure provided for in Article L 331-25 of the CPI, of which 827 791 were issued in 2019 alone. To that end, the officials of Hadopi’s Committee for the protection of rights must be able to collect, each year, a considerable volume of data relating to the civil identity of the users concerned. The referring court considers that, given the volume of those recommendations, making such data collection subject to a prior review might make it impossible for recommendations to be issued at all.

In those circumstances, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)  Are the civil identity data corresponding to an IP address included among the traffic and location data to which, in principle, the requirement [of] prior review by a court or an independent administrative entity [whose decisions are binding] applies?

(2) If the first question is answered in the affirmative, and having regard to the fact that the data relating to the civil identity of users, including their contact details, are not particularly sensitive data, is Directive [2002/58], read in the light of the [Charter], to be interpreted as precluding national legislation which provides for the collection of those data, corresponding to the IP addresses of users, by an administrative authority, without prior review by a court or an independent administrative entity [whose decisions are binding]?

(3)  If the second question is answered in the affirmative, and having regard to the fact that the data relating to civil identity are not particularly sensitive data, that only those data may be collected and they may be collected solely for the purposes of preventing failures to fulfil obligations which have been defined precisely, exhaustively and restrictively by national law, and that the systematic review of access to the data of each user by a court or a third-party administrative entity [whose decisions are binding] would be liable to jeopardise the fulfilment of the public service [mission] entrusted to the administrative authority which collects those data, which is itself independent, does [Directive 2002/58] preclude the review from being performed in an adapted fashion, for example as an automated review, as the case may be under the supervision of a department within the body which offers guarantees of independence and impartiality in relation to the officials who have the task of collecting the data?’

The Advocate’s opinion:

Article 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), read in the light of Articles 7, 8, 11 and Article 52(1) of the Charter of Fundamental Rights of the European Union,

must be interpreted as not precluding national legislation which allows providers of electronic communications services to retain, and an administrative authority, responsible for protecting copyright and related rights against infringements of those rights committed on the internet, to access data which is limited to civil identity data corresponding to IP addresses, so that that authority can identify the holders of those addresses suspected of having committed those infringements and, if appropriate, take action against them, where that access is not subject to a prior review by a court or an independent administrative body, provided that those data are the only means of investigation enabling the person to whom that address was assigned at the time of the commission of the infringement to be identified.

The European Commission has approved new rules for industrial design protection in the EU

The European Commission has approved new rules for the protection of industrial designs in the EU. The proposal aims to:

• Simplify and streamline the procedure for the EU-wide registration of a design: By making it easier to present designs in an application for registration (for instance by submitting video files) or combine more than one design in one application, as well as by lowering the fees to be paid for the first ten years of protection, the new rules will make registered Community design protection more accessible, efficient and affordable in particular for individual designers and SMEs.
• Harmonise procedures and ensure complementarity with national design systems: The new framework aims to ensure greater complementarity among EU level and national design protection rules, for instance on requirements for registering designs or simplifying rules for invalidating registered designs. This will help to create a level playing field for businesses across Europe.
• Allow reproducing original designs for repair purposes of complex products: By introducing an EU-wide ‘repair clause’ into the Design Directive, the new rules will help to open up and increase competition in the spare parts market. This is particularly important in the car repair sector, where it should become legally possible in all EU countries to reproduce identical “must match” car body parts for repair to restore its original appearance. The proposed ‘repair clause’ should have instant legal effect only for future designs while designs already granted protection should remain covered during a transitional period of ten years. 

The next steps are for this proposal to be approved by the European Parliament and Counsel and after that the related Regulation and Directive to be adopted and come into force for all EU Member States.

The owner of the PHILADELPHIA trademark prevailed against VEGANDELPHIA in the EU

When you want to use a trademark that even vaguely associates with another well-known mark this always hides potential risks. Such is the case between Intercontinental Great Brands LLC and Costa & Casimiro, Lda.

The Portuguese company Costa & Casimiro registered successfully the following combined European trademark in class 29 – Spreading cream based on almonds; Prepared fruit products; Vegetable fats for edible purposes; Vegetable oils for edible purposes; Mixed vegetable oils for culinary use; Vegetable extracts for food; Vegetable pates; Almonds, processed; Almond oil:

Against this mark, an application for invalidation was filed by the US company Intercontinental Great Brands on the ground of several earlier EU, Spanish and Portuguese trademarks PHILADELPHIA in class 29 – meat, fish, poultry and game; meat extracts; Canned, dried and cooked fruits and vegetables; jellies, jams, fruit sauces; eggs, milk and milk products, cheese, cream cheese; edible oils and fats.

