The Marrakesh Treaty Judgment: The Ecj Clarifies Eu External Powers Over Copyright Law

Gesa Kübek, PhD candidate at the police pull faculty of the University of Passau.

On 14th Feb 2017, the European Court of Justice (ECJ) concluded, inward Opinion 3/15, that the European Union (EU) is exclusively competent to conclude the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (hereafter: Marrakesh Treaty). Its determination inward Opinion 3/15 mirrors, at source sight, Advocate General (AG) Wahl’s Opinion, which every bit argued that the European Union has exclusive competence to conclude the Marrakesh Treaty. Influenza A virus subtype H5N1 closer expression at Opinion 3/15, however, reveals that the Court opted for a much stricter interpretation of the range of the EU’s Common Commercial Policy (CCP) – ie the EU’s international merchandise powers – than the AG. Moreover, the Court’s respond to the enquiry of exclusivity does non clarify the right pick of legal basis.

The next spider web log postal service provides an overview of the Court’s Opinion 3/15 in addition to a brusk analysis thereof. The source portion describes the conflict at stake in addition to the arguments of the parties. The minute portion outlines the Court’s position. The terminal department discusses about of the implications of Opinion 3/15 for European Union treaty-making.

The conflict at stake: Questions of exclusivity in addition to the pick of legal basis

In June 2013, the World Organisation on Intellectual Property (WIPO) finalised the negotiations of the Marrakesh Treaty, which aims to facilitate access to published piece of job for persons who are blind, visually impaired or otherwise impress disabled (hereafter: “beneficiary persons”). The Marrakesh Treaty stipulates 2 separate, but interrelated instruments to fulfil its objectives. First, it obliges its contracting parties to supply for an exception or limitation to the rights of reproduction, distribution in addition to making available to the populace inward monastic enjoin to brand format copies to a greater extent than readily available for beneficiary persons. Second, it facilitates the cross-border central of accessible format copies.

In Apr 2014, the European Union Council decided to sign the Marrakesh Treaty for the European Union based on Article 207 TFEU (the EU’s CCP power) inward conjuncture amongst Article 114 TFEU (the EU’s internal marketplace seat power, which is the footing for harmonising copyright police pull inside the EU, amidst other things). The subsequent Commission proposal for the conclusion of the understanding was, however, rejected past times the Member U.S. as represented inward the Council, which caused vehement institutional debate over the pick of legal basis. According to the Commission, Arts. 207 in addition to 114 TFEU were correctly selected. In the alternative, the Marrakesh Treaty may endure based on the CCP alone, which the Lisbon Treaty confirms as an exclusive competence (Art. three (1) (e) TFEU). In whatsoever event, the Commission argued that the rights in addition to obligations comprised past times the Marrakesh Treaty were largely harmonized past times European Union internal legislation. As a result, it asserted that exclusive European Union competence tin endure implied (Art. three (2) TFEU). 

The viii intervening Member U.S. rejected the supposition of European Union exclusivity. Instead, inward their view, the competences to conclude the Marrakesh Treaty ought to endure shared, which may outcome inward the conclusion of a “mixed agreement” that lists both the European Union in addition to the Member U.S. as contracting parties. Given the persisting institutional conflicts, the Commission asked the Court to clarify whether the European Union has the exclusive competence to conclude the Marrakesh Treaty.

As was stated above, AG Wahl supported the Commission’s hollo for for exclusive European Union treaty-making powers. Somewhat surprisingly, the AG, however, determined that the Marrakesh Treaty should endure concluded on the footing of Art. 207 TFEU on the CCP in addition to – as contended past times numerous Member U.S. - Art. xix (1) TFEU, the EU’s powerfulness to adopt many non-discrimination laws. The latter provision underlines the Marrakesh Treaty’s objective to promote non-discrimination, equal opportunity, accessibility in addition to participation of disabled persons inward the society. Despite the implication of exclusivity, the pick of Art. xix (1) TFEU entails of import procedural consequences: As the provision stipulates that the adoption of European Union legislation requires unanimity inward the Council, European Union treaty-making nether the anti-discrimination powerfulness every bit grants the Member U.S. veto powers inward the Council (Art. 218 (8) TFEU).

The Court‘s seat inward Opinion 3/15

In monastic enjoin to respond the preliminary question, the Court, first, examined whether the Marrakesh Treaty, inward total or inward part, falls inside the range of the CCP. Thereafter, the ECJ analysed whether exclusivity tin endure implied inside the pregnant of Art. three (2) TFEU.

