Suing online platforms for copyright infringements: the choice of court and law in the “Project Gutenberg” scenario

Recent Decisions of the European Court of Justice of the European Union on Supplementary Protection Certificates: A Few Answers-Many Questions.

Internet Intermediaries and Copyright Law. Towards a Future-proof Legal Framework

With the return of the Metal auf Metal case (Pelham v. Hütter) to the Court of Justice of the European Union (CJEU), the Luxembourg court will again be faced with the question under which circumstances the reproduction of parts of a sound recording requires authorisation. When the case was first argued before the EU’s highest court, it revolved around the concept of partial reproduction of a sound recording and an interpretation of the quotation exception. In addition, the defendant had proposed that national courts, in the absence of an applicable exception, could provide for flexibility by allowing creative uses purely based on fundamental rights. The Court rejected this possibility, arguing that something akin to an open norm would create legal uncertainty. Following the first ruling, Germany, where the case originated, implemented the pastiche exception of Art. 5(3)(k) of the Information Society Directive into its national copyright law. In Pelham v. Hütter II, the CJEU is asked to give guidance on the interpretation of the concept of pastiche. Following the introduction of the exception under German law, German courts had interpreted the exception broadly, allowing a variety of derivative artistic uses. This article explores the concept of pastiche from an interdisciplinary and comparative perspective. After an overview of the relevant German decisions, it explores the various non-legal meanings of pastiche before comparing the development of the notion in the copyright laws of Italy, France and some other EU Member States. Since the non-legal as well as the different national legal understandings of pastiche do not crystallise a common understanding of the notion, pastiche is subsequently developed as an autonomous concept under EU law. In distinguishing pastiche from parody, which the CJEU developed as an autonomous concept in the Deckmyn case, the article proposes that pastiche should be understood as an exception that broadly permits referential uses that have no elements of humour or mockery – as distinct from parody – but are of an artistic nature. An important role must be assigned to the three-step test, which functions as a framework to balance the interests of rightholders and users in a given case.

This chapter explores aspects of Court of Justice of the European Union (CJEU) case law that highlight the role that this Court has played in enhancing the global reach of EU law and the influence of its own judgments abroad. It addresses two main themes. The first theme is concerned with the CJEU’s contribution in shaping the institutional arrangements established by international agreements concluded by the EU with its neighbouring countries, particularly as regards the role carved out for the CJEU within them. The CJEU has succeeded in enhancing its own role and interpretative authority within the framework of these agreements. The chapter argues that the CJEU has emerged as an agent of its own authority by jealously guarding its interpretative supremacy, as well as the autonomy of EU law. The second theme is concerned with CJEU case law addressing ‘global reach’ EU law. This includes EU law which is extraterritorial, or which gives rise to territorial extension. It also covers EU legislation, which serves as a catalyst for the ‘Brussels Effect’. It is argued that the CJEU has enhanced the external influence of EU law by interpreting broadly and upholding the lawfulness of global reach EU law. Taken together, these two themes exemplify the ways in which EU law, including CJEU judgments, can have influence in third countries. This analysis contributes to our understanding of why some judgments issued by the CJEU have proved to be particularly influential in third countries, as exemplified by the various chapters included in this volume.

In EU copyright and trademark law, the protection of the right to intellectual property is the rule, and breathing space for competing fundamental rights, such as freedom of expression and the right to a healthy environment, is the exception. While formally recognizing the need to balance protection interests against other fundamental rights and values, the Court of Justice of the European Union (CJEU) fails to use competing fundamental rights productively. Instead, the Court has developed a meaningless fundamental rights rhetoric that produces the false impression that there is sufficient room for all competing rights and interests within the existing copyright and trademark systems. However, the current configuration of EU copyright and trademark law fails to offer users the chance of meeting right holders as equals, even if their fundamental rights are of equal ranking in the Charter. By adding fundamental rights cosmetics to imbalanced protection systems, the CJEU only cements and further stabilizes the existing rule/exception edifice that is strongly in favour of right holders. Introducing the mantra of internal balancing – requiring the reconciliation of competing rights and interests within the confines of secondary copyright and trademark legislation – the Court has even created a considerable risk of sacrificing competing fundamental rights on the altar of the EU harmonization agenda. By letting the harmonization objective reign supreme, the CJEU has also given the three-step test in copyright law and the honest practices proviso in trademark law a quasi-constitutional status. As a result, these open-ended provisions undermine limitations of exclusive rights that could support competing fundamental rights. To remove the imbalances in current EU copyright and trademark law, it would be necessary to introduce upfront gatekeeper requirements that prevent illegitimate infringement claims from the outset when competing fundamental rights are at stake.