On top of that, the US company claimed an acquired reputation for its trademarks based on Article 8(5) EUTMR. According to Intercontinental Great Brands, the Portuguese company tries to take advantage of their earlier marks by using a sign that associates with them.

The EUIPO considered the goods in both marks similar or identical. When it comes to the signs, the Office concluded that they are phonetically and visually similar to a mid-degree. The reason for this was the fact that the first part of the mark applied for VEGAN is descriptive of the goods in class 29. The second part DELPHIA duplicate the earlier marks in their last parts and conveys an association with them.

Conceptually the signs are not similar. PHILADELPHIA is a city in the USA, which name has the necessary distinctiveness for the goods in class 29.

Costa & Casimiro’s arguments that DELPHIA is a personal name were dismissed because there was no solid evidence that many people in the EU have such a name or are aware of it.

On the other hand, the US company successfully proved reputation of its marks in the EU, citing strong market shares in several countries and massive advertisement campaigns.

Based on this, the EUIPO decided that the signs are similar enough and that the available reputation of the earlier marks supports the conclusion that some unfair advantages could be taken from it through the later application. The element DELPHIA associates with PHILADELPHIA and consumers can perceive the VEGANDELPHIA brand as a vegan variant of the earlier signs.

The invalidation was upheld.

Source: Alicante news.

Is the bicycle’s design saddle visible when used or not – a key question for design protection in the EU

The Advocate General of the European Court M. SZPUNAR has issued his opinion in the case C‑472/21 Monz Handelsgesellschaft International mbH & Co. KG срещу Büchel GmbH & Co. Fahrzeugtechnik KG.

This case focuses our attention on the question of to what extent a design incorporated into a complex product should be visible in order to be suitable for industrial design protection. The case has the following background:

Monz Handelsgesellschaft International mbH & Co. KG (‘Monz’) is the holder of design No 40 2011 004 383-0001, registered at the German Patent and Trade Mark Office, DPMA since 3 November 2011 for the products ‘saddles for bicycles or motorbikes’. The design is registered with the following single representation showing the underside of a saddle:

On 27 July 2016, Büchel GmbH & Co. Fahrzeugtechnik KG (‘Büchel’) lodged an application with the DPMA for a declaration of invalidity of the contested design, claiming that it did not meet the necessary conditions for protection as to novelty and individual character. It asserted that the design was excluded from protection under Paragraph 4 of the DesignG on the ground that, as a component part of a complex product such as a ‘bicycle’ or a ‘motorcycle’, it was not visible during normal use.

By decision of 10 August 2018, the DPMA rejected the application for a declaration of invalidity, holding that there were no grounds to exclude the contested design from protection under Paragraph 4 of the DesignG. In its view, although it was true that the design applied for in relation to ‘saddles for bicycles [or] motorbikes’ was a ‘component part of a complex product’, that component nevertheless remained visible during normal use of that complex product. The DPMA considered that normal use also covered ‘the disassembly and reassembly of the saddle for purposes other than maintenance, servicing or repair work’, especially since Paragraph 1(4) of the DesignG contains ‘an exhaustive list of non-normal uses for the purposes of Paragraph 4 of the DesignG, designed as an exception and, as such, to be interpreted strictly’. The DPMA held that it followed from that provision that ‘any use by the end user which is not maintenance, servicing or repair work … therefore constitutes normal use’.

Following an objection lodged by Büchel against that decision, the Federal Patent Court, Germany declared the contested design invalid, by decision of 27 February 2020, on the ground that it did not satisfy the requirements of novelty and individual character. According to the Bundespatentgericht, under Paragraph 4 of the DesignG, only components which remain ‘visible, as component parts of the complex product, after they have been mounted/incorporated in it’ are automatically eligible for design protection. Conversely, a perspective which arises only because or when the component part of a complex product is detached cannot establish visibility such as to preclude exclusion from protection under Paragraph 4 of the DesignG. The Bundespatentgericht considered only riding a bicycle and getting on and off a bicycle as normal use for the purposes of Paragraph 1(4) of the DesignG. In its view, during such uses, the underside of the saddle is not visible either to the end-user or to another person. Monz has brought an appeal against that decision before the referring court.

