17) In such a case, the case-law of the Bundesgerichtshof (Federal Court of Justice) nonetheless places on the owner of the internet connection a secondary burden of proof. The owner discharges that burden to the requisite standard by explaining that other persons, whose identity he discloses, where appropriate, had independent access to his internet connection and are therefore capable of having committed the alleged infringement of copyright. If a family member had access to the internet connection in question, the owner of that connection is not however required to supply additional information relating to the time and the nature of the use of that connection, having regard to the protection of marriage and family guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the corresponding provisions of the German Basic Law.

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35) It should be emphasised in that regard that, when applying of the provisions transposing Directives 2001/29 and 2004/48, the Member States are naturally bound by the provisions of the Charter. The right to respect for private and family life is protected by Article 7 of the Charter. However, in disputes relating to copyright, the right to respect for private and family life may find itself in competition with the fundamental right to property enshrined in Article 17 of the Charter. Intellectual property is expressly mentioned in paragraph 2 of that article.

36) Furthermore, the Court has already had occasion to emphasise that the applicant’s right to information in the context of proceedings relating to the protection of intellectual property rights is covered by the right to an effective remedy guaranteed in Article 47 of the Charter and thereby ensures the effective protection of the intellectual property right. ( 9 )

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38) In the context of the exercise of that reconciliation, it is necessary to ensure that the essential content of the fundamental rights in question is observed. Thus, the Court has held that it is contrary to both the fundamental right to property and the right to an effective remedy to enable a banking institution to invoke bank secrecy, in the name of the right to protection of personal data enshrined in Article 8 of the Charter, in order to refuse to supply the data of an account holder that would have allowed an action relating to the protection of intellectual property rights to be brought against him. ( 12 )

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41) In addition, it seems to me that two other provisions of the Charter may still to be taken into account when weighing up the fundamental rights.

42) In the first place, there is Article 20 of the Charter, which enshrines equality before the law. In fact, according to the information supplied by Bastei Lübbe in its observations, around 70% of internet connections in Germany are ‘family connections’, that is to say, connections used in a family context. There thus remains 30% of connections that are not used in such a context, some of which are probably owned by persons living alone. If the use of an internet connection in a family context allowed liability for infringements of copyright to be easily avoided, that would result in the unfavourable treatment of persons who, because they live alone, do not allow other members of the family to access their internet connection. Although persons living as part of a family are not in the same situation as those living alone from the aspect of the right to respect for family life, such a difference in situation does not exist as regards liability for infringements of copyright. Thus, the mere fact of living with other family members cannot automatically entail exclusion from that liability.

43) In the second place, Article 54 of the Charter prohibits abuse of the rights recognised therein. It is true that that article is directed mainly against acts which, under cover of the rights recognised by the Charter, seek in reality to combat fundamental rights and to destroy them. ( 15 ) Clearly, infringement of an intellectual property right does not constitute an act of that type.

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47) In the light of the foregoing, I propose that the Court should answer the questions for a preliminary ruling referred by the Landgericht München I (Regional Court, Munich I, Germany) as follows:

Article 8(2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and Article 13(1) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as meaning that they do not require the introduction into the domestic laws of the Member States of a presumption that the holders of an internet connection are liable for infringements of copyright committed by means of that connection. However, if domestic law provides for such a presumption in order to ensure the protection of those rights, that presumption must be applied consistently in order to ensure the effectiveness of that protection. The right to respect for family life, recognised in Article 7 of the Charter of Fundamental Rights of the European Union, cannot be interpreted in such a way as to deprive rightholders of any real possibility of protecting their right to intellectual property enshrined in Article 17(2) of the Charter of Fundamental Rights.