The reach of “commercial aspects of intellectual belongings rights”

To laid about with, the Court recalled that according to settled case-law, an European Union human activity falls inside the CCP “if it relates specifically to international merchandise inward that it is essentially intended to promote, facilitate or regulation merchandise in addition to has direct in addition to immediate effects on trade” (Daiichi Sankyo). Conversely, the mere fact that an European Union human activity is liable to receive got implications on international merchandise is non plenty for it to endure concluded nether the CCP.

In its subsequent reasoning, the Court outlined that neither i of the aforementioned instruments of the Marrakesh Treaty intends to promote, facilitate or regulation international trade. The Court’s Opinion is specially boom amongst regard to the import in addition to export of format copies, as “there is no incertitude that those rules relate to the international merchandise of such copies” (para 87). Nevertheless, the Court stated that the cross-border central specified past times the Marrakesh Treaty cannot endure equated amongst international merchandise for commercial purposes. On the i hand, the objective of the circulation in addition to central of format copies is non-commercial inward nature. The Marrakesh Treaty solely uses cross-border transactions as a hateful to ameliorate access of beneficiary persons to accessible format copies in addition to non to promote, regulation or facilitate trade. On the other hand, the Marrakesh Treaty’s non-commercial grapheme results from the fact that it does by in addition to large non stipulate merchandise for profit.

Indeed, the Marrakesh Treaty provides that merchandise inward format copies covers only authorised entities, which operate on a non-profit footing in addition to supply their service to beneficiary persons alone. According to AG Wahl, the non-profit footing of merchandise inward format copies, is, however, irrelevant for the application of the CCP. To that extent, the AG proposed a real wide Definition of commercial aspects of intellectual belongings rights (IPR), which Article 207 (1) TFEU expressly includes inside the range of the CCP. In his view, the CCP does non exclude from its ambit transactions or activities of a non-commercial nature as the mere central of goods in addition to services implies that they are beingness traded. Instead, Art. 207 (1) TFEU excludes non-commercial aspects of IPR, i.e. number areas that are non strictly or direct concerned amongst merchandise inward their entirety, such as moral rights.

The Court, however, rejected the claim that commercial aspects of IPR carve out only those rules relating to moral rights. Such a wide interpretation would, inward the eyes of the Court, “lead to an excessive extension of the champaign covered past times the mutual commercial policy past times bringing inside that policy rules that receive got no specific link amongst international trade.” (para 85) Consequently, the ECJ concluded that the Marrakesh Treaty falls exterior the ambit of the CCP.

Implied exclusivity in addition to the “ERTA doctrine”

Subsequently, the Court analysed whether exclusivity tin nevertheless endure implied via the well-known “ERTA doctrine” (referring to the Court’s ERTA judgment), which is codified inward Article three (2) TFEU. According to this doctrine, European Union obtains exclusive treaty-making powers where the conclusion of an international understanding “may demeanour upon mutual rules or modify their scope”.  In its ERTA draw of piece of job of illustration law, the Court has developed a two-level examine for establishing external Member State pre-emption: First, it conducts a “comprehensive in addition to detailed analysis” to determine whether the provisions of the envisaged understanding are largely covered past times mutual European Union rules (Opinion 2/91). Second, it determines whether the conclusion of the international understanding affects the “uniform in addition to consistent application” of these mutual European Union rules “and the proper performance of the arrangement which they establish.” (Opinion 1/13, discussed here).

There was lilliputian disagreement betwixt the parties that the Marrakesh Agreement had to endure implemented inside the framework of Directive 2001/29 on the harmonisation of for certain aspects of copyright in addition to related rights inward the data society.  The Court, however, pointed out that “it is clear (..) that the European Union legislature brought nigh only a partial harmonisation of copyright in addition to related rights, given that the directive is non intended to take away or to forbid differences betwixt national laws which create non adversely demeanour upon the performance of the internal market.” (para 115) Indeed, Directive 2001/29 provides, inside its harmonized legal framework, for considerable Member State discretion as regards the implementation of exceptions in addition to limitations to distribution for the create goodness of people amongst disabilities. Does such a repose Member State competence hateful that the Marrakesh Treaty is non largely covered past times mutual European Union rules, in addition to hence forbid implied exclusivity?

