Judgment of the Court (Grand Chamber) of 29 January 2008 (Reference for a preliminary ruling from the Juzgado de lo Mercantil No 5 de Madrid — Spain) — Productores de Música de España (Promusicae) v Telefónica de España SAU

(Case C-275/06) (1)

(Information society - Obligations of providers of services - Retention and disclosure of certain traffic data - Obligation of disclosure - Limits - Protection of the confidentiality of electronic communications - Compatibility with the protection of copyright and related rights - Right to effective protection of intellectual property)

(2008/C 64/12)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil No 5 de Madrid

Parties to the main proceedings

Applicant: Productores de Música de España (Promusicae)

Defendant: Telefónica de España SAU

Re:

Reference for a preliminary ruling — Juzgado de lo Mercantil no 5, Madrid, Spain — Interpretation of Articles 15(2) and 18 of Directive 2001/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1), Article 8 (1) and (2) 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 (OJ 2001 L 167, p. 10) and Article 8 of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ 2004 L 157, p. 45) — Treatment of data generated by communications made in the context of the supply of an information society service — Duty of operators of electronic communications networks and services, providers of telecommunications network access and providers of data storage services to retain and make available such data — Not where civil proceedings are concerned.

Operative part of the judgment

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), 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, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and 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) do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.

(1)  OJ C 212, 2.9.2006.