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Monday, 9 June 2014

Luxembourg, we have a problem: Where have the Advocates General gone?

... Or that I need you at all?
What is the story with the Court of Justice of the European Union (CJEU), its references for a preliminary ruling, and what looks like a sentiment of increasing uneasiness of the Court towards its Advocates Generals, at least in the area of copyright?

Over the past few months the CJEU has ruled on key copyright issues, that spanned from the scope of exclusive rights (Case C-466/12 Svensson [herehereherehere and here]; Case C-351/12 OSA [here and here]) and related exceptions and limitations (Case C-435/12 ACI Adam [here and here]; Case C-360/13 Public Relations Consultants Association [here]) to enforcement (Case C-170/12 Pinckney [here, here and here]; Case C-387/12 Hi Hotel [here]; Case C-314/12 UPC Telekabel [here]), and everything in between, including the evergreen (because still highly unclear) database right (Case C-202/12 Innoweb [here]).

What most of these cases had in common was the role – or better: lack thereof – of Advocates General. The CJEU either departed significantly from their Opinions or ruled without seeking one in the first place. 

The former is possible because Opinions of Advocates General are not binding on the CJEU. The Court made this eloquently clear in recent references that required consideration of controversial issues, such as the criteria for determining jurisdiction in case of alleged online infringements (Pinckney) or the requirements of blocking injunctions (UPC Telekabel). 

The latter is expressly allowed by Article 20 of the Court’s Statute in those instances that raise “no new point of law”. This was the case, for instance, of Svensson, Public Relations Consultants Association, Hi Hotel, and Innoweb. In general terms, the CJEU has increasingly reverted to this possibility, as the 2013 Annual CJEU Report made clear together with the fact that in that year the number of references for a preliminary ruling was 33% higher than 2009.

By not seeking the Opinion of an Advocate General, the CJEU implied that there was no need for a detailed analysis of the legal aspects of the case at hand. By departing from the Opinion sought, the CJEU showed that it did not share the legal analysis conducted by the designated Advocate General. Either way, the CJEU appeared to suggest that it knew better than its Advocates General.

What appears like an emerging trend may thus prompt a specific question: Have Advocates General and their Opinions become a waste of time and resources in this area of the law?

Still adequate?
It is unlikely that the response is that copyright is an “easy” area of the law or the issues it has been presenting recently do not require much thought. 

Was it straightforward to say that hyperlinking falls outwith the scope of copyright protection? Was it easy to determine that the courts of a given Member States have jurisdiction to hear cases of alleged online copyright infringements just because the website where allegedly infringing content is available can be accessed from that particular territory? Was it so clear that the database right might come into question when operating a meta search engine?

One may wonder whether all this, instead, may be a consequence of the fact that, similarly to the judges of the Court, Advocates General are not IP and copyright specialists. Would the statistics on Advocates General and their Opinions change at all if there were (more) subject specialists among them and – possibly – also among the judges of the Court? What if, elaborating upon Article 252 of the Treaty on the Functioning of the European Union, the duty of Advocates General, acting with complete impartiality and independence, was to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court, require not just their involvement, but also their specific competence?

Opinions of Advocates General are usually more thoughtful than subsequent judgments, especially where the Court agrees with the Opinion. But when it comes to copyright, what is and – most importantly – should be the role of Advocates General? Is #saveourAGs the answer (and relevant hashtag of course)? If so, how can this be done?


NOTE: This post is a forthcoming Editorial for the Journal of Intellectual Property Law & Practice which - incidentally - has also a blog and Twitter account.

5 comments:

Pandora50000 said...

I was just going through the statistics of (non) opinions of Advocates-General based on the post of last week and now saw this extra article; thanks for making a point of it! I have provided the % of non-opinions below for reference:
2004 30%
2005 35
2006 33
2007 43
2008 41
2009 52
2010 50
2011 46
2012 53
2013 48
So you are fully right that we have a 30% increase from 2008, but after that, the number seem fairly stable to me for all cases; regarding IP you could be very well right that it is increasing...
The possibility to dispense with an opinion were introduced with the Treaty of Nice of 2001 (EIF 2003), and the Dutch Government is enthusiastic in its explanatory memorandum to the approval act
"https://zoek.officielebekendmakingen.nl/kst-27818-3.html": ""Ook de taak van de advocaat generaal is gewijzigd. Onder het nieuwe artikel 222, EG-Verdrag, hoeft niet meer in elke zaak geconcludeerd te worden, slechts wanneer dit door het Statuut vereist is (artikel 20, vijfde alinea, van het Statuut). Dit zal een versnelling van de procedure opleveren, niet alleen in die zaken waar geen conclusie meer is vereist, maar ook in die zaken waar nog wel een conclusie is vereist, omdat hier nu meer tijd voor is.""
In other words: increase in speed for both cases with and without the opinion of an A-G...

martinned said...

Does the Court not have a specialist? When I looked into it two years ago, I found that the same Judge-rapporteur keeps being appointed to the same kinds of cases. I'm sure that goes for IP law too: just a few Judges doing all the work. If you do that long enough, you become a specialist quickly enough.

Anonymous said...

I did some research a few years ago on decision on free movement of goods, and saw a significant number where the opinion of AG was not deemed necessary, but where the court still went on and in a number of cases got the law 'wrong' (if measured by what academic treatises say on the subject). While IP may be seen as a specialist area, Art 34 TFEU case law is central EU law - perhaps the more worrying that such a trend can be discerned.

Anonymous said...

What's the purpose of the Advocate General's opinion? It's not as if it used by the CJEU to decide whether or not to take the case. Opinions don't seem to be written to provide all the different options available to the CJEU when it makes its decision. Instead they are written like a decision, which the CJEU can agree or disagree with. Does the CJEU really find that helpful?

Jonas Lembke said...

CJEU statute does not allow dissenting opinions (Art 35-37). Where judges disagree the judgment will hence be a compromise. AG opinion allow for elaboration on controversies. It is unwelcomed if CJEU denies AG opinion precisely because they know the case is controversial and keeping the complexity restricted facilitates judgment.

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