Refusal to refer for a preliminary ruling and a right to a fair trial: Strasbourg court’s position

Agne Limante (MA, PhD) is a Research Fellow at the Law Institute of Lithuania.

The duty of last instance national courts to submit preliminary references to the Court of Justice of the European Union (CJEU) is analysed by academics almost exclusively in the light of the Luxembourg Court’s case law. However, the case law of European Court of Human Rights (ECtHR) also appears to be relevant in this context. In several instances the ECtHR was asked whether non-referral of preliminary questions to the CJEU constituted a breach of Article 6 ECHR, guaranteeing the right to a fair trial.[1] This post aims at providing some reference in this regard. First, it briefly describes the rules governing the preliminary reference procedure. Then, it analyses the ECtHR’s judgements relevant to this subject. Some conclusions will follow.

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How does the professional background of a future EU judge in the ECtHR matter?

Kaja Kaźmierska, English Law and German Law LLB & M.LL.P, King’s College London/Humboldt University;  EU International Relations and Diplomacy Studies, MA, College of Europe

The EU is supposed to join the ECHR, as provided by Article 6(2) TEU.[1] The agreement between the two institutions was reached in April 2013, as a result of negotiations which commenced in June 2010.[2] However, the CJEU issued its Opinion regarding the agreement on the 18th of December 2014, declaring the agreement incompatible with EU law which significantly slowed down the accession process.[3] Nevertheless, the EU’s accession to the ECHR is still expected, which would fundamentally shift the balance within the European mechanism of human rights protection. Upon joining, the EU will be granted a voice in the European Court of Human Rights (ECtHR), as there will be one EU judge in the Strasbourg Court, along with one for every Council of Europe Member State. As a result, there will be 29 judges from the EU – one from every country and the EU judge. Continue reading

FEATURED: BIICL Annual Grotius Lecture 2015, 26 March 2015

Thursday 26 March 2015
The Law Society, 113 Chancery Lane, London WC2A 1PL

Annual Grotius Lecture
17:30-18:30 (followed by drinks reception)

Eleanor Sharpston QC will deliver the 2015 Annual Grotius Lecture on the subject

‘Squaring the Circle? Fighting Terrorism whilst Respecting Fundamental Rights’

Eleanor Sharpston QC has been Advocate General at the Court of Justice since 2006. After serving as a référendaire (judicial assistant) to Advocate General, subsequently Judge, Sir Gordon Slynn, she taught and researched what was then EC law, together with comparative law, at University College London and then at King’s College Cambridge. In parallel, she pursued a career at the Bar specialising in EC law and the ECHR, becoming a Queen’s Counsel in 1999. She has published widely on European Union law and comparative law.

She brings her extensive experience as an academic, practitioner and now Advocate General to this prestigious Annual Lecture of BIICL.

The Lecture will be of great interest to barristers, solicitors, judges, arbitrators, government officials, intergovernmental officials, academics, students and all with an interest in European law.

For further information and to book online, please visit www.biicl.org/event/1082

Sponsored by Shell and Carter-Ruck

Join in the conversation for this event @BIICL #Grotius2015

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Case C-435/12 ACI Adam v Stichting de Thuiskopie

Justin Koo, PhD Candidate, The Dickson Poon School of Law, King’s College London

The claimants in this case were importers of data media storage devices such as CDs. By virtue of Article 16c(2) of the Auteurswet (Dutch copyright law), the claimants were responsible for the payment of remuneration to authors. This payment has the effect of offsetting the costs of the private copy exception under Article 16b given that the imported media storage devices facilitate acts of private copying. However, the claimants contended that the remuneration payable to the defendants incorrectly takes into account copying from unlawful sources. In other words, the importers were being forced to pay compensation for illegal acts that should not fall within the private copy exception under Article 16b.

