On Valentine’s Day 2017, the Grand Chamber of the ECJ issued its opinion on the competence of the EU to conclude the ‘Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.’ As happens increasingly often, the Commission, on the one hand, and several Member States and the Council on the other, disagreed on the nature of the competence of the EU to conclude the agreement. The Commission considered the agreement to be covered entirely by the EU’s exclusive competences, whereas the Member States, and to a lesser extent the Council, argued that at least part of the agreement fell outside of the scope of those competences, and instead fell within the scope of the EU’s shared competences.
The distinction between exclusive and shared competences matters. Unless an agreement is covered entirely by the EU’s exclusive competences, it will most likely be concluded in the form of a mixed agreement, i.e. an agreement to which not only the EU, but also the Member States are parties. This typically is the case even when the agreement falls within the scope of the EU’s shared competences, as the Council considers that when the Commission proposes to negotiate and conclude an international agreement parts of which are covered by shared competences, the Council can opt not to exercise those competences with regard to part of that agreement, however small this part may be. In such an event, the Member States must fill the gap by exercising their own competences, rendering the agreement a mixed agreement. Continue reading →
Is a harmonised technical standard (HTS) developed in response to the Commission’s mandate, a provision of EU Law? Up until recently, this issue has not been raised before the CJEU, much to academics’ surprise working in this field. Contractual litigation in James Elliott Construction became a trigger for the inquiry about the legal nature of HTS. The Court handed down its judgment on 27 October 2016, nine months after the Advocate General’s (AG) Opinion was published. Two blog posts discussed the AG’s Opinion and offered divergent analysis thereof.
The judgment, in essence, followed the AG’s Opinion resulting in the finding that an HTS is a part of EU law. The Court’s line of argumentation, as opposed to the AG’s, is remarkably cautious. In short, the Court regarded privately produced technical rule-HTS, as a provision of EU law. At the same time, the ECJ was extremely keen to prevent an HTS from having effects on a contractual relationship or on the Irish Law on Sale of Goods. Continue reading →
Minimum harmonisation has always been in the toolbox of the EU legislature as one way of regulating the internal market, and its normative virtues are hotly debated in the literature. The concept also raises a quirky and often neglected constitutional issue: are minimum harmonising Directives compatible with the re-regulatory aim of Article 114 TFEU, despite the fact that they allow for varying national standards that go beyond the common floor of the Directive, hence failing to eliminate all obstacles to trade? The CJEU’s answer to this question given in the recent Philip Morris judgment, emerged from the latest round of challenges by the tobacco industry against Directive 2014/40/EU, seems to be ‘no’. This post offers some reflections on the controversial regulatory structure of Directive 2014/40, as well as on the reasoning of the Court. Continue reading →
One week after the Court of Justice (CJEU) handed down its Judgment in GS Media (see for a comment here), it has ruled on another important copyright case. In Mc Fadden v Sony Music the Court followed the Opinion of AG Szpunar (see for comment on this blog here) to a large extent while disagreeing on two crucial points. It decided that the operator of an open wireless network provides an ‘information society service’ (ISS) within the meaning of Article 14 E-Commerce Directive if he provides access to the network as part of his economic activities. This means he can avail himself of the liability exemption laid down in that provision. However, the operator of a wireless network can be required to protect the network with a password in order to deter users from infringing the rights of copyright holders. The Court further decided that the right holder can claim from network operators the costs related to an injunction (e.g. to prevent future infringements), but not the costs related to claims for primary infringements of copyrights by the users of the Wi-Fi network. Continue reading →
In a much awaited decision, the CJEU has ruled that linking to freely-available copyrighted content that has been uploaded without the consent of the right holder is, in principle, legal. However, it qualified that such a reference could infringe the right to communication to the public under Article 3(1) of the Information Society Directive (Directive 2001/29/EC) if certain elements were present. After AG Wathelet had provided his Opinion in early April (see post on this Blog here), the CJEU rendered its Judgement on 8 September 2016. Continue reading →
Of course, it wasn’t all about immigration. But that claimed flood of Eastern Europeans was certainly at the heart of the leave campaign, and, unusually for an immigration debate, it was their right to work in the UK that was the political issue: there were too many of them, they were pushing down wages, they were keeping the low-skilled native out of work, they were costing the government a fortune in in-work benefits, they were making towns and villages unrecognisable and alienating the more established inhabitants.