Brüstle Decision Is Unhelpful, but Not Catastrophic

What role does the Court of Justice of the EU (CJEU) and EU law play in elaborating the rights and principles embodied by the Universal Declaration of Human Rights (UDHR)? Over the last 20 years, human (or ‘fundamental’) rights have become a constant part of the way the CJEU interprets and applies EU law. In a period where fundamental rights and values are increasingly under threat both globally and in Europe, judicial institutions remain an important last bastion of protection. Commenting on Judge Rosas’ (2007) observation that the CJEU is not in fact a human rights Court, three critical questions are derived: The first question is the most related to this special issue. What does the development of the CJEU—an institution with human rights responsibilities—mean for general international human rights law? The second takes up Judge Rosas’ observation that the CJEU, unlike the Strasbourg Court, has extensive judicial responsibilities beyond human rights. What does the development of EU human rights law mean for EU law more broadly? Finally, if Judge Rosas is right that the CJEU is not a human rights Court, what does that mean for its relationship to the European Court of Human Rights (ECtHR) and the other organs of the Council of Europe? In answer to this last question, the article cautiously advances the argument that the very fact that the CJEU is not a human rights Court implies a more robust role than Judge Rosas suggests for external review of EU law by international human rights bodies.

Prohibition of Discrimination on Grounds of Nationality in the Freedom of Movement of Persons within the EU in the Light of Case Law of the Court of Justice of the European Union

Research purpose. The EU Customs Law is a significant branch of the EU substantive law. On the basis of the Union Customs Code (UCC; Regulation [EU] No. 952/2013) and the Combined Nomenclature of the European Union (Regulation [EU] No. 2658/87 and its Annexes), it regulates the international trade of the European Union and its Member States with the third countries, in particular the taxation of the international trade operations by applying the customs duties/tariffs. However, after the adoption of the UCC, which imperatively requires all the customs administrations of the EU Member States to work as one, the problem of the uniform application of the EU customs law remains very important. Therefore, the authors analyse the practice of the Baltic States (i.e. Republics of Estonia, Latvia and Lithuania) in this area, based on the case law of the Court of Justice of the European Union (CJEU) in cases involving references to the CJEU by the national courts of different Baltic States. Design/Methodology/Approach. The authors used the thematic analysis method and the method of generalisation of professional (judicial) practice as the basis of the chosen methodology and its design. Therefore, first of all, the authors have selected the judicial cases of the CJEU (in the period from 2010 to 2018) related to a certain theme – customs duties. Second, the authors compared the practice of the CJEU in such cases, which are attributable to the relevant EU Member State in order to identify the problems of uniformity in the application of the EU customs law (specific to the different Baltic States). Finally, by using comparative insights and comparative method, the authors present proposals for the improvement of legal regulation to ensure the compatibility of national rules and practices with the EU law. Findings. During the investigation, the authors established that the problems of the uniform application of the EU customs law in the Baltic States arose in specific areas. Such areas were tariff classification of goods, determination of the origin and value of goods (in the case of Latvia), regulation of customs procedures (in the case of Estonia), customs duties and other import taxes preferences (in the case of Lithuania). At the same time, it was established that the national courts of the Republic of Lithuania were the least active in ensuring co-operation with the CJEU this area, which could have been caused by the improper national legal regulations. Originality/Value/Practical implications. The authors present (after the assessment of the experience of the Baltic States) the proposals for the improvement of both the legal regulations of the EU customs law as well as national legal regulations (in particular – in the Republic of Lithuania) to improve the areas that cause systemic irregularities of the uniform regulation of the international trade regulatory measures of the European Union. Whilst some of the similar studies were completed in the recent years (e.g. Limbach 2015), they do not provide a detailed comparative analysis of the issues that were investigated, specifically considering the situation in the Baltic States.

Quite unsurprisingly, the CJEU has held that the ECB's OMT program does not violate EU law. In accordance with this holding, I argue in the first part of this note that the OMT program does not transgress the ECB's mandate under the Treaty, which is often interpreted too narrowly, in particular by German legal scholars. Furthermore, I argue that a violation of the prohibition of monetary financing of the member States as enshrined in article 123, para 1 TFEU cannot be inferred from the ECB's announcement of a program, which has never been implemented. In any case, there is clearly no manifest and grave transgression of EU competences which, according to the German Federal Constitutional Court's (FCC)Honeywelldoctrine, is required for an ultra vires finding. The second part of this note shows that the FCC's doctrine regarding transgressions of competences by EU organs (ultra vires review) is not only unconvincing as a matter of principle but also and worse (as on premises we can always reasonably disagree) not consistently applied to the OMT program. The note also objects to the Court's somewhat trendy blending of ultra vires and constitutional identity review of EU law through which it increasingly conceals its approach of applying the so-called constitutional constraints of European integration to the EU organs' conduct. The forthcoming FCC judgment is therefore less important as regards the quite foreseeable finding on the lawfulness of the OMT program but – hopefully – of vital importance as it might embody a more coherent relaunch of the FCC's standards of judicial review with regard to EU law.The judgment of the Court of Justice of the European Union (CJEU) on the European Central Bank's (ECB) 2012 announcement of future Outright Monetary Transactions (OMT) comes as no surprise. It had not been expected that the CJEU would interpret the European Economic and Monetary Union's (EMU) Treaty provisions the way the FCC had “suggested.” Neither had it seemed conceivable that the CJEU would reject the FCC's request for a preliminary ruling holding that a legally non-binding assessment of the EU action's lawfulness could not be requested under Article 267 TFEU. The judgment had nevertheless been awaited for with tension for two reasons: First, in the vigorous and in part very critical debate about the ECB's competences under the TFEU and its alleged ultra vires action a judgment by the CJEU was necessary to settle the fundamental European law issues at stake. This is all the more important with regard to the ECB's current Expanded Asset Purchase Program (EAPP) as well as its interconnection with the European Stability Mechanism's (ESM) financial assistance programs. The CJEU's holdings on the ECB's competences within the EMU framework are discussed in the first part of this note regarding the distinction between monetary and economic policy (infra section A.I.) and the interpretation of Article 123, paragraph 1 TFEU which prohibits monetary financing of the member States by the ECB (infra section A.II.). Second, it was clear that the judgment would shape the new stage in the changing and sometimes explosive on-off relationship between the CJEU and the FCC, the stage entered into by Karlsruhe's first ever request for a preliminary ruling. The FCC had fortified its ultra vires doctrine and clearly indicated its readiness not to follow the CJEU but to insist on the notorious “last word” of the German Constitution instead. Thus, the second part of this note discusses the constitutional legal premises of the FCC's approach and the procedural and substantial manner in which the FCC tries to scrutinize the ECB's OMT program (infra sections B.I. and B.II.). In this context, possible scenarios for the upcoming judgment (infra section C.I.) and consequences for European multi-level constitutionalism (infra section C.II.) will be discussed.

