Both questions are admissible. First question not hypothetical and relates to main proceedings.
"The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, in particular, judgments of 16 June 2015, Gauweiler and Others, C-62/14, EU:C:2015:400, paragraph 25, and 8 September 2015, Taricco and Others, C-105/14, EU:C:2015:555, paragraph 30).
That is not the situation in the present case, in so far as the first question referred to the Court, which concerns the interpretation of EU law, is in no way hypothetical, and relates to the actual facts of the case in the main proceedings, since that question concerns the interpretation of provisions of EU law that the referring court considers to be of crucial importance for the decision it will be required to make in the main proceedings, more particularly as regards the detailed rules governing exemption from payment of the private copying levy when media and devices are purchased for purposes clearly unrelated to private copying."
The second question being identical to a question that has already been subject to another preliminary ruling does not result in inadmissibility.
"Such a plea of inadmissibility must be rejected. Even if the question raised is materially identical to a question which has already been the subject of a preliminary ruling in a similar case, that fact in no way prohibits a national court from referring a question to the Court for a preliminary ruling and does not result in the inadmissibility of the question raised (see, to that effect, judgments of 6 October 1982, Cilfit and Others, 283/81, EU:C:1982:335, paragraphs 13 and 15; 2 April 2009, Pedro IV Servicios, C-260/07, EU:C:2009:215, paragraph 31, and 26 November 2014, Mascolo and Others, C-22/13, C-61/13 to C-63/13 and C-418/13, EU:C:2014:2401, paragraph 49)."
Article 5(2)(b) of Directive 2001/29/EC precludes national legislation that depends on agreements between, on the one hand, an entity which has a legal monopoly on the representation of the interests of authors of works and, on the other hand, those liable to pay compensation or their trade associations where only the final user can request an unduly paid levy.
" EU law, in particular, Article 5(2)(b) 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 precluding national legislation, such as that at issue in the main proceedings, that, on the one hand, subjects exemption from payment of the private copying levy for producers and importers of devices and media intended for use clearly unrelated to private copying to the conclusion of agreements between an entity which has a legal monopoly on the representation of the interests of authors of works, and those liable to pay compensation, or their trade associations, and, on the other hand, provides that the reimbursement of such a levy, where it has been unduly paid, may be requested only by the final user of those devices and media. "
Imposing a limitation on the principle of legal certainty by calling into question certain legal relationships, requires good faith and a risk of serious difficulties.
"It is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely, that those concerned should have acted in good faith and that there should be a risk of serious difficulties (see, inter alia, judgments of 10 January 2006, Skov and Bilka, C-402/03, EU:C:2006:6, paragraph 51; 3 June 2010, Kalinchev, C-2/09, EU:C:2010:312, paragraph 50, and 27 February 2014, Transportes Jordi Besora, C-82/12, EU:C:2014:108, paragraph 41)."
CJEU already ruled on a similar situation in the Padawan judgment (IPPT20101021), so the SIAE cannot claim that the legislation in the main proceedings complied with EU law.
"In the present case, as regards the first criterion, it must be noted that, in judgment of 21 October 2010, Padawan (C-467/08, EU:C:2010:620, paragraph 53), the Court had already ruled on the compatibility of EU law of a system providing for the indiscriminate application of the private copying levy to all types of digital reproduction devices and media, including in the event that they are acquired by persons other than natural persons for purposes clearly unrelated to private copying. Under those circumstances, the SIAE may not claim that it was satisfied that the legislation at issue in the main proceedings complied with EU law because of the lack of objection on the part of the Commission as to the compatibility of that legislation with EU law."
The existence of serious difficulties has not been demonstrated.
"In any event, as regards the second criterion, it must be noted that the SIAE has not demonstrated the existence of serious difficulties, having merely indicated that the compensation has already been distributed in full to the recipients and that it ‘was probably not in a position to recover such amounts’."
IPPT20160922, CJEU, Microsoft Mobile Sales v SIAE
C-110/15 - ECLI:EU:C:2016:717