Whether or not they were true, a lot of these claims seemed to be shared by both sides. Cameron didn’t so much deny them, as offer counter-claims (but they do add to the economy) and promises of change (if you vote remain, we’ll have a new deal and be able to do something about it!).
So the question is this: if the government thought that free movement of workers was causing such terrible problems, why didn’t it impose restrictions years ago when the post-Enlargement flood was at its high point and the issue first became prominent? Continue reading →
On 16 June 2016 Advocate Geneal (AG) Szpunar, who recently is very active in the field of European copyright (see also on this blog here), published his Opinion in Vereniging Openbare Bibliotheken v Stichting Leenrecht. The case deals with the question whether public libraries are entitled to lend electronic versions of books (e-books) and, if so, under which conditions. The AG takes a favourable position regarding the lending of e-books under the Rental and Lending Rights Directive (Directive 2006/115/EC). Yet, what is more interesting than the actual outcome of his opinion is his very daring argumentation to treat e-books and printed books alike for the purpose of the said Directive. The opinion, if followed by the Court of Justice (CJEU), could also have an influence on the interpretation of the Information Society Directive (Directive 2001/29/EC) and more far-reaching questions of digital exhaustion.
It is quite noteworthy that AG Szpunar highlights in a rather long introduction the important role of libraries and their difficulties to adapt to the changing circumstances of book consumption. He identifies the case as one which would enable the Court “to help libraries not only to survive, but also to flourish.” (para. 1) This, so the AG, would be possible by answering the question whether libraries are allowed to lend e-books. Continue reading →
The British referendum on the country’s continued membership of the EU has dominated the political and media landscape both in the UK and abroad for the last few months. There has been a plethora of academic commentary on the possible consequences of a British exit (‘Brexit’). On 23 June, based on a turnout of 72%, 52% of the electorate voted for Leave, while 48% supported Remain. This narrow majority disguises dramatic differences between different regions: Scotland, Northern Ireland and large parts of London voted to Remain whereas substantial sections of Wales and most of England voted to Leave.
In the run-up to referendum day, workers’ rights were invoked repeatedly by both sides of the campaign as either a reason to back or oppose Brexit. Leave campaigners, such as Patrick Minford, Professor of Economics at Cardiff Business School, argued that the UK needed to reset its relationship with the EU to ‘jettison excessive protection and over-regulation, notably in the labour market’. Domestic employment laws originating from the EU legislature, such as the much vilified Working Time Directive, have often been described as a burden on business, inflexible, uncompetitive and inefficient. On the other hand, Remain campaigners such as Frances O’Grady, General Secretary of the British Trades Union Congress (TUC), warned repeatedly that ‘working people have a huge stake in the referendum because workers’ rights are on the line’ and the link between the UK’s membership of the EU and better protection of workers’ rights featured heavily in campaign material opposing Brexit. Continue reading →
As already stressed by Megi Medzmariashvili in her post of 1st March 2016, the question of whether the Court of Justice of the European Union (‘the Court’ or ‘CJEU’) has jurisdiction to give a preliminary ruling on the interpretation of a harmonised technical standard (‘HTS’) adopted by the European Committee for Standardisation (‘CEN’) is, for the first time, raised in Case C-613/14, James Elliot Construction Ltd v Irish Asphalt Limited.
