From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 12 January 2015

Copyright judgments in 2015: what’s in the pipeline from the CJEU (and will we be able to understand them?)

2015 will be another busy copyright year for the CJEU, starting with Case C-30/14 Ryanair (copyright/database rights) this Thursday [watch this space], followed a week later on 22 January by C-419/13 Art & Allposters (exhaustion of rights) [on which see herehere and here] and C-441/13 Hejduk (online jurisdictional issues) [see here]. Later this year, we expect to see rulings in  C-279/13 C More Entertainment (hyperlinks) [see here] and 3 cases on the scope of the private copying exception: C-463/12 Copydan [here], C-572/13 Hewlett-Packard [here] and C-470/14 Egeda [here]

With this in mind, and as we enter a new year (and reluctantly emerge from the cranial fuzziness induced by the festive period), this Kat thought that now would be a timely opportunity to recap on the relevance of CJEU judgments and share some thoughts on the challenges (and frustrations) encountered in practice when seeking to interpret and advise on these rulings.

 Preliminary rulings from the CJEU: what are they again?

Post-festive cranial fuzziness
National courts from any EU Member State can seek guidance from the CJEU on the correct interpretation of European law to enable it to properly apply that law to the facts of the case before it [i.e. The CJEU is not supposed to does not apply the law to the facts of the referred case, which is an exercise reserved for the referring court.] In the copyright context, references are usually in relation to the Information Society Directive (2001/29/EC), which sets out, amongst other things, the scope of the exclusive rights and exceptions to those rights.

In interpreting a European directive, the CJEU must consider its wording, the context in which it occurs and its underlying objectives. The CJEU must also interpret the directive in a manner consistent with international law, particularly where its provisions are intended to give specific effect to an international agreement (e.g. the WIPO Copyright Treaty, TRIPS).

What impact does a CJEU ruling have on EU Member States?

The CJEU's rulings are very important with potentially wide-reaching ramifications across the EU. This is because the CJEU’s rulings establish how a European directive is to be interpreted. EU national courts must, in turn, seek to interpret their national law so far as is possible in conformity with, and to achieve the result intended by, that directive (known as the ‘Marleasing principle’). CJEU rulings are binding on the referring court and other Member State courts.

The operative part of the ruling is found at the end, where the CJEU provides its ‘answers’ to the referred questions. The ‘answers’ [often phrased in a less-than-clear manner] are to be interpreted by national courts in light of the CJEU’s underlying reasoning that is found in the preceding paragraphs.

However, in practice, the level of detail about the CJEU’s underlying reasoning can be lacking, which can lead to difficulties when advising on the ruling’s implications (as to which see further below). [This Kat’s personal view is that the absence of detailed reasoning may be a by-product of the unanimous nature of a CJEU’s ruling which must endorsed by all judges convened to hear the case (there is no provision for a dissenting judgment). It is feasible that any contentious paragraphs (i.e. the underlying reasoning) are vulnerable to being removed unless all the convened judges can be brought on-board. If this is a correct assumption, one can imagine the behind-the-scenes challenges in getting three judges (let alone thirteen judges in a Grand Chamber case) to agree on the underlying reasoning.]

Can CJEU rulings be appealed?

CJEU rulings are final - although a ruling can be disturbed by a subsequent judgment of the CJEU. [This Kat wonders however whether there have been any cases where CJEU rulings raise substantive human rights issues and how this might relate (if at all) to the appeal process to the European Court of Human Rights. Do readers have any thoughts on this?]

What role does the Advocate-General play?

An Advocate-General is usually assigned to each reference and his/her role is to assist the CJEU by providing an impartial and independent legal opinion on the referred case. Roughly speaking, the CJEU tends to follow the Opinion in around 80% of cases. However, crucially, the Opinion is not binding on the CJEU or the national courts, unless the CJEU’s ruling expressly adopts particular paragraphs of the Opinion.

How does the preliminary reference procedure work?

In brief: 
  • The national court refers questions to the CJEU - either at its own initiative or at the parties’ request - via an “Order for Reference” which is accompanied by the court’s summary of the relevant factual background, the relevant points of law, and the questions put to the CJEU.
  • The parties to the proceedings, any Member State, and the EU Commission can file written submissions [known as ‘written observations’] to the CJEU within a set time period (usually around 2 months from the date of the Order for Reference). Written observations are filed simultaneously and there is usually no opportunity to provide any written evidence in reply. [So you have to set out your case, predict what opposing arguments might be raised, and counter these where possible in your written observations.]
  • An oral hearing may be convened at the parties’ request where the CJEU considers it is necessary for further submissions. Parties are usually only given 20 minutes to make oral submissions, and the CJEU may direct that submissions are focused on specific points [i.e. the written observations are really the only opportunity you have to set out your substantive case].  The hearing is heard in public [if you fancy a trip to Luxembourg], but it is not possible to obtain a transcript of the hearing (as far as this Kat is aware).
  • The Advocate-General may provide an Opinion (although an Opinion is not always requested).
  • The CJEU hands down its ruling [roughly speaking, between 18-24 months after the Order for Reference, and usually around 3-4 months after the Opinion if there is one]
  • Parties tear their hair out trying to understand what on earth the CJEU meant.

What are the challenges in interpreting CJEU rulings?

I still have no idea
what you are saying
This Kat’s personal experience is that interpreting CJEU rulings can be a frustrating, costly, and challenging exercise where, for instance, the ruling raises more questions than answers. One example of this is the recent Svensson ruling on hyperlinks, where there remains uncertainty as to its application in the context of infringing content [see here] and what constitutes a "freely available" work [see here].

