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Conceptualising the European Union’s Competence in Copyright – What Can the EU Do?

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The EU Treaties do not grant the EU a specific competence to intervene in the field of copyright. The competence of the EU to act in the field of copyright has so far been primarily based on the need to build an internal market. The problem of attaching the harmonisation of copyright to internal-market needs, however, is that the concept of “internal market” does not give normative guidance regarding the substantive content of EU action. This article aims to conceptualise the competence of the EU in copyright lawmaking. For that purpose, it analyses the EU’s legal basis for action and suggests that certain factors can influence the exercise of its competence. These factors contribute to a clarification of the division of powers between the EU and the Member States, and provide a better definition of how the EU should proceed in its actions. As a result of these factors, the normative guidance absent from the main competence norms can be provided, and a few limits can also be imposed upon EU action.

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  1. Consolidated version of the Treaty on the European Union, OJ C 326 (26 October 2012).

  2. Consolidated version of the Treaty on the Functioning of the European Union, OJ C 326 (26 October 2012).

  3. Article 5(2) TEU.

  4. See Recitals 4 and 5 of the original Computer Programs Directive (Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L 122 (17 May 1991), replaced on codification by Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009, OJ L 111 (5 May 2009)); Recitals 1–3 of the original Rental and Lending Rights Directive (Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property, OJ L 346 (27 November 1992), replaced on codification by Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006, OJ L 376 (27 December 2006)); Recitals 2, 9, 17, 18 and 25 of the original Term of Protection Directive (Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of copyright and certain related rights, OJ L 290 (24 November 1993), replaced on codification by Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006, OJ L 372 (27 December 2006), and amended by Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011, OJ L 265 (11 October 2011)); Recitals 2–4 of the Database Directive (Directive 96/6/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, OJ L 77 (27 March 1996)); Recitals 3, 6, 7, 31, 32, 47 and 56 of the Information Society Directive (Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167 (22 June 2001)); Recitals 9–15 and 23 of the Resale Right Directive (Directive 2001/84/EC of the European Parliament and of the Council of 22 September 2001 on the resale right for the benefit of the author of an original work of art, OJ L 272 (13 October 2001)); Recitals 8, 14 and 25 of the Orphan Works Directive (Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works, OJ L 299 (27 October 2012)). The only directive not using the internal market expressly as a legal basis is the Satellite and Cable Directive (Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, OJ L 24 (6 October 1993)), which had only the freedom to provide services and the right of establishment as its express legal bases. However, as shall be seen in Sect. 2.2, this difference is not material, since the free movement of persons and services are in any case part of the notion of internal market (cf. Art. 26(2) TFEU).

  5. Article 2(1) TFEU.

  6. Article 2(2) TFEU.

  7. Protocol No. 25 to the Treaties, sole Article.

  8. This derives from the principle of supremacy of EU law, which was first established by the CJEU in CJEU case 6/64 (Costa v. Enel), [1964] ECR 585.

  9. Article 2(5) TFEU.

  10. See CJEU Opinion 2/2000, [2001] ECR I-9713, at 23.

  11. See inter alia CJEU case C-42/97 (Parliament v. Council), [1999] ECR I-869, at 39–40; and CJEU case C-491/01 (British American Tobacco), [2002] ECR I-11453, at 94.

  12. Article 167(5) TFEU.

  13. Article 26(2) TFEU.

  14. See CJEU case C-376/98 (Tobacco Advertising I), [2000] ECR I-8419, at 84; and CJEU case C-380/03 (Tobacco Advertising II), [2006] ECR I-11573, at 41.

  15. See Tobacco Advertising I, at 78; and CJEU joined cases C-465/00, C-138/01 and 139/01 (Österreichischer Rundfunk), [2003] ECR I-4989, at 41.

  16. See Tobacco Advertising II, at 41; and CJEU joined cases C-154–155/04 (Alliance for Natural Health), [2005] ECR I-6451, at 29 and 32.

