6 Recitals 3, 10, 20 and 32 of Directive 2004/48 state:

‘(3) ... [W]ithout effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished. It is therefore necessary to ensure that the substantive law on intellectual property, which is nowadays largely part of the acquis communautaire, is applied effectively in the Community. In this respect, the means of enforcing intellectual property rights are of paramount importance for the success of the Internal Market.

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(10) The objective of this Directive is to approximate legislative systems so as to ensure a high, equivalent and homogeneous level of protection in the Internal Market.

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(20) Given that evidence is an element of paramount importance for establishing the infringement of intellectual property rights, it is appropriate to ensure that effective means of presenting, obtaining and preserving evidence are available. The procedures should have regard to the rights of the defence and provide the necessary guarantees, including the protection of confidential information.

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(32) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of that Charter.’

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21) In that case, the case-law of the Bundesgerichtshof (Federal Court of Justice) nonetheless places on the owner of the internet connection a secondary burden to present the facts. The owner discharges that secondary 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. Although a family member of the owner of the internet connection had access to that connection, the owner of that connection is not, however, required to provide further details 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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43) It is clear from recital 32 of Directive 2004/48 that that directive respects fundamental rights and observes the principles recognised in particular by the Charter. In particular, that directive seeks to ensure full respect for intellectual property, in accordance with Article 17(2) of the Charter.

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46) Second, it should be noted that Article 52(1) of the Charter states, inter alia, that any limitation on the exercise of the rights and freedoms recognised by the Charter must respect the essence of those rights and freedoms and that it is apparent from the case-law of the Court that a measure which results in serious infringement of a right protected by the Charter is to be regarded as not respecting the requirement that such a fair balance be struck between the fundamental rights which must be reconciled (judgment of 16 July 2015, Coty Germany, C‑580/13, EU:C:2015:485, paragraph 35).

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48) In that regard, it should be made clear that, as regards respect for private life in a strict sense, it is clear from the wording of Article 7 of the Charter that the protection granted by that article must cover ‘everyone’ and is not confined only to family members of a person who the judicial authorities have ordered to produce that evidence, since those family members are not intended to enjoy any special protection on that basis.

49) However, it cannot be contested that, under Article 7 of the Charter, persons belonging to the same family may, as such, benefit from special protection allowing them not to be compelled to comply with an obligation requiring them to incriminate one another, where one or another of them is suspected of having committed an illegal act.

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