For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Thursday, 4 September 2014

CJEU says that EU has external competence to negotiate international agreements on broadcasting rights

This is where both EU
and Mildred's external
competence begins
As noted by one of our readers, there is no need to wait until next week for more copyright-related fun at/from the Court of Justice of the European Union (CJEU). This is because this morning the Court issued its decision in Case C-114/12 Commission v Council, ie a case concerning the external competence of the EU to negotiate copyright protection treaties [yawn, says Merpel, but she is wrong: this is very important] in the context of an action for annulment.

But first of all: what is 'the external competence of the EU'? Pursuant to Article 3(2) TFEU [which codifies the case law developed since the ERTA decision in 1971] it is the exclusive competence of the EU for the conclusion of an international agreement. Such competence may subsist in three cases, namely when: (a) the conclusion of the international agreement in question is provided for in a legislative act of the EU or (b) is necessary to enable the EU to exercise its internal competence [on which see Article 2(2) TFEU], or (c) in so far as its conclusion may affect common rules or alter their scope [this was the relevant option in this case].

And now: what was the background? As summarised by Advocate General ('AG') Sharpston in her Opinion in April last [on which see Jeremy's 1709 Blog post here], the case arose as a result of the dispute between the European Commission and the Council about the competence to negotiate a Convention of the Council of Europe [which, by the way, is not the same institution as the Council] on the neighbouring rights of broadcasting organisations.

On 19 December 2011 the Council and the Representatives of the Member States (meeting in the Council as representatives of their respective governments) had authorised the Commission to participate in the negotiations for this convention as regards matters falling within the competence of the EU, and had instructed the Presidency to negotiate on behalf of the Member States as regards matters falling within the latter's competence (the 'Decision').

Broadcasting rights explained
Supported by the European Parliament, the Commission was seeking annulment of the Decision claiming - among other things - that it failed to respect EU exclusive external competence in the area of protection of rights of broadcasting organisations. In other words, the Commission thought that only the EU, ie the Commission itself, should be competent to negotiate the Convention.

The AG agreed with the Commission and advised the CJEU to annul the Decision. And this is indeed what the Grand Chamber did today.

First, the CJEU recalled that, among the various cases of exclusive external competence of the EU, only the situation in which the conclusion of an international agreement "may affect common rules or alter their scope" was relevant here. 

According to consistent case law, the scope of common EU rules may be affected or altered by international commitments also where those commitments fall within an area which is already largely covered by such rules. In addition, Member States may not enter into such commitments outside the framework of the EU institutions, even if there is no possible contradiction between those commitments and the common EU rules.

Member States may have
such persuasive negotiators,
but this is not enough for the CJEU
Having said this, the Court observed that the adoption of a Convention relating to the protection of neighbouring rights of broadcasting organisations would relate to an area, ie the protection of broadcasting organisations’ neighbouring rights, which has been harmonised at the EU level, as is clear from Directives 93/83, 2001/29, 2004/48, 2006/115 and 2006/116. Such a harmonised legal framework "seeks, in particular, to ensure the proper functioning of the internal market and ..., having integrated a number of developments linked to technological challenges, the new digital environment and the development of the information society, established a regime with high and homogeneous protection for broadcasting organisations in connection with their broadcasts."

The CJEU concluded that "the content of the negotiations for a Convention of the Council of Europe on the protection of neighbouring rights of broadcasting organisations ... falls within an area covered to a large extent by common EU rules and that those negotiations may affect common EU rules or alter their scope. Therefore, those negotiations fall within the exclusive competence of the European Union. It follows that the contested decision was adopted in breach of Article 3(2) TFEU."

***

While not an expert in the area of EU external relations, this Kat is not particularly shocked by this ruling. However, if nothing else, it strengthens the impression (which has now become particularly strong) that Member States retain fairly limited autonomy in areas affected by EU copyright directives. This is the case not just as regards national initiatives, but also international ones. 

Merpel wonders whether all these EU-imposed boundaries just mean that full-harmonisation of the national copyright laws is not just on its way, but already among us. Have Member States noticed though? 

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