  17. See CJEU case C-58/08 (Vodafone), [2010] ECR I-4999, at 45.

  18. See Tobacco Advertising I, at 84; and Alliance for Natural Health, at 28.

  19. See CJEU case C-217/04 (United Kingdom v. Parliament and Council), [2006] ECR I-3771, at 42.

  20. See CJEU case C-300/89 (Titanium Dioxide), [1991] ECR I-2867, at 15 and 23; Tobacco Advertising I, at 95 and 106; CJEU case C-301/06 (Data Retention), [2009] ECR I-593, at 63. See also Weatherill (2010) et seq.

  21. Tobacco Advertising I, at 106 and 109.

  22. Tobacco Advertising I, at 109.

  23. Data Retention, at 36 and 68.

  24. Vodafone, at 47.

  25. de la Quadra-Salcedo Janini (2006), Weatherill (2004).

  26. See CJEU case 341/87 (EMI Electrola v. Patricia), [1989] ECR 79, and the Explanatory Memorandum to the Proposal for a Council Directive harmonising the term of protection of copyright and certain related rights, at 14–15.

  27. Lohse ( 2011 ).

  28. See, in the field of copyright, the example of the Commission Recommendation on Cross-border Management of Copyright and Related Rights for Online Music, OJ L 276 (21 October 2005). In its Monitoring Report of the Recommendation (7 February 2008, available at: (accessed 1 August 2013), at 8, the Commission states that “the Recommendation seems to have produced an impact on the licensing marketplace and is endorsed by a number of collective rights managers, music publishers and users”. However, doubts have been raised as to whether all Member States will voluntarily adapt the guidelines set in the Recommendation in order to achieve a minimum level of harmonisation, see Guibault and Van Gompel ( 2010 ), pp. 155–165.

  29. In fact, except for the Computer Programs Directive, all the other directives use these two provisions as a legal basis. Even the Resale Right Directive refers indirectly to them in Recital 11: “The objectives of the Community as set out in the Treaty include laying the foundations of an ever closer union among the peoples of Europe, promoting closer relations between the Member States belonging to the Community, and ensuring their economic and social progress by common action to eliminate the barriers which divide Europe. To that end the Treaty provides for the establishment of an internal market which presupposes the abolition of obstacles to the free movement of goods, freedom to provide services and freedom of establishment, and for the introduction of a system ensuring that competition in the common market is not distorted. Harmonisation of Member States’ laws on the resale right contributes to the attainment of these objectives.” (Emphasis added.).

  30. As pointed out in footnote 4 above, there is one exception to this rule: the Satellite and Cable Directive had only the freedom of services and the right of establishment as its express legal bases.

  31. Instituted by Council Regulation (EC) No. 40/94 of 20 December 1993 on the Community trade mark, OJ L 349 (31 December 1994) (amended by Council Regulation (EC) No. 3288/94, OJ L 349 (31 December 1994), and Council Regulation (EC) No. 422/2004 of 19 February 2004, OJ L 70 (9 March 2004)).

  32. Instituted by Council Regulation (EC) No. 6/2002 of 12 December 2001 on Community designs, OJ L 3 (5 January 2002) (amended by Council Regulation (EC) No. 1891/2006 of 18 December 2006, OJ L 386 (29 December 2006)).

  33. The European Commission has referred to an optional unitary copyright title – i.e., one that does not replace national copyrights (see Commission Communication on a Single Market for Intellectual Property Rights (2011), COM (2011) 287 final, 24 May 2011, at 11). Some authors argue that an eventual copyright title should replace national copyrights – see e.g. van Eechoud et al. (2009), pp. 318–321, and arguments presented therein.

  34. See van Eechoud et al. (2009), pp. 318–321, at 317 et seq., Cook and Derclaye ( 2012 ).

  35. Gotzen ( 2012 ).

  36. For the European Copyright Code that was the result of the Wittem Project, see (accessed 1 August 2013).

  37. Hugenholtz ( 2013 ) For a more sceptical view on combining unification with further harmonisation, see Hilty (2012), at 360–361.