On appeal to the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), the case was stayed and three questions referred to the Court of Justice of the European Union (CJEU).[1] In short, the first question asked whether private copying from unlawful sources fell within the scope of the private copy exception under Article 5(2)(b) of the Information Society Directive. In terms of the second question, the Dutch Supreme Court essentially asked what the role of the three-step test under Article 5(5) of the Information Society Directive is. The CJEU in addressing both questions together, posed the question whether reading Article 5(2)(b) and Article 5(5) of the Information Society Directive together would preclude national legislation that does not distinguish between the sources (lawful or unlawful) from which a private reproduction is made. With this in mind, the significance of the case was not about the determination of the levy to be paid but rather, the scope and application of the private copy exception.

In simple form, Article 5(2)(b) does not expressly address whether the source of the reproduction must be lawful in order to come within the exception. As such it was unclear whether copying from unlawful sources could also be included in the scope of the private copy exception. From a preliminary perspective, the exceptions and limitations provided by Article 5 of the Information Society Directive must be interpreted strictly following the decision in Infopaq.[2] Furthermore, their implementation into domestic law must be in accordance with the three-step test, as provided under Article 5(5) and emphasised under Recital 44 of the Information Society Directive. Following this established reasoning, the interpretation of Article 5(2)(b) must be understood to preclude the making of private copies from unlawful sources.

In respect to the strict interpretation of the exceptions and limitations, this can be aligned to the aim of establishing a smooth functioning internal market. Therefore, adopting a broad interpretation of the private copy exception as in the case of Article 16c of the Dutch copyright law could be detrimental to the proper functioning of the internal market.  This is because it could allow Member States to have varying forms of copyright protection not envisaged by the Information Society Directive. Furthermore, tolerating private copies made from unlawful sources would run counter to the Information Society Directive’s aim to establish a high level of protection and foster creation and investment in copyright works. Moreover, it would likely influence further acts of piracy and counterfeiting. This is because the toleration of copies made from unlawful sources could be indirectly seen as toleration of the unlawful sources.

In terms of the application of the three-step test, making private copies from unlawful sources would fail that test in at least two regards. Firstly, allowing private copies to be made from unlawful sources would conflict with the normal exploitation of the work because persons would be inclined to make a personal copy from a cheaper illegitimate copy rather than from a legal copy. This could negatively impact on the demand for legitimate versions of authors’ works. Secondly, tolerating private copying from unlawful sources may prejudice the legitimate economic interests of the author because he would be effectively unable to rely on his exclusive right of reproduction in cases of private copying. In other words, authors would be forced to tolerate the reproduction infringements that accompany private copying even where the source is an unlawful one. Thus allowing, private copying from unlawful sources would undermine the effectiveness of the exclusive right of reproduction.

With this in mind, Articles 16b and 16c of the Dutch copyright law have to distinguish between the lawful and unlawful sources of private copying in order to be compliant with Article 5(2) (b) of the Information Society Directive. The implication of this is that the inclusion of compensation for copying from unlawful sources would not be fair on the grounds that copying from unlawful sources does not fall within the scope of the private copy exception.[3] As such the claimants were right in contending that the private copy levy they were being charged was unfair and excessive.

What Now

From this case it is made clear that the private copy exception only applies to copies made from lawful sources. Therefore, making copies from unlawful sources amounts to an infringement of the exclusive right of reproduction provided by Article 2 of the Information Society. However, the more pertinent lessons to be learned from this case relate more generally to the implementation of the exceptions and limitations found under Article 5 of the Information Society Directive. It would appear that Member States do not have much leeway in transposing and interpreting the twenty-one exceptions and limitations provided. Member States do not have the freedom to expand the scope of the exceptions provided. Rather, they only have the freedom to restrict the scope of the exceptions especially in regards to new technologies.[4] Furthermore, there must be coherent and consistent application of the exceptions across Member States. As a result, it can be inferred that the wording of the exceptions provided under Article 5 are not just prototypes but perhaps ready-made provisions to be implemented verbatim.