The Court answered this enquiry inward the negative. Directive 2001/29 subjects the Member States’ remaining competence to a number of conditions. The Member States’ discretion tin hence only endure exercised inside the limits enjoined past times European Union law, in addition to then that the Member U.S. “are non gratis to determine, inward an un-harmonised manner, the overall boundaries of the exception or limitation for persons amongst a disability.” (para 122) Moreover, the Marrakesh Treaty – dissimilar Directive 2001/29 – imposes an obligation on the contracting parties to supply for an exception or limitation. The Member U.S. are hence mandated to comply amongst the restraints imposed past times European Union law. As a result, the Court concludes that independent external Member State activity would demeanour upon mutual European Union rules. The European Union is hence exclusively competent to conclude the Marrakesh Treaty.

Opinion 3/15 in addition to European Union treaty-making: Influenza A virus subtype H5N1 brusk analysis

As stated inward the introduction, the Court’s finding of (implied) exclusivity does non come upward as a surprise to many observers. Neither does the wide interpretation of the “largely covered” portion of the ERTA-test. After all, the Court already confirmed inward Opinion 1/03 and, to a greater extent than recently, inward Green Network, that considerable Member State discretion inward the implementation of European Union legislation does non dominion out exclusivity. Nevertheless, as was pointed out past times AG Wahl, the illustration police pull “begs the question: when is an surface area sufficiently covered past times European Union rules to exclude Member State competences to human activity externally?” (para 130 of the opinion) By inference, to what extent does the European Union receive got to do its internal competence to trigger the “ERTA effect”?

Green Network in addition to Opinion 3/15 suggest that the Court volition house much greater emphasis on the effects of international agreements on mutual European Union rules, rather than on the extent of their textile overlap. Even if the European Union police pull inward house specifies repose Member State powers, in addition to is therefore, arguably, non largely harmonised, (adverse) affects on the EU’s internal legal framework suffice to trigger implied exclusivity inside the pregnant of Art. three (2) TFEU. However, if the Member U.S. may endure pre-empted where an understanding is only partially covered past times European Union internal legislation, may they endure as good pre-empted where the European Union cannot do its internal competence at all, provided ever that the envisaged understanding clearly affects the European Union police pull inward force? The Court is expected to respond this enquiry inward its pending Opinion 2/15 on the conclusion of the EU-Singapore Free Trade Agreement (discussed here). Here, amidst other things, the Court is asked to determine whether the “ERTA effect” may exceptionally endure triggered past times European Union primary police pull provisions.

The Court’s clarification of the range of Art. 207 (1) TFEU, in addition to inward particular, “commercial aspects of IPR”, mightiness as good receive got about impact on hereafter European Union treaty-making. Opinion 3/15 shows that the mere central of goods or services cross-border is non plenty to equate a mensurate amongst international merchandise for commercial purposes. Instead, a link amongst merchandise implies that the transaction or activity aims at fulfilling a commercial objective. By inference, using merchandise as a hateful to fulfil non-commercial objectives is non plenty to convey a mensurate inside the range of the CCP. While the Court did non exclusively exclude that “commerce” may, on a case-by-case basis, include merchandise on a non-profit basis, it contrasted AG Wahl’s proposition that Art. 207 TFEU by in addition to large encompasses transaction or activities of a non-commercial nature. In take in of Opinion 2/15, which as good raises this issue, it may endure noted that the Court did non dispute the AG’s claim that moral rights autumn exterior the range of the CCP.

When returning to the Marrakesh Treaty, Opinion 3/15 leaves about other pressing enquiry unanswered: What is the right legal footing for the agreement’s conclusion? The Court only clarifies that the Council Decision on the signature of the Marrakesh Treaty was wrongfully based on Art. 207 TFEU, but does non farther elaborate on the right pick of legal basis. It is truthful that the Commission’s preliminary enquiry is confined to the exclusive nature of the agreement. The pick of legal basis, nevertheless, qualifies the modus operandi of (exclusive) European Union treaty-making. In particular, the Court refrains from discussing AG Wahl’s reference to Art.  xix (1) TFEU, and, to a greater extent than broadly, the effects of the non-discrimination regulation on European Union external action. Whilst clarifying the EU’s capacity to conclude the understanding alone, the pick of legal footing – in addition to hence the pick of physical care for – is left to the discretion of the European Union institutions. Throughout the proceedings, the Commission continued to assert that the Marrakesh Treaty should endure based on Art. 114 TFEU instead of Art. xix TFEU. Conversely, the bulk of the intervening Member U.S. sided amongst the AG. As the usage of Art. xix (1) TFEU would trigger unanimous Council voting, in addition to hence Member State veto powers inward the Council, institutional debate over the conclusion of the Marrakesh Treaty mightiness continue.

Barnard & Peers: chapter 24

Photo credit: 1709 Blog

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