GIBRALTAR GETS BRITS INTO TROUBLE ... AGAIN

Today in Case C-88/04 European Commission v United Kingdom the European Court of Justice ruled that the UK was in breach of its obligations relating to the Information Society.

Article 13 of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society required all the EU member states to bring into force various provisions contained in it before 22 December 2002 and then to tell the Commission that they did so. After the UK missed this deadline, the Commission opened the infringement procedure and called upon the UK to submit its observations. The UK government told the Commission that the directive would be implemented in the UK in October 2003, but said nothing about implementing it in Gibraltar. The Commission then sought a declaration that the UK had failed to fulfil its obligations under the directive.

The issue was whether the UK had to implement in in Gilbraltar at all. The Commission argued that, since it was not primarily or exclusively concerned with the free movement of goods, it did not fall within the category of measures which did not apply to Gibraltar by virtue of its exclusion from the customs territory of the Community: the UK therefore had to initiate procedures necessary for ensuring that it was incorporated into the law applicable for Gibraltar. The UK government thought otherwise. The Court sided with the Commission and ruled that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with the directive, the UK had failed to fulfil its obligations. As it said (at paragraph 9):

"The Commission takes the view that, as that directive is not primarily or exclusively concerned with the free movement of goods, it does not fall within the category of measures which do not apply to Gibraltar by virtue of its exclusion from the customs territory of the Community under the United Kingdom Act of Accession, as held by the Court in its judgment in Case C-30/01 Commission v United Kingdom [2003] ECR I-9481. It considers that it is the duty of the authorities of the United Kingdom to initiate, in due time, the procedures necessary for ensuring that the directive is incorporated into the law applicable to Gibraltar".

The IPKat was a little saddened at the decision, though not surprised. He wonders though why copyright is treated differently to other IP rights and hopes his readers will tell him.

More on Gibraltar here and here