On the one hand this strict interpretation may be good in terms of legal certainty. However, from a different perspective this development of narrow exceptions may be cause for concern given the broad and far reaching interpretations given to the exclusive rights.

 


[1] Only the first two questions are looked at in this article.

[2] Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009]

[3] This position was suggested in the earlier Advocate General Opinion of Trstenjak on Case C-467/08 Sociedad General de Autores y Editores (SGAE) v Padawan SL [2010] para 78

[4] See Recital 44 of the Information Society Directive

Through the Lens of Goods and Services: An Analysis of the CJEU

Matthew Foster

2nd year LLB student at King’s College London


a.   Introduction

The Court of Justice of the European Union[1] (CJEU) is one of the most active judicial bodies in the world, delivering over 26,000 judgements since its creation.[2] Its impact upon Europe has been deep and pervasive and it has influence over many different policy sectors.[3] As AG Maduro correctly identifies, the Court has engaged in systematic “majoritarian activisim”[4] in pursuance of judicial harmonisation. Moreover, the Court frequently takes a teleological approach to jurisprudence in order to achieve this objective, sometimes basing its decisions upon “the spirit” of the Treaties opposed to their literal wording.[5] The scope, motivations and approach of the Court have a compounded effect, making it incredibly potent. It is capable of creating highly creative (and sometimes unpredictable) case law which can affect a wide range of people in a broad variety of sectors. Such power has the potential to be both highly beneficial and highly damaging.

 

In light of this some scholars have questioned its legitimacy.[6] There is an inherent friction between Member States and the Court; as Craig and de Burcá highlight “each has locked itself into a system of review whose dynamics it cannot easily control”[7]. This is because the Court’s power of review stems from all 28 Member States who all have divergent opinions. Holding the Court to account is therefore very difficult. This poses a problem when one considers the uneasy relationship direct effect and primacy have with Member State sovereignty. However the biggest danger to the Court, and the important role it plays, is itself. As established, the stakes are very high and poor judicial decisions can have colossal ramifications.

 

In this article I will analyse the approach of the Court through the lens of the fundamental freedoms. I will highlight the different approaches taken in regards to free movement of goods and free movement of services and argue why the Court should follow its approach in the latter.

 

b.   Free Movement of Goods

The bulk of the case law concerning free movement of goods can be found in relation to measures having equivalent effect to quantitative restrictions.[8] In this area the Court has repeatedly tied itself in knots and generally struggled to take a decisive approach.

 

In the seminal case of Dassonville[9] the scope of Article 34 TFEU was cast very wide, indeed its “potential breadth […]is striking”.[10] The Court held that “any measure capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”[11] would fall within the scope of Article 34, and thus be prohibited. Case law has developed these principles, meaning that at its widest scope anything that could potentially interfere[12] with intra-Community trade, even indirectly,[13] could fall within the scope of Article 34. Evidently this was a step too far. When taken to extremes Dassonville could be used to challenge a plethora of national rules.[14] As the notorious Sunday trading cases[15] illustrate something had to be done.

 

Consequently, in the infamous decision in Keck, the Court found it “necessary to re-examine and clarify its case law on this matter”.[16] Some tactfully state that this is merely a refinement of the Dassonville test,[17] however as Weatherill bluntly puts it, the Court simply “changed its mind”.[18] The decision in Keck effectively created an exception for certain selling arrangements that applied equally to all measures in fact and in law.  This was not completely unprecedented (drawing from academic commentary[19] and case law[20] for its inspiration) and neither was its aim undesirable.[21] In fact, the Commission was initially very positive, stating that “the Court has completed its case law”[22]as a result of the judgement.

