The Handelsgericht Wien granted the application for an order to produce accounts and reserved its decision on the claim for payment. That judgment was upheld on appeal. Amazon, which is of the view that the Austrian blank cassette levy is, for various reasons, contrary to EU law, brought the matter before the Oberster Gerichtshof (Supreme Court, Austria). That court seeked a ruling from the Court of Justice on the interpretation of the relevant provisions of EU law.
In a ruling published on Thursday, the EU Court of Justice said EU law does not allow the private copying levy to be collected in cases where the intended use is clearly not the making of private copies.
"However, under certain conditions, EU law does not preclude such a system of a general levy with the option of reimbursement in cases where the intended use is not the making of private copies," it added.
The ruling does not decide the dispute, which is still before the Austrian supreme court, but does become binding on other national courts handling a similar issue.
Austria's supreme court now has to verify whether practical difficulties justify such a system and "whether the right to reimbursement is effective and does not make repayment of the levy paid excessively difficult".
It allowed the "rebuttable presumption" that individuals are using recording media for private purposes on two conditions: practical difficulties in determining whether the use is private must warrant such a presumption, and the presumption must not trigger the levy in cases where media are clearly used for non-private purposes.