Court of Justice 11 November 2021, C-559/20 (Koch Media GmbH v FU.)

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In this Opinion, Advocate General Campos Sánchez-Bordona advises that lawyers' fees incurred in connection with an extrajudicial warning notice (Abmahnung) ordering cessation of an intellectual property rights infringement fall within the scope of Article 14 of Directive 2004/48/EC as 'other expenses' directly and closely connected to potential judicial proceedings. The AG opines that a national provision (Paragraph 97a(3) UrhG) capping the recoverable value in dispute at EUR 1,000 where the infringer is a natural person acting outside a trade or profession is not, in principle, incompatible with Article 14, provided the national court retains discretion to disapply that ceiling on grounds of fairness where strict application would result in reimbursement significantly below the reasonable and proportionate rate actually charged. The AG further opines that, in exercising that fairness assessment, the national court may consider all relevant circumstances, including the currency of the protected work, its publication period, and the nature of the infringement (such as making the work available for free download on an open file-sharing platform without digital rights management).AI