In those circumstances, the Federal Court of Justice, Germany decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1. Is a component part incorporating a design a “visible” component within the meaning of Article 3(3) of [Directive 98/71] if it is objectively possible to recognize the design when the component is mounted, or should visibility be assessed under certain conditions of use or from a certain observer perspective?

2. If the answer to Question 1 is that visibility under certain conditions of use or from a certain observer perspective is the decisive factor:

(a) When assessing the “normal use” of a complex product by the end-user within the meaning of Article 3(3) and (4) of [Directive 98/71], is it the use intended by the manufacturer of the component part or complex product that is relevant, or the customary use of the complex product by the end user?

(b) What are the criteria for assessing whether the use of a complex product by the end user constitutes a “normal use” within the meaning of Article 3(3) and (4) of [Directive 98/71]?’

The Advocate General’s opinion:

1. Article 3(3) of Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs must be interpreted as meaning that

• in order for a design applied to or incorporated in a product which constitutes a part of a complex product to enjoy protection under that directive, the component in question must be visible in the situation of normal use of that complex product.

2.  Article 3(4) of Directive 98/71 must be interpreted as meaning that

• the words ‘normal use’ refer to all situations which may reasonably arise during use of a complex product by the end user.

If this is confirmed by the Court it will mean that designs incorporated into complex products will have broader scope for interpretation of what exactly is a visible use.

New EU problems for Facebook regarding privacy protection

The European Court has ruled in case C‑319/20 Meta Platforms Ireland Limited, formerly Facebook Ireland Limited, v Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband e.V.

The case concerns the issue of whether consumer protection associations bring legal proceedings for breach of privacy even without a particular mandate from consumers. The dispute has the following background:

Meta Platforms Ireland, which manages the provision of services of the online social network Facebook in the European Union, is the controller of the personal data of users of that social network in the European Union. Facebook Germany GmbH, which has its registered office in Germany, promotes the sale of advertising space at the internet address http://www.facebook.de. The Facebook internet platform contains, inter alia, at the internet address http://www.facebook.de, an area called ‘App-Zentrum’ (‘App Center’) on which Meta Platforms Ireland makes available to users free games provided by third parties. When consulting the App Center of some of those games, an indication appears informing the user that the use of the application concerned enables the gaming company to obtain a certain amount of personal data and, by that use, permission is given for it to publish data on behalf of that user, such as his or her score and other information. The consequence of that use is that the user accepts the general terms and conditions of the application and its data protection policy. In addition, in the case of a specific game, it is stated that the application has permission to post the status, photos and other information on behalf of that user.

The Federal Union, a body which has standing under Paragraph 4 of the Law on Injunctions, considers that the information provided by the games concerned in the App Center is unfair, in particular in terms of the failure to comply with the legal requirements which apply to the obtention of valid consent from the user under the provisions governing data protection. Moreover, it considers that the statement that the application has permission to publish certain personal information of the user on his or her behalf constitutes a general condition which unduly disadvantages the user.

In that context, the Federal Union brought an action for an injunction before the Regional Court, Berlin, Germany against Meta Platforms Ireland based on Paragraph 3a of the Law against unfair competition, the first sentence of point 11 of Paragraph 2(2) of the Law on Injunctions and the Civil Code. It brought that action independently of a specific infringement of a data subject’s right to protection of his or her data and without being mandated to do so by such a person.

The Regional Court, Berlin ruled against Meta Platforms Ireland, in accordance with the form of order sought by the Federal Union. The appeal brought by Meta Platforms Ireland before the Higher Regional Court, Berlin, Germany was dismissed. Meta Platforms Ireland then brought an appeal on a point of law (Revision) before the referring court against the dismissal decision adopted by the Higher Regional Court, Berlin.

The referring court considers that the action brought by the Federal Union is well founded, in so far as Meta Platforms Ireland infringed Paragraph 3a of the Law against unfair competition and the first sentence of point 11 of Paragraph 2(2) of the Law on Injunctions, and used an invalid general condition, within the meaning of Paragraph 1 of the Law on Injunctions.

However, that court has doubts as to the admissibility of the action brought by the Federal Union. It takes the view that it cannot be ruled out that the Federal Union, which did indeed have standing to bring proceedings on the date on which it brought the action – on the basis of Paragraph 8(3) of the Law against unfair competition and point 1 of the first sentence of Paragraph 3(1) of the Law on Injunctions – lost that status during the proceedings, following the entry into force of the GDPR and, in particular, Article 80(1) and (2) and Article 84(1) thereof. If that were the case, the referring court would have to uphold the appeal on a point of law brought by Meta Platforms Ireland and dismiss the action of the Federal Union, since, under German procedural law, standing to bring proceedings must endure until the end of the proceedings at last instance.

