Case A-3/15, The Marrakesh Treaty – disability, copyright and exclusive competence for the EU?

The European Commission has asked the CJEU for a legal opinion on whether the EU has exclusive competence to conclude the Marrakesh Treaty, which aims to help people with reading difficulties access published works.

Background
On 21 October 2014, the EU Commission published its ‘Proposal for a Council Decision on the conclusion, on behalf of the European Union, of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled’ (COM/2014/0638 final – 2014/0297 (NLE)).

At the time when it was published, the EU Commission’s proposed Council Decision still needed the approval of the European Parliament. However, the proposed Decision already made clear:

(5) The Marrakesh Treaty establishes a set of international rules which ensure that there are limitations or exceptions to copyright at national level for the benefit of people who are blind, visually impaired, or otherwise print–disabled. The relevant copyright provisions have been harmonised by Union law, as they affect the functioning of the internal market. The Treaty will also enable the cross-border exchange of copies of published works that have been made in an accessible format under limitations or exceptions to copyright, and therefore also falls within the area of commercial policy. The Treaty will facilitate access to published works for its beneficiaries in and outside the European Union.

The proposed Council Decision also explained:

2.2 The legal bases
In light of the Treaty’s subject matter, and as with Council Decision 2014/221/EU authorising the signature of the Treaty, the Council’s decision on the conclusion of the Treaty should be based on Articles 114, 207, and 218(6)(a)(v) of the Treaty on the Functioning of the European Union (TFEU).

The Treaty’s central provisions (Articles 5, 6 and 9) aim to ensure the cross-border exchange of accessible-format copies between the Contracting Parties of the Treaty, including between the EU and third countries. This exchange falls under the TFEU provision on the common commercial policy.

Authors’ rights affected by the exceptions and limitations required by the Treaty (the right of reproduction, the right of distribution and the right of communication to the public including the right of making available) were harmonised at EU level by Articles 2-4 of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society[…]. An exhaustive list of exceptions or limitations to those rights is set out in Article 5(2) and 5(3) of this Directive. Recital 32 makes it clear that Member States cannot introduce different or additional exceptions to these rights in their national law. The exceptions or limitations should be exercised in accordance with Article 5(5) (the ‘three-step test’), also emphasised in recital 44.

Article 5(3)(b) of Directive 2001/29/EC provides for an optional exception or limitation to authors’ rights for uses, for the benefit of people with any disability, which are directly related to the disability and are of a non-commercial nature, to the extent required by the specific disability. Unlike the Treaty, this Article is not limited to any particular disability and Member States are free to choose whether they implement this limitation or exception. It is settled case-law that any discretion which Member States enjoy when they make use of any of the exceptions or limitations under Article 5 of Directive 2001/29/EC must be exercised within the limits imposed by EU law [See e.g. case C-145/10, Eva Maria Painer, paragraph 104.].

Finally, Article 6 of Directive 2001/29/EC provides comprehensive legal protection for technological measures used by right holders and Article 6(4) provides that Member States must ensure that beneficiaries of certain exceptions or limitations benefit from those exceptions where technological protection measures are in place, in the absence of voluntary agreements. Articles 3, 4, 7, 10 and 11 of the Treaty affect these provisions of EU law.

As a result, it is considered that:
a) the cross-border exchange of accessible-format copies with third countries is a predominant element of the Treaty, therefore its relevant articles fall under the common commercial policy (Article 207 TFEU); and

b) the articles of the Treaty on mandatory exceptions or limitations fall within the scope of EU law, affect or alter the scope of the common rules, namely those in Directive 2001/29/EC and in any event are within an area which is already largely covered by EU rules (Article 114 TFEU)[C-114/12 Commission v. Council judgment of 4 September 2014.].

The EU Commission has now asked the CJEU for its legal opinion.

Question Referred
According to the Curia website, the EU Commission has asked:

Does the European Union have exclusive competence to conclude the Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired, or otherwise print disabled?