Gesa Kübek, PhD candidate at the law faculty of the University of Passau.
In its February 14, 2017 Opinion 3/15, the European Court of Justice (ECJ) determined that the European Union (EU) possesses exclusive competence to enter into the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (hereafter: Marrakesh Treaty). This decision aligns with Advocate General (AG) Wahl’s prior Opinion, which similarly argued for exclusive EU competence in this domain. However, a closer examination reveals that the ECJ adopted a more restrictive interpretation of the Common Commercial Policy (CCP) – the EU’s international trade authority – compared to the AG. Additionally, the ECJ’s decision on exclusivity fails to provide clarity regarding the appropriate legal basis for the Treaty.
This blog post presents an overview and analysis of Opinion 3/15. It first outlines the core conflict, including the arguments presented by involved parties. Next, it summarizes the ECJ’s position. Lastly, it examines the implications of Opinion 3/15 for the EU’s treaty-making processes.
The Central Conflict: Exclusivity and the Choice of Legal Basis
The World Intellectual Property Organisation (WIPO) finalized the Marrakesh Treaty in June 2013. This treaty aims to improve access to published works for individuals who are blind, visually impaired, or print disabled (“beneficiary persons”). It employs two interconnected instruments to achieve this goal. First, it mandates that contracting parties establish exceptions or limitations to copyright for reproduction, distribution, and public availability to facilitate access to adapted copies for beneficiary persons. Second, it simplifies the cross-border exchange of these accessible format copies.
In April 2014, the EU Council decided to sign the Marrakesh Treaty on behalf of the EU, based on Article 207 TFEU (the EU’s CCP power) in conjunction with Article 114 TFEU (which governs the EU’s internal market and serves as the basis for harmonizing copyright laws within the EU). However, the subsequent Commission proposal for the agreement’s conclusion was rejected by the Member States in the Council, sparking debate regarding the appropriate legal basis for the treaty. The Commission maintained that Articles 207 and 114 TFEU were correctly chosen. Alternatively, they argued, the CCP alone, designated as an exclusive competence by the Lisbon Treaty (Art. 3 (1) (e) TFEU), could serve as the basis. The Commission asserted that the rights and obligations within the Marrakesh Treaty were already largely harmonized by existing EU law. Consequently, they posited that exclusive EU competence was implied (Art. 3 (2) TFEU).
The eight intervening Member States disagreed with the assertion of EU exclusivity, proposing instead that competence to enter into the Marrakesh Treaty should be shared. This could lead to a “mixed agreement” recognizing both the EU and individual Member States as contracting parties. Due to the persistent institutional disagreements, the Commission requested that the ECJ clarify whether the EU possesses exclusive competence to conclude the Marrakesh Treaty.
As previously mentioned, AG Wahl supported the Commission’s pursuit of exclusive EU treaty-making power. However, he determined that the Marrakesh Treaty should be based on Article 207 TFEU regarding the CCP, and – aligning with several Member States – on Article 19 (1) TFEU, which addresses the EU’s authority to enact non-discrimination laws. The latter provision underscores the Marrakesh Treaty’s objective of promoting non-discrimination, equal opportunity, accessibility, and the social inclusion of individuals with disabilities. Although implying exclusivity, choosing Article 19 (1) TFEU carries significant procedural ramifications: Since this provision requires unanimous Council approval for adopting EU legislation, enacting EU treaties under the anti-discrimination power grants Member States veto power within the Council (Art. 218 (8) TFEU).
The ECJ’s Stance in Opinion 3/15
To address the preliminary question, the ECJ first examined whether the Marrakesh Treaty, in whole or in part, falls under the scope of the CCP. It then analyzed whether exclusivity could be inferred according to Art. 3 (2) TFEU.
“Commercial aspects of intellectual property rights” and their reach
The ECJ began by reiterating established case law: an EU act falls under the CCP “if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade” (Daiichi Sankyo). Conversely, the mere possibility of an EU act impacting international trade is insufficient to justify concluding it under the CCP.
The ECJ then outlined that neither of the Marrakesh Treaty’s instruments intends to promote, facilitate, or govern international trade. This stance is particularly noteworthy regarding the import and export of accessible format copies, as “there is no doubt that those rules relate to the international trade of such copies” (para 87). However, the ECJ stated that the cross-border exchange specified in the Marrakesh Treaty cannot be equated with commercially-purposed international trade. The circulation and exchange of accessible format copies is inherently non-commercial, using cross-border transactions simply to enhance access for beneficiary persons, not to encourage, manage, or streamline trade. Additionally, the non-commercial nature of the Marrakesh Treaty is evident in its general avoidance of stipulating trade for profit.
The Marrakesh Treaty limits trade in accessible format copies to authorized entities operating on a not-for-profit basis and serving solely beneficiary persons. However, AG Wahl argued that the non-profit nature of this trade is irrelevant to the CCP’s applicability. He proposed a broad definition of “commercial aspects of intellectual property rights (IPR),” which Article 207 (1) TFEU explicitly includes within the CCP’s scope. He posited that the CCP encompasses non-commercial transactions and activities, as the exchange of goods and services inherently implies trade. Rather, Article 207 (1) TFEU excludes non-commercial aspects of IPR, such as moral rights, that are not directly related to trade.
The ECJ rejected the notion that commercial aspects of IPR only pertain to moral rights. Such a broad interpretation would, according to the Court, “lead to an excessive extension of the field covered by the common commercial policy by bringing within that policy rules that have no specific link with international trade” (para 85). Therefore, the ECJ concluded that the Marrakesh Treaty falls outside the CCP’s scope.