A further issue is when the CJEU [unilaterally] decides to ‘paraphrase’ the questions carefully formulated by the referring court and delivers its ‘answer’ on the basis of its own re-formulated question. This can lead to substantive argument between the parties on what the CJEU meant, and how its ruling should be applied to the facts of a case.

This issue is compounded where the ruling also lacks sufficient underlying reasoning, leaving the national courts trying to make reasoned assumptions on what the CJEU intended. One example of this was in SAS Institute where during the hearing the Court of Appeal commented how it had to indulge in “an exercise in Kremlinology” to try and infer what the CJEU intended in its third ruling in the absence of sufficient underlying reasoning.

What improvements could be made to the preliminary reference procedure?

A particular bugbear for this (primarily English-speaking) Kat is when Opinions of the Advocate-General are translated into the vast majority of EU languages except for English (as was the case in Art & Allposters, Hejduk, Ulmer, and Copydan).

Even where the Advocate-General’s Opinion is not ultimately followed by the CJEU, generally speaking, the Opinion usually provides a greater degree of analysis and detail than the CJEU’s ruling (including the arguments submitted by the parties and often the factual background underlying the reference). It can therefore provide a helpful insight into the underlying factual background which is relevant to anyone needing to understand how a CJEU ruling might be applied in different circumstances. As helpful as Google Translate may be, it is sub-optimal (to say the least) to have to try and advise on an Opinion that is not written in your native language.

Another observation is the extent to which Member States generally engage in the preliminary reference process by filing written observations, which are taken into account by the CJEU when making its ruling. If we pick out this Kat’s 11 major CJEU cases from the last year (Svensson,  PRCA, UPC Telekabel, Deckmyn, ACI Adam, Ulmer, Nintendo, Blomqvist, OSA, HI Hotel, BestWater), the Member States collectively filed 31 written observations with the following breakdown:
  • Italy, Poland: 5
  • UK: 4
  • Austria, Germany: 3
  • France, Netherlands: 2
  • Belgium, Czech Republic, Estonia, Finland, Hungary, Lithuania, Spain: 1
(The European Commission diligently filed written observations in every case.)

In light of the significance of CJEU rulings across all Member States, should more Member State governments be engaging with the process? And if so, is the current framework adequate to encourage participation (in particular, the tight timeframes for interested parties to feed back to their national governments the issues raised by the referred case)? In addition, should written observations be made publically available so we can understand what position has been adopted by each Member State?  What do readers think?  

CJEU statistics here
CJEU judges here

5 comments:

Anonymous said...

And all CJEU preliminary rulings in copyright (and in IP in general) are easily accessible at : http://ipcuria.eu, which was breafly presented at the Kat's Friday fantasies post : http://ipkitten.blogspot.com/2014/12/friday-fantasies_19.html

Anonymous said...

The language issue:

The CJEU still deliberates in French. This means all written submissions- however beautifully drafted in English-have to be translated. The Court does this itself (but not it seems for the Commission which provides its own translation). This means parties and MS have to check that the French version corresponds to the original language version and it is at one's peril if one fails to spot the differences in nuance. Much more can be said about the language issue especially its relevance for the hearing (which is now 15 minutes per party).

MS and the process:
MS tend to get involved if the subject matter touches on their own law (for good or for bad). Otherwise, they don't. In addition, the process is costly for some of them, or they lack the centralisation, resources and organisation of say the UK or France; but often they are simply not concerned. When they are, MS (and parties)show an especial and strategic interest in what the EU institutions say in references. Usually, this means what the Commission says. There are a number of reasons for this but the most obvious is that the Commission's view, if followed by the Court, can have an impact on the MS's own implementation of the EU law in question.

Availability of written submissions:
There is CJEU case law on this as far as the institutions are concerned. MS have their own rules on access. The system such as it is, is one of "on request" which is applied at the end of the procedure and not during it whilst the case is pending. One must not lose sight of the fact that especially in IPR, these preliminary references are private law disputes (even if there are societal consequences in some)and that there is a right of both parties to present their case without interference (aka right to a fair hearing). There has always been the judicous placing of article in law journals on the topics referred. More recently, though there has been the tendency to send documents, position papers etc to persons or institutions or the Court weighing in on one side or the other in a pending case.

TreatyNotifier said...

and (yet) another one may be in the making! The supreme court of the Netherlands (Hoge Raad) also has an advocate-general. In his opinion regarding "Sanoma v Geenstijl" (regarding a link to a fleshier website containing nude pictures of an upcoming Playboy issue) of last Friday he concluded that a reference to CJEU needs to be made about whether linking to illegal content is a communication to the public (and under which circumstances)...
If the supreme court agrees, then this is heading to CJEU...

Anonymous said...

Please would the anonymous person who commented on the availability of written submissions please clarify what they meant by "The system such as it is, is one of "on request" which is applied at the end of the procedure and not during it whilst the case is pending." I have spoken with the CJEU registry and they are of the view that the only way a non-party to a case can gain access to written submissions (before or after the CJEU render their decision)is to ask directly the party to the case who made the submission for a copy.

Anonymous said...

I am guessing that Anonymous meant "on request" of the parties themselves and not on request of the CJEU registry. As the CJEU is neither the owner nor the rightholder of any copyright in the submissions; and there are also data protection rules to bear in mind so it can't process documents of others. Not to mention lpp.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':