Just before Christmas 2014, the Court of Justice of the European Union (CJEU) unexpectedly put a stop to the European Union's (EU) accession to the European Convention of Human Rights (ECHR). It declared the agreement on the accession of the EU to the ECHR to be incompatible with the specific characteristics and autonomy of EU law in Opinion 2/13. This Opinion reflects the increasing worries of the CJEU about the sometimes far-reaching case law of the European Court of Human Rights (ECtHR), which could hamper the effectiveness of EU law. This tension has become especially visible in the Area for Freedom Security and Justice in cases dealing with the Dublin Regulation and the European Arrest Warrant. While the CJEU has to balance the uniformity, primacy and effectiveness of EU law, and the upholding of the system based on mutual trust and mutual recognition with fundamental rights concerns, the ECtHR's sole objective is to guarantee the latter. CJEU judges expressed their concern that the ECtHR does not always take the particularities of EU law, such as mutual trust in the context of the Dublin system, sufficiently into account, because some Strasbourg judges are not familiar with them. There has also been growing uneasiness in Luxembourg with the intrusive case law of the ECtHR in relation to the preliminary reference procedure in Article 267 of the Treaty on the Functioning of the European Union (TFEU). This is because the ECtHR found violations of Article 6 ECHR in Dhahbi and Schipani for the failure of the highest Italian court to provide a statement of reasons for its refusal to request a preliminary ruling from the CJEU on the basis of Article 267 TFEU. Similar frustration exists in Strasbourg vis- a -vis the CJEU and especially Opinion 2/13, which was not received warmly. Dean Spielmann, former President of the ECtHR, stated that it was ‘a great disappointment’ and held that the ‘the onus will be on the Strasbourg Court to do what it can in cases before it to protect citizens from the negative effects of this situation’.Against this background, it is not surprising that the official contacts between the CJEU and the ECtHR were only resumed in March 2016, when a delegation from the ECtHR visited the CJEU.

With Opinion 1/17, the Court of Justice of the European Union (CJEU) approved the Investment Court System (ICS) contained in the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada. This means that the EU can proceed with the ratification process of the investment protection part of CETA and the other free trade agreements it has concluded, and which contain a similar ICS. However, as the author illustrates, the approval of the ICS is conditioned by a complete isolation of EU law from international investment law. More specifically, the CJEU made clear that the ceta tribunals operate outside the EU legal order and have no power to interpret or apply EU law. At the same time, the CJEU highlighted the importance that the ceta Parties adopt supplemental rules for reducing the financial burden for access to the ICS for small and medium-sized enterprises (SMES). Additionally, the CJEU rejected the currently existing possibility that binding joint interpretations of the ceta Parties could have retroactive effect. In sum, the approval of the ICS by the CJEU enables the European Commission to continue to develop the multilateral investment court (MIC) within the uncitral Working Group iii as long as it follows the blueprint of the CETA ICS.

The International Court of Justice and the Court of Justice of the European Union: Between Fragmentation and Universality of International Law

This chapter focuses on the Court of Justice of the European Union (CJEU), which comprises two courts: the CJEU and the General Court. It first provides an overview of the CJEU’s structure and functions, and then discusses some of its main rulings and their significance. It further considers rulings on the powers of the institutions, some key legal judgments made in response to questions referred to the CJEU by national courts, the impact of CJEU rulings on EU policy, and post-Maastricht trends in the CJEU and EU law. It also assesses the evolving political reactions towards the judgments of the Court, along with the debate over whether the member states have been able to effectively curb the CJEU’s radical jurisprudence.

After Schrems II: A Proposal to Meet the Individual Redress Challenge