Implied Exclusivity and the “ERTA Doctrine”
The ECJ then considered whether exclusivity could be inferred through the “ERTA doctrine” (based on the ECJ’s judgment in ERTA), codified in Article 3 (2) TFEU. This doctrine grants the EU exclusive treaty-making powers when an international agreement might impact or alter the scope of existing common rules. In its ERTA case law, the ECJ established a two-pronged test to determine external Member State pre-emption: First, a “comprehensive and detailed analysis” determines whether the agreement’s provisions are substantially covered by existing common EU rules (Opinion 2/91). Second, it assesses whether the agreement’s conclusion would affect the “uniform and consistent application” of these common rules and the effective operation of the system they establish (Opinion 1/13, discussed here).
The parties largely agreed that the Marrakesh Treaty would need to be implemented within the framework of Directive 2001/29, which harmonizes certain aspects of copyright and related rights within the information society. However, the ECJ noted that “it is clear (..) that the EU legislature brought about only a partial harmonisation of copyright and related rights, given that the directive is not intended to remove or to prevent differences between national laws which do not adversely affect the functioning of the internal market” (para 115). Directive 2001/29 allows for considerable Member State discretion in implementing exceptions and limitations to distribution for the benefit of individuals with disabilities. Does this residual Member State competence mean that the Marrakesh Treaty is not substantially covered by common EU rules, thereby preventing implied exclusivity?
The ECJ determined that it does not. Directive 2001/29 subjects the Member States’ remaining competence to various conditions, meaning this discretion is limited by EU law. Member States “are not free to determine, in an un-harmonised manner, the overall boundaries of the exception or limitation for persons with a disability” (para 122). Furthermore, unlike Directive 2001/29, the Marrakesh Treaty obligates contracting parties to provide for such an exception or limitation, requiring Member States to adhere to the constraints of EU law. Therefore, the ECJ concluded that independent external action by Member States would impact common EU rules, granting the EU exclusive competence to conclude the Marrakesh Treaty.
Opinion 3/15 and EU Treaty-Making: A Brief Analysis
As mentioned earlier, the ECJ’s finding of (implied) exclusivity is unsurprising to many, as is the broad interpretation of the “largely covered” aspect of the ERTA-test. In both Opinion 1/03 and the more recent Green Network case, the ECJ confirmed that substantial Member State discretion in implementing EU legislation does not preclude exclusivity. Nevertheless, as AG Wahl highlighted, this case law “begs the question: when is an area sufficiently covered by EU rules to exclude Member State competences to act externally?” (para 130 of the opinion) In other words, to what extent must the EU exercise its internal competence to trigger the “ERTA effect”?
Green Network and Opinion 3/15 suggest that the ECJ will prioritize the effects of international agreements on common EU rules over the degree of material overlap. Even if existing EU law, arguably not fully harmonized, grants residual powers to Member States, any adverse effects on the EU’s internal legal framework are sufficient to trigger implied exclusivity under Art. 3 (2) TFEU. If Member States can be pre-empted when an agreement is only partially covered by internal EU legislation, could they also be pre-empted when the EU lacks internal competence, provided the agreement clearly impacts existing EU law? The ECJ is expected to address this question in its pending Opinion 2/15 on the EU-Singapore Free Trade Agreement (discussed here). This case requires the ECJ to determine whether EU primary law provisions can exceptionally trigger the “ERTA effect.”
The ECJ’s clarification regarding the scope of Art. 207 (1) TFEU, particularly “commercial aspects of IPR,” may also influence future EU treaty-making. Opinion 3/15 demonstrates that the mere cross-border exchange of goods or services does not automatically constitute commercially-purposed international trade. Instead, a connection to trade requires the transaction or activity to have a commercial objective. Consequently, using trade as a means to achieve non-commercial aims is insufficient to bring a measure within the CCP’s purview. While the ECJ did not entirely dismiss the possibility of “commerce” encompassing non-profit trade on a case-by-case basis, it contradicted AG Wahl’s suggestion that Art. 207 TFEU generally includes non-commercially driven transactions or activities. Notably, in light of Opinion 2/15 which also raises this point, the ECJ did not dispute the AG’s claim that moral rights fall outside the CCP’s scope.
Returning to the Marrakesh Treaty, Opinion 3/15 leaves a crucial question unanswered: What is the appropriate legal basis for concluding the agreement? The ECJ merely clarifies that the Council Decision to sign the Treaty was incorrectly based on Art. 207 TFEU, without elaborating on the correct legal basis. Although the Commission’s preliminary question was limited to the agreement’s exclusive nature, the choice of legal basis influences the process of (exclusive) EU treaty-making. The ECJ notably refrains from discussing AG Wahl’s reference to Art. 19 (1) TFEU, or the broader effects of the non-discrimination principle on the EU’s external actions. While clarifying the EU’s ability to independently conclude the agreement, the choice of legal basis – and thus the procedural approach – is left to the discretion of the EU institutions. Throughout the proceedings, the Commission maintained that the Marrakesh Treaty should be based on Art. 114 TFEU rather than Art. 19 TFEU. Conversely, most intervening Member States agreed with the AG. As using Art. 19 (1) TFEU would necessitate a unanimous Council vote, granting Member States veto power, institutional debate regarding the Marrakesh Treaty’s conclusion may persist.
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