As Director – Legal Affairs of both CEN and CENELEC (the European Committee for Electrotechnical Standardization), I would like to give an insider’s view on the European standardization system and to expose a more critical approach to the Opinion delivered by the Advocate General (‘AG’) Campos Sanchez-Bordona on 28 January 2016. The AG suggested, in reference to the first question referred for a preliminary ruling, that the Court must declare that it has jurisdiction for the main reason that the HTSs should be regarded as acts of the institutions, bodies, offices or agencies of the Union for the purposes of Article 267 of the Treaty on the functioning of the Union (‘TFEU’), which is the primary law basis of the cooperation between the CJEU and the national courts via the preliminary ruling system. The opinion of the AG is based on three arguments that I would like to comment on, just after insisting on some essential elements of background on the way HTSs are produced and how CEN and the other European standardisation bodies are working. Continue reading →
Hyperlinking is one of the most important mechanisms that make the Internet workable and helps users to find and access information more easily. However, hyperlinking has come under scrutiny in the light of the provisions of the EU copyright rules. In the present case, the CJEU is being asked under which circumstances links to infringing material constitute a communication to the public. The request for a preliminary ruling by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) is part of a growing body of case-law on the interpretation of Article 3(1) of the InfoSoc Directive (Directive 2001/29/EC). This post discusses the AG’s interpretation of the right of communication to the public in relation material which is made available on the Internet without the consent of the rightholder. Continue reading →
In a significant, yet unusual judgment the Court of Justice of the European Union (CJEU) upheld the General Court’s decision (T-140/12; Teva Pharma v. EMA) that had affirmed the European Medicines Agency’s (EMA) rejection of Teva’s generic drug application for Glivec® (active substance-imatinib), not due to the reference product’s own orphan drug exclusivity but in view of orphan drug exclusivity of a similar medicinal product – Tasigna® (active substance-nilotinib).
The judgment is bizarre not only because it interprets the underlying orphan drug regulation in a manner incongruous with the spirit and substance of the legislation, but also for its potential to provide an unfair leg-up to the brand drug companies for extending their market monopolies indefinitely. It simply fails to fathom the underlying welfare rationale of the Regulation, which is meant to ensure the same quality of treatment for patients of rare conditions as those suffering from other diseases. The Court’s decision provides a skewed playing field where the interest of patients and generic pharmaceutical companies will be impacted by the unjustified extension of monopoly periods of brand drug products thus ensuring exploitative pricing of life-saving drugs. Continue reading →
The civil liability of intermediary service providers remains a hotly debated topic in EU law, especially in relation to infringement of intellectual property rights (IPRs). Whereas the Information Society Directive (Directive 2001/29/EC), as well the IP Enforcement Directive (2004/48/EC) provide that owners of IPRs can, in principle, request injunctions against intermediaries, the E-Commerce Directive (Directive 2000/31/EC) exempts certain intermediaries from indirect liability under certain, well defined circumstances. The present case raises questions as to the scope and interpretation of Article 12 of the E-Commerce Directive, in particular with regard to fundamental rights. Concretely, the referring court in Tobias Mc Fadden v Sony Music Entertainment Germany GmbH asks under which circumstances and to what extent operators of publicly accessible Wi-Fi networks can be held liable for infringements of works protected by copyright, and what type of injunctions can be ordered against such operators.
The James Elliott Construction case brings before the Court of Justice (ECJ), for the first time, the issue of whether it is within the Court’s jurisdiction to give preliminary rulings on harmonised technical standards (HSs). This contribution will analyse Advocate General (AG) Campos Sánchez-Bordona’s Opinion in this case, in particular its potential effects on the legal status and copyright protection of HSs. It will also discuss, more generally, the legality of the delegation of rule-making powers to the European Standard Bodies (ESBs). If the Court follows the AG’s opinion it will most certainly craft a New Approach to the New Approach.Continue reading →
Data protection policy, in particular the right to protection of personal data in Article 8 of the EU Charter, has remained firmly within the EU law limelight in recent years. This right played a key role in seminal judgments of the CJEU such as Schecke and Eifert, where for the first time a provision of secondary legislation was annulled for incompatibility with the Charter, and in Digital Rights Ireland (discussed earlier on this blog), where for the first time an entire Directive was annulled on the same grounds. Furthermore, in Google Spain (considered here) this fledgling right was ostensibly given precedence over the more established right to freedom of expression in certain circumstances, leading to a media furore on both sides of the Atlantic. 2015 was no different in this regard as much attention focused on the Court’s judgment in Schrems (discussed here), which invalidated the 15 year old Safe Harbor data sharing agreement between the EU and the US, and on the culmination of four years of negotiation on the new Proposed General Data Protection Regulation in December.
