This blogpost only reflects the views of their authors and not the organisations they represent.
In his second Opinion on the HADOPI case (C-470/21) (short for: Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet), the Advocate General Szpunar seemingly suggests that the Court of Justice of the European Union (CJEU) should change its jurisprudence when Member States refuse to apply it. He argues that the CJEU should be “pragmatic” and “nuanced” when national courts fail to implement its case law. This blog post argues that, if followed by the Court, the interpretation proposed by the AG would lead to a severe weakening of the CJEU’s authority and legitimacy, more generally. This would be of great symbolic significance in an already challenging environment for the Court which is faced with increasing defiance of Member States in the field of data protection.
The case, brought by the digital rights group, La Quadrature du Net, questions the compatibility of the “HADOPI” law, the French legal framework to combat the online exchange of copyrighted material without permission from right-holders, with European Union law. After a Grand Chamber hearing in July 2022 and a first AG Opinion in October 2022, the case was referred to the Full Court in March 2023 at the request of the Grand Chamber, pursuant to Article 60(3) of the Rules of Procedure of the Court. A reassignment from the Grand Chamber to the Full Court is very rare, but no reason has been provided in the public documents of the case. A second hearing was held in May 2023, and the AG delivered a second Opinion on 28 September 2023.