Opinion 3/15

Opinion pursuant to Article 218(11) TFEU

(Opinion pursuant to Article 218(11) TFEU – Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled – Article 3 TFEU – Exclusive external competence of the European Union – Article 207 TFEU – Common commercial policy – Commercial aspects of intellectual property – International agreement that may affect common rules or alter their scope – Directive 2001/29/EC – Article 5(3)(b) and (4) – Exceptions and limitations for the benefit of people with a disability)

Summary — Opinion of the Court (Grand Chamber), 14 February 2017

1. Common commercial policy—International agreements—Conclusion—Competence of the Union—Scope—Marrakesh Treaty on access to published works for visually impaired persons—Not included

   (Arts 3(1)(e) TFEU and 207 TFEU)

2. International agreements—Conclusion—Competence of the Union—Marrakesh Treaty on access to published works for visually impaired persons—Exclusive nature—Basis—Effect on rules laid down in Directive 2001/29

   (Art. 3(2) TFEU; European Parliament and Council Directive 2001/29, Recital 7 and Art. 5(3)(b) and (4))

3. International agreements—Conclusion—Competence of the Union—Exclusive nature—Basis—Effect on common rules of the Union—Criteria for assessment

   (Art. 3(2) TFEU)

1.  The conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled does not fall within the common commercial policy defined in Article 207 TFEU. Consequently, the European Union does not have exclusive competence under Article 3(1)(e) TFEU to conclude that treaty.

   The Marrakesh Treaty is, in essence, intended to improve the position of ‘beneficiary persons’ by facilitating their access to published works, through various means, including the easier circulation of accessible format copies. Concerning, next, the content of that treaty, the latter makes clear that the Contracting Parties must use two separate and complementary instruments in order to achieve its objectives. First, Article 4(1) of the treaty provides that Contracting Parties are to provide for an exception or limitation to the rights of reproduction, distribution and making available to the public, in order to make accessible format copies more readily available for beneficiary persons. Secondly, Articles 5 and 6 of the Marrakesh Treaty impose certain obligations relating to the cross-border exchange of accessible format copies.

   As regards, in the first place, the harmonisation of the exceptions and limitations to the rights of reproduction, distribution and making available to the public, recital 12 in the preamble to the said treaty specifically states that such harmonisation is undertaken with a view to facilitating the access to, and use of, works by beneficiary persons. Furthermore, Article 4 of the Marrakesh Treaty is not capable of bringing about an approximation of national laws serving to facilitate international trade significantly, given that the Contracting Parties have a broad discretion with regard to the implementation of that article and that it follows from Article 12 of that treaty that the latter has neither the object nor the effect of preventing such parties from introducing in their own national laws other exceptions and limitations in favour of beneficiary persons than are provided for by the treaty. Moreover, the argument that, of the rules governing intellectual property, only those relating to moral rights are not encompassed by the concept of commercial aspects of intellectual property, as referred to in Article 207 TFEU, cannot be accepted, as it would 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. In those circumstances, the rules of the Marrakesh Treaty which provide for the introduction of an exception or limitation to the rights of reproduction, distribution and making available to the public cannot be held to have a specific link with international trade such as to signify that they concern the commercial aspects of intellectual property referred to in Article 207 TFEU.

   As regards, in the second place, the rules of the Marrakesh Treaty governing the export and import of accessible format copies, there is no doubt that those rules relate to international trade in such copies. However, the objective of such rules must be taken into consideration for the purpose of assessing their connection with the common commercial policy. It must be held that Articles 5, 6 and 9 of the treaty are not specifically intended to promote, facilitate or govern international trade in accessible format copies, but are rather intended to improve the position of beneficiary persons by facilitating such persons’ access to accessible format copies reproduced in other Contracting Parties. That being so, the facilitation of the cross-border exchange of accessible format copies appears to be a means of achieving the non-commercial objective of the Marrakesh Treaty rather than an independent aim of the treaty. Furthermore, in view of its characteristics, the cross-border exchange for which the Marrakesh Treaty provides cannot be equated with international trade for commercial purposes.

   In those circumstances, the mere fact that the scheme introduced by the Marrakesh Treaty may possibly apply to works which are, or may be, commercially exploited and that it may, in that event, indirectly affect international trade in such works does not mean that it is within the ambit of the common commercial policy.

   (see paras 70-73, 83-91, 100, 101)

2.  Pursuant to Article 3(2) TFEU, the European Union has exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope. There is a risk that common EU rules may be adversely affected by international commitments undertaken by the Member States, or that the scope of those rules may be altered, which is such as to justify an exclusive external competence of the European Union, where those commitments fall within the scope of those rules. A finding that there is such a risk does not presuppose that the area covered by the international commitments and that of the EU rules coincide fully. In particular, such international commitments may affect EU rules or alter their scope when the commitments fall within an area which is already covered to a large extent by such rules.

   The conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled falls within the exclusive competence of the European Union since the body of obligations laid down by that treaty falls within an area that is already covered to a large extent by common EU rules and the conclusion of the treaty may thus affect those rules or alter their scope. The exception or limitation to the rights of reproduction and making available to the public provided for by the Marrakesh Treaty will have to be implemented within the field harmonised by Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. The same is true of the import and export arrangements prescribed by that treaty, inasmuch as they are ultimately intended to permit the communication to the public or the distribution, in the territory of a Contracting Party, of accessible format copies published in another Contracting Party, without the consent of the rightholders being obtained.

   In that regard, the Member States may not enter, outside the framework of the EU institutions, into international commitments falling within an area that is already covered to a large extent by common EU rules, even if there is no possible contradiction between those commitments and the common EU rules. Thus, even if it were established that Article 11 of the Marrakesh Treaty lays down a comparable obligation to the obligation arising under Article 5(5) of Directive 2001/29, or that the conditions laid down in Articles 4 to 6 of that treaty are not, as such, incompatible with the conditions set out in Article 5(3)(b) and (4) of Directive 2001/29, that would not in any event be decisive.

   Moreover, while it is true that, as is clear from both the title of Directive 2001/29 and recital 7 thereof, the EU legislature brought about only a partial harmonisation of copyright and related rights, that consideration cannot, in itself, be decisive. An international agreement covering an area which has been fully harmonised may affect common rules or alter their scope; that is nevertheless only one of the situations in which the condition in the last limb of Article 3(2) TFEU is met. Likewise, although the Member States have a discretion as regards the implementation of their option to provide for an exception or limitation for the benefit of persons with a disability, that discretion derives from the decision of the EU legislature to grant the Member States that option, within the harmonised legal framework which Directive 2001/29 establishes and which ensures a high and even level of protection for the rights of reproduction, making available to the public and distribution. In that context, Article 5(3)(b) and (4) of Directive 2001/29 does not set a minimum level of protection of copyright and related rights while leaving untouched the Member States’ competence to provide for greater protection of those rights. Rather, it permits the Member States to provide, subject to certain conditions, for an exception or limitation to rights harmonised by the EU legislature. In addition, that option is highly circumscribed by the requirements of EU law.

   (see paras 102, 105-107, 112-115, 117-119, 121, 126, 129, 130)

3.  See the text of the opinion.

   (see para. 108)