For good or for bad, the EU data protection juggernaut appears unstoppable, leaving in its wake legal instruments that do not meet its strict standards. Yet, in the shadows of these well-documented events, other noteworthy developments occurred. 2015 also saw the Dutch referring court withdraw its preliminary reference in Rease and Wullems, thereby regrettably removing the opportunity for the CJEU to pronounce upon the margin of discretion of national Data Protection Authorities (DPAs) when adopting a de minimis approach to their enforcement strategy to the detriment of individual or small group complainants. The Court did, however, deliver a number of largely overlooked yet significant data protection judgments in 2015. This contribution will focus on two significant cases which the CJEU delivered in the first week of October, immediately prior to the Schrems judgment, in Bara and Weltimmo. These preliminary references allowed the Court to clarify the interpretation of obligations and exemptions under the Data Protection Directive, as well as the Directive’s enforcement in online situations. Continue reading →
“Viking, Laval and Beyond”, edited by Mark Freedland and Jeremias Prassl, constitutes the first volume of Hart’s new series on “EU Law in the Member States”. In the series’ foreword Sacha Prechal lays out how crucial it is to understand the “genuine life of EU law in the Member States” since EU law – of course – is generally transposed, applied and enforced at the domestic level. But that is easier said than done. One needs good knowledge of EU law, domestic and comparative (EU) law to come close to some understanding of what Prechal calls EU law’s genuine life. And, let’s be honest, it is often hard enough to keep up with the current developments in EU law while not losing touch with domestic legal issues. Continue reading →
Last week, the ECJ delivered its judgment in Case C-398/13 P, Inuit Tapiriit Kanatami II, which deals with the EU ban on trade in seals products. This judgment is interesting for two reasons. Firstly, the absence of any consideration of the admissibility question, more specifically the fulfilment of the locus standi requirements. Secondly, the relationship between, on the one hand, the Charter of Fundamental Rights and the ECJ and, on the other hand, the European Convention on Human Rights (ECHR) and its court, the European Court on Human Rights (ECtHR). This post will examine these two issues after a discussion of the background to the so-called “Inuit Saga” and the eventual ECJ judgment which came about after more than five years of litigation in two different episodes.
Situated between the market and the state, the notion, concept and characteristics of public services are often multifaceted and difficult to grasp. The EU layer of public service regulation further adds to this complexity as it interacts in many different ways with the national legal frameworks in this field: EU law may structure national legal norms, coordinate the provision of services between the Member States, bring about minimal or maximal standards (e.g. pertaining to quality, ubiquity or affordability of the services provided), comprise detailed regulation or even set prices for the provision of public services as in the case of mobile roaming tariffs. At the same time the law on public services is under the influence of a whole range of EU law provisions and regimes: namely the rules on free movement, competition law and state aid, general and sector-specific primary law provisions, horizontal rules of secondary law, as well as a large body of sector-specific secondary EU law, which has increased substantially over the past few years. With his book Public Services in EU Law Wolf Sauter undertakes a challenging attempt to elucidate the complexity of EU law in the field of public services. Continue reading →
When rendering one of its last judgments of 2014, the Court of Justice of the European Union (Court) had the opportunity to end once and for all the dispute of (now) three rounds between the United Kingdom (UK) and the Council of the European Union (Council) over the legal basis to be used when the EU wishes to adopt jointly, within the framework of an association agreement with a third country, a social legislation benefitting the migrating workers of both parties.
As the UK did in earlier cases on this topic submitted to the Court, in case C-81/13 UK v Council it criticised the Council once more for using Article 48 TFEU as the substantive legal basis for the adoption of a social security measure implementing an association agreement, in this particular case the Council Decision 2012/776/EU, which aimed to update the obsolete implementing provisions on the coordination of social security systems as established by the EEC-Turkey Association Agreement (Agreement).
The following post discusses whether the judgment delivered by the Grand Chamber of the Court in this case has been successful in finally bringing the above-mentioned dispute to an end, and it also provides a closer look on the Court’s reasoning as regards the choice of legal basis in relation to the measures implementing association agreements. Continue reading →