In Stichting de Thuiskopie v Opus Supplies Deutschland GmbH the Dutch Supreme Court recently referred two questions to the Court of Justice of the European Communities for a preliminary ruling. The questions concern the concepts of ‘fair compensation’ and ‘three-step-test’ in the context of the Information Society Directive. The questions are as follows:
"(i) Does Directive 2001/29/EC, more specifically article 5(2)(b) and (5), provide any bases for answering the question of who should be considered under national law the person entitled to receive the ‘fair compensation’ referred to in article 5(2)(b)? And, if so, which?
(ii) If there is a direct purchase in which the buyer is domiciled in a Member State other than the one of the seller, does article 5(5) of the Directive then require the interpretation of national law in such a broad manner that, at least in one of the countries involved in the direct purchase, the ‘fair compensation’ referred to in article 5(2)(b) is owed by a commercially acting debtor?".
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