According to the referring court, the answer in that regard is not clear from the assessment of the wording, scheme and objectives of the provisions of the GDPR.

As regards the wording of the provisions of the GDPR, the referring court notes that the existence of standing to bring proceedings of not-for-profit bodies, organisations or associations which have been properly constituted in accordance with the law of a Member State, pursuant to Article 80(1) of the GDPR, presupposes that the data subject has mandated a body, organisation or association for it to exercise on his or her behalf the rights referred to in Articles 77 to 79 of the GDPR and the right to compensation referred to in Article 82 of the GDPR where the law of a Member State so provides.

The referring court states that standing to bring proceedings under Paragraph 8(3)(3) of the Law against unfair competition does not cover such an action brought on the basis of a mandate and on behalf of a data subject in order to assert his or her personal rights. On the contrary, it confers on an association, by virtue of a right peculiar to it and stemming from Paragraph 3(1) and Paragraph 3a of the Law against unfair competition, standing to bring proceedings on an objective basis against infringements of the provisions of the GDPR, independently of the infringement of specific rights of data subjects and of a mandate conferred by them.

In addition, the referring court observes that Article 80(2) of the GDPR does not provide for an association’s standing to bring proceedings in order to secure the application, objectively, of the law on the protection of personal data since that provision presupposes that the rights of a data subject laid down in the GDPR have actually been infringed as a result of the processing of specific data.

Furthermore, an association’s standing to bring proceedings, such as that provided for in Paragraph 8(3) of the Law against unfair competition, cannot result from Article 84(1) of the GDPR, under which the Member States are to lay down the rules on other penalties applicable to infringements of that regulation and are to take all measures necessary to ensure that they are implemented. The standing of an association, such as that referred to in Paragraph 8(3) of the Law against unfair competition, cannot be regarded as constituting a ‘penalty’ within the meaning of that provision of the GDPR.

As regards the scheme of the provisions of the GDPR, the referring court considers that it may be inferred from the fact that it harmonised, inter alia, the powers of the supervisory authorities that it is principally for those authorities to verify the application of the provisions of that regulation. However, the expression ‘without prejudice to any other … remedy’, which appears in Article 77(1), Article 78(1) and (2) and Article 79(1) of the GDPR, may undermine the argument that oversight of the application of the law is exhaustively governed by that regulation.

As regards the objective of the provisions of the GDPR, the referring court notes that the effectiveness of that regulation may support an argument in favour of associations having standing to bring proceedings on the basis of competition law, in accordance with Paragraph 8(3)(3) of the Law against unfair competition, independently of the infringement of specific rights of data subjects, since that would allow an additional opportunity to supervise the application of the law to remain, in order to ensure as high a level as possible of protection of personal data, in accordance with recital 10 of the GDPR. Nonetheless, accepting that associations have standing to bring proceedings under competition law may be considered to run counter to the objective of harmonisation pursued by the GDPR.

In the light of those considerations, the Federal Court of Justice decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do the rules in Chapter VIII, in particular in Article 80(1) and (2) and Article 84(1), of [the GDPR] preclude national rules which – alongside the powers of intervention of the supervisory authorities responsible for monitoring and enforcing the Regulation and the options for legal redress for data subjects – empower, on the one hand, competitors and, on the other, associations, entities and chambers entitled under national law, to bring proceedings for breaches of [the GDPR], independently of the infringement of specific rights of individual data subjects and without being mandated to do so by a data subject, against [the person responsible for that infringement] before the civil courts on the basis of the prohibition of unfair commercial practices or breach of a consumer protection law or the prohibition of the use of invalid general terms and conditions?’

The Court’s decision:

Article 80(2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) must be interpreted as not precluding national legislation which allows a consumer protection association to bring legal proceedings, in the absence of a mandate conferred on it for that purpose and independently of the infringement of specific rights of the data subjects, against the person allegedly responsible for an infringement of the laws protecting personal data, on the basis of the infringement of the prohibition of unfair commercial practices, a breach of a consumer protection law or the prohibition of the use of invalid general terms and conditions, where the data processing concerned is liable to affect the rights that identified or identifiable natural persons derive from that regulation.