Thursday 17 January 2013

SFR Scores Double Victory


On January 15th last, the same day that it won an important victory before the Paris Commercial Court in its fight with Free (relating to its mobile phones and principles of consumer law), SFR was given more good news by the French Constitutional Council regarding the Act of December 20, 2011 respecting private copy levies.

At issue was a provision of the Act (article 6, paragraph II) whose purpose was to retroactively validate levies that were the subject-matter of litigation prior to June 18, 2011 and which could have been challenged on the same grounds as those that had led to the ruling by the Conseil d’Etat of June 17, 2011 (essentially these grounds related to levies improperly paid on professionally acquired media and equipment whose presumed use did not fall under the private copying exception), a ruling by France's supreme court for administrative law which followed in the footsteps of the CJEU's Padawan ruling (see here). 

SFR had called into question (via the so-called QPC or priority constitutionality question) the legality of invoices received from Copie France (the entity tasked with collecting the levy) for hard drives incorporated into its boxes.  It argued that such invoices had been issued on the basis of a decision of the private copy commission of December 17, 2008 that had been quashed by the Conseil d’Etat in its June 17, 2011 ruling.   According to SFR this provision violated, inter alia, the the principle of separation of powers guaranteed by Article 16 of the 1789 Declaration of Human Rights. 

In its January 15, 2013 decision the Council declared the provision unconstitutional.  It first recalled the general principle that while the legislator is free to retroactively change a legal rule or validate an administrative act he may do so only for overriding reasons of general interest and then held that in the case at hand « the financial reasons invoked in support of the validation of the remuneration which was the subject-matter of litigation that was ongoing as of June 18, 2011, which relate to sums of money whose importance has not been established, cannot be regarded as sufficient to warrant such a violation of the rights of those who had initiated legal action prior to said date ».

Constitutional Council Ruling here

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