 

Regardless, the decision has been very divisive. Barnard states the ruling received “brickbats and bouquets in almost equal measure”.[23] However it is important to note that the majority of said ‘bouquets’ were from Member States thankful for a curtailment of the previous law. The majority of academic opinion is critical of the case; several key problems arise from it. Firstly it purported to clarify the case law; however it said nothing about which previous cases it overruled. Secondly the distinction between product requirements and certain selling arrangements is extremely fine, a problem exacerbated by the concept of dynamic/static rules.[24] Finally, and most damaging, the concept was completely novel and signified a departure from the well-established test of distinctly applicable and indistinctly applicable measures.[25] This caused the Court a considerable headache.[26]

 

Thankfully the Court heeded this criticism[27] and altered[28] its decision in Keck, at least to an extent. In Commission v Italy (Trailers)[29] the Court reaffirmed another test, the market access test. It is debatable whether this is an overarching theme or merely another category of breach; however the overall result is relatively clear. If a measure fails the Keck test it will be considered automatically in breach of the market access test. If a measure passes the Keck test it will still have to pass the market access test independently. Therefore, irrespective of how a measure fares under the Keck test, it will always be considered in light of Commission v Italy (Trailers).[30] Put simply the Keck test is not as relevant as it once was, it is subsumed by Commission v. Italy. There are now three types of measures which will fall foul of Article 34, distinctly applicable measures, indistinctly applicable measures and measures which prevent access to the market.


The market access test, however, is not perfect; there is some uncertainty as to its scope, with criticism present well before Commission v Italy (Trailers).[31] In Leclerc-Siplec[32]AG Jacobs stated that such a test could risk encompassing too much national regulation (as with Dassonville) and that therefore a minimum threshold criterion should be established. This may be a feature of the test, as the Court did use the phrase “considerable influence”[33] in the ruling; however this has not yet been resolved. Barnard states[34] that this concept of a threshold is at odds with the de minimus rule found in cases such as Bluhme.[35] This ignores the huge variation in barriers to the market that can arise; therefore such a threshold remains useful.

 

Although the exact scope of Article 34 TFEU is now almost fully defined, it is clear that the method the Court used to get to this position is flawed. The scope of the test fluctuated wildly throughout the years and no one test was applied consistently. This has resulted in a very messy series of decisions. The law concerning free movement of goods is unnecessarily convoluted.

 

c.   Free Movement of Services

The Courts approach in regards to free movement of services is much preferred over the approach outlined above. In contrast to the relatively straightforward cases in regards to goods[36] the Court faced the problem of defining exactly what a service was, particularly considering the vague wording in Article 57 TFEU.[37]


Despite this the Court took a purposive and consistent approach to the matter. For the purposes of Article 56 TFEU,[38] a service is a self-employed activity provided for remuneration on a temporary basis with a cross-border element. Even though the Court has cast the scope fairly wide, especially in regards to the definition of remuneration[39] and the cross border element[40] there has not been the problems encountered with free movement of goods. This is because the Court has considered its approach and has thus been consistent when applying it. By avoiding the excessively broad statements that are present in cases like Dassonville the Court removes the need for correction further down the line.


Furthermore in regards to which measures are caught by Article 56, the Court has again been consistent. It has not sought to apply different tests or experiment with new concepts; rather it has taken a structured approach. The measures falling within the scope of this provision mirror that of the free movement of goods, but without the entire Keck fiasco. Distinctly applicable measures[41], indistinctly applicable measures[42] and measures which prevent access to the market[43] are all caught by the provision.

 

Free movement of services is arguably much more complex than free movement of goods, due to the human element it inherently incorporates. This freedom affects not only the provision of services, but those who deliver them. Consequently the stakes are much higher; any alteration to this framework will have an impact upon the flow of citizens between Member States. However due to the Court’s consistent and restrained approach it has managed to pursue the overall aim of a free market[44] without any of the complications encountered above.

 

d.   Conclusions

It is evident that the Court is an extremely powerful and influential institution of the EU; it has the power to shape events across many countries. Considering this, and the inherent friction such an institution has with Member States, it is of utmost importance that the Court’s decisions are of the highest standard. It has been evidenced that the Court can err, especially when determining the scope of Treaty provisions and choosing which principle to apply. However it has also been shown that the Court can operate in a consistent and purposive manner, ensuring that the aims of the EU are carried out through case law. This is the approach that should be, and largely has been taken by the Court. However as the Court’s jurisdiction strays into more and more litigious areas, such as human rights and citizenship, it is crucial to remember the lessons learnt when developing the freedoms to ensure such mistakes are not made again.

