On 16 April 2015, Advocate General Cruz Villalón issued an opinion on a request for a preliminary ruling from the Federal Court of Justice of Germany (Bundesgerichtshof) in case Coty Germany GmbH v Stadtsparkasse Magdeburg (case C-580/13). The question related to Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (the "Enforcement Directive").

Coty Germany had bought a counterfeit bottle of one of its perfumes on a website by using a pseudonym. According to the instructions of the seller, Coty Germany paid the purchase price on a bank account of the German bank Sparkasse. It then asked Sparkasse to disclose the bank details of the seller of the allegedly infringing product. However, Sparkasse refused for reasons of banking secrecy and Coty Germany brought an action before a German court.

When the case reached the German Federal Court of Justice, it decided to stay the proceedings and question the Court of Justice of the EU ("ECJ") on whether the German law allowing banks to reject a request for information by invoking banking secrecy is consistent with the right to information of Article 8 of the Enforcement Directive.

Article 8 of the Enforcement Directive grants a right to information to the holder of an intellectual property right in infringement proceedings concerning that right. Such information must be provided by, among others, the person who was found to be providing on a commercial scale services used in infringing activities. However, Article 8(3) of the Enforcement Directive provides that this right to information applies without prejudice to statutory provisions that govern the protection of confidentiality of information sources or the processing of personal data. On the basis of this exception, German law allows banks to refuse to provide information for reasons of banking secrecy.

The Advocate General analysed the question of the compatibility of the national law on banking secrecy with EU law from a fundamental rights perspective. He considered that banking secrecy could fall within the exception for the processing of personal data provided for in Article 8(3) of the Enforcement Directive, which is protected by Article 8 of the EU Charter of Fundamental Rights (the "EU Charter"). However, the possibility to invoke banking secrecy not only limits the right to information of Article 8 of the Enforcement Directive, but also two fundamental rights of the holder of an intellectual property right, i.e., its intellectual property right (Article 17(2) EU Charter) and its right to an effective remedy (Article 47 EU Charter). To be legitimate, such limitations must satisfy the conditions of Article 52(1) of the EU Charter: the limitation must (i) be provided for by law; (ii) respect the essence of the rights and freedoms in question; (iii) genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others; (iv) be necessary to attain such objectives; and (v) respect the principle of proportionality.

According to the Advocate General, it is for the national court to determine whether German law meets all these conditions. However, with regard to the second condition, the Advocate General noted that in a case such as the one under analysis, the holder of an intellectual property right only seems to have an actual right to an effective enforcement of its intellectual property rights in case the bank does not rely on banking secrecy principles. The Advocate General concluded that national rules cannot allow banks to invoke banking secrecy unconditionally to reject requests for information regarding the name and the address of the account holder.

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