Damages under the IP Enforcement Directive a decade on - France

As to France, some decisions have been taken by the French High Court, regarding damages awards for infringement, but these do not explain in detail the different grounds for prejudice under Article 13 of the Enforcement Directive.

The Enforcement Directive was implemented in French law by an Act of October 20, 2009. Article 13 was implemented in the Intellectual Property code (article L331-1-3 for works of art and performances). 

In French law, the loss of promotion of the author’s name is considered as a moral prejudice (attribution right). In the case of performers, this attribution right is stated in article L212-2 of the Intellectual Property Code. The infringement of that right would not result in the award of damages under the ground of unfair profits, but under moral prejudice. Moral prejudice could include damages for emotional stress and loss of reputation. 

Damages awards are not determined by the High Court but by lower courts, on the basis of their sovereign power (for example, see: First Civil chamber of the High Court, October 31, 2012). This seems to have been treated by the High Court as a reason to reject a request to submit to the European Court of Justice a preliminary question regarding Article 13 of the Enforcement Directive and its French implementation. 

The question which the parties proposed referring was: regarding Article 13.1 (b) of the Enforcement Directive can a judge award damages below the commercial price the owner of the intellectual property right actually charges for the use of the infringed work, in the European Union? 

But the High Court refused to refer the question, stating that this question was for the lower court to determine and so could not be submitted. The High Court also rejected the appeal in cassation, again relying on the principle that damages awards for infringement was within the lower courts’ sovereign power. 

This decision is a reminder that the power of European legislation to harmonise laws and remedies is limited to the extent that the national courts are prepared to allow it. Particularly where the legal tradition of a Member State appears to give a clear interpretation, the court has no obligation to ask for a CJEU ruling, even if other Member States have a different view. Of course, it is likely that eventually a case will arise where the amount at stake justifies one Member State or another asking the CJEU for clarification. But given the rarity of rulings on damages (since the parties often settle once liability has been established), it may be many years before any more comprehensive harmonisation takes place.