Today has been known that the National Court said void the Order of President PRE/1743/2008 by setting out the amounts and equipment and media subject to the payment of compensation for private copying.
Here you can see ruling (pdf)
The reasons for this void are based on failure to comply with formal requirements for the development of a mandatory standard. That is, that order is a standard and as such must be defined with all legal requirements, including the sentence, the absence of mandatory report of the State Council and the absence economic reports to justify the amounts indicated in the Order of the Presidency.
The statement first examines whether there is a rule or to a mere administrative act, which is essential to determine what the requirements are developed.
How could it be otherwise concludes that this is a rule intended to produce legal effects and general oblgiatorios therefore emits who must meet the formal requirements for processing and approval.
Thereafter and before the absence of both the State Council report :
"The intervention of the State Council is not therefore a mere formality but acts as a preventive security as possible to ensure fitness for duty in the exercise of regulatory power."
as memory in the absence of economic justification and an obligation under Article 24.1.a of Law 50/1997 of the Government :
"1. The development of the regulations shall conform to the following procedure :
- Initiating the process of drawing up a regulation will be carried out by the middle management group by preparation of corresponding draft, which, together with a report on the need and opportunity for one and a financial report containing the estimated cost it will entail. "
determines the invalidity of the implementing regulation Article 25 of the LPI, the omission of both requirements, but essential formal, embodied in the Order PRE/1743/2008.
The invalidity in this case occurs according to Article 62.2 of Law 30/1992
also be null and void the administrative provisions that violate the Constitution , Laws or other senior administrative provisions, which govern matters reserved to the Act, and establish the non-retroactivity of penal provisions favorable or restrictive of individual rights.
Of course this does not mean that the canon digital display is null or not effects. In its present form is compatible with the European ruling and this ruling does not change your situation.
regard to the effects of the annulment, the statement points that compensation be private in nature and do not come to appreciate the material aspects of the application, no competition (it is a contentious-administrative court) to decide on the amounts paid under the term of the Order.
But the sentence if it has effects that open the door to claims for monies paid.
At first I thought that no amounts could not be applied until the adoption of a new regulation, but the truth is that the sentence to nullify the Order allows the effect will restore of the Single Transitional Provision of the Law 23/2006, which amended the Copyright Law. That DTU, established the amounts, carriers and equipment subject to royalties until the approval of the Order pertiente. Since it is as if it had not exsit, continues to apply its contents.
It so happens that the amounts are not the same and that, for example, hard disks were not included in the law, which can generate the right to return the sums received or in excess.
So understand that all amounts received in respect of computer hard drives must be returned or admitrise your claim. Same with the USB memory, mobile phones, etc. that are not provided in Law 23/2006 and were in the Order itself PRE/1743/2008
To know the differences and the equipment and media enough to see the contents of the DTU and Law 23/2006 on the first article of the Order.
What is clear is that this cancellation may cause a major problem to those who have handled or collected by these concepts and that the claim for these items can exercise the individuals.
.JPG)