 


[1] Hereafter referred to as the Court.

[2] ‘The Court in Figures’ (1 July 2013) <http://curia.europa.eu/jcms/jcms/P_80908/> accessed 20 January 2014

[3] Paul Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP) [119]

[4] Communication from the Commission concerning the consequences of the judgment

given by the Court of Justice on 20 February 1979 in Case 120/78 (‘Cassis de Dijon’)

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:1980:256:0002:0003:EN:PDF

[5] C-26/62  Van Gend en Loos (1963)  ECR I [12]

[6] Giandomenico Majone, ‘Two logics of delegation, agency and fiduciary relations in EU governance’ [2001] EUP 2(1) 103

[7] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [127]

[8] Consolidated Version of the Treaty on the Functioning of the European Union (2012) OJ C 326, Article 34

[9] C-8/74 Procurer de Roi v Dassonville [1974] ECR 837

[10] Catherine Barnard, The Substantive Law of the EU (3rd Edition, 2010, OUP) [73]

[11] C-8/74 Procurer de Roi v Dassonville [1974] ECR 837 [5]

[12] C-184/96 Comission v France (Foie Gras) [1998] ECR I-6197

[13] C-120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649

[14] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [74]

[15] Torfaen Borough Council v B & Q plc [1989] ECR 3851

[16] C-267 & 268/91 Keck and Mithouard [1993] ECR I-6097 [14]

[17] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [74]

[18] Stephen Weatherill, Cases and Materials on EU Law (10th Edition, 2012, OUP) [328]

[19]Eric White, ‘In Search Of The Limits To Article 30 Of The EEC Treaty’ (1989) 26 CMLR 2 235

[20] C-292/92, Hünermund [1993] ECR I-6787

[21] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [665]

[22] [1993] OJ C353/6 [22]

[23] Catherine Barnard, The Substantive Law of the EU (3rd Edition, 2010, OUP) [126]

[24] Eric White, ‘In Search Of The Limits To Article 30 Of The EEC Treaty’ (1989) 26 CMLR 2 235

[25] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [661]

[26] C-405/98, Konsumentenombudsmannen v Gourmet International Products AB [2001] ECR I-1795

[27] Craig and Gráinne de Búrca, The Evolution of EU Law  (2nd Edition, 2011, OUP)  [667]

[28] ibid 141

[29] C -110/05 Commission vItaly (Trailers) [2009] ECR I-519

[30] ibid

[31] ibid

[32]  C-412/93 Leclerc-Siplec [1995] ECR I-179 [41] [49]

[33] C -110/05 Commission vItaly (Trailers) [2009] ECR I-519 [2]

[34] Catherine Barnard, The Substantive Law of the EU (3rd Edition, 2010, OUP) [106]

[35] C-67/97 Bluhme [1998] ECR I-8033

[36] C-97/98 Jägerskiöld [1999] ECR I-7319

[37] Consolidated Version of the Treaty on the Functioning of the European Union (2012) OJ C 326, Article 57

[38] Consolidated Version of the Treaty on the Functioning of the European Union (2012) OJ C 326, Article 56

[39] C-51/96 & C191/97 Deliège [2000] ECR I-2549

[40] C-157/99 Peerbooms [2001] ECR I-5473, C-384/93 Alpine Investments [1995] I-1141

[41] C-288/89 Gouda [1991] ECR I-4007

[42] C-18/87 Commission v Germany [1988] ECR I-5427

[43] C-384/93 Alpine Investments [1995] I-1141

[44] Consolidated Version of the Treaty on European Union (2012) OJ C 326, Article 3(3)