  38. CJEU joined cases C-274–295/11 (Spain v. Council) (not yet reported), at 21.

  39. CJEU case C-414/11 (Daiichi) (not yet reported), at 52.

  40. See CJEU case C-306/05 (SGAE), [2006] ECR I-11519, at 35. See also Daiichi at 59.

  41. von Bogdandy and Bast ( 2002 ). See also Art. 7 TFEU: “The Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.”

  42. See Möllers ( 2010 ).

  43. This was also hinted at by the Advocate General in the Tobacco Advertising I case, whose opinion points to the need of functional competences being “influenced by substantive concerns”: “If the condition of having as its object the establishment or functioning of the internal market, or that of addressing national provisions on the taking up or pursuit of activities as service providers, is satisfied, the content of an approximating or coordinating measure – the level of regulation, the type of scheme, etc. – must also, in principle, be influenced by substantive concerns” (at 64).

  44. Lenaerts and van Nuffel ( 2011 ); and Kaczorowska ( 2013 ). See also in particular Art. 267 TFEU, establishing that the CJEU has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and the validity and interpretation of acts of other institutions.

  45. See Pilette and de Poncins (2007).

  46. Dougan ( 2008 ), Azoulai (2007), pp. 71–73, stating that the objectives of the Union have an interpretation function of EU law.

  47. Rosas and Armati (2010), de Vries (2006) et seq, Jarvis ( 2010 ), pp. 30–31.

  48. Pilette and de Poncins (2007), at 302 et seq. The CJEU confirmed that the values of the EU are “the very foundations of the Community legal order”, see CJEU joined cases C-402–415/05 (Kadi), [2008] ECR I-6351, at 304.

  49. For the purposes of this article, the terms “fundamental rights” and “human rights” will be used interchangeably, even though Art. 2 TEU refers only to the latter. This is because, although conceptually different, human rights are, generally speaking, also fundamental rights, see Palombella (2013), at 3. Moreover, the term “fundamental rights” has become more prominent, particularly since the integration of the Charter of Fundamental Rights in EU primary law – see Art. 6 TEU.

  50. See, e.g., CJEU case C-275/06 (Promusicae), [2008] ECR I-271, at 61–68, where the Court advocated that a balance should be struck between the fundamental rights to property, to an effective legal remedy and to protection of personal data, using the principle of proportionality. See also CJEU case C-70/10 (Scarlet Extended) (not yet reported), at 44–53; and CJEU case C-360/10 (SABAM v. Netlog) (not yet reported), at 42–51 (both concerning the fundamental right to property, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information).

  51. Charter of Fundamental Rights of the European Union, OJ C 364 (18 December 2000).

  52. As established by Art. 6(1) TEU.

  53. Article 51(1) of the Charter.

  54. Craig ( 2010 ), seems to endorse a similar position by holding that the Charter “would not necessarily preclude attaching human rights considerations based on the Charter to action founded on other competences”.

  55. See in particular the Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights on 25 June 1993, available at: (accessed 1 August 2013), point 5: “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”

  56. See CJEU case 4/73 (Nold), [1974] ECR 491, at 14; and CJEU case 44/79 (Hauer), [1979] ECR 3727, at 32.

  57. See, inter alia, CJEU case C-280/93 (Germany v. Council), [1994] ECR I-4973, at 78, and case law cited therein; CJEU case C-112/00 (Schmidberger), [2003] ECR I-5659, at 80. However, case law has also shown that a right can be deprived of much of its economic significance without there being an encroachment upon its essence, particularly in relation to the right to property, see Tridimas ( 2006 ) 317 et seq. See also in particular CJEU case 59/83 (Biovilac), [1984] ECR 4057, at 21–22, where the applicant argued that certain measures adopted by the Commission amounted to unlawful expropriation because they reduced the profitability of its business to such an extent that it endangered its existence. The Court disagreed, holding that the measures did not deprive the applicant of its property or of the freedom to use it and therefore did not encroach on the substance of those rights, particularly where the detrimental effect at stake was merely an indirect consequence of a policy with aims of general public interest.

  58. See Kadi, at 360.

  59. As underlined by the CJEU in case 294/83 (Les Verts), [1986] ECR 1339, at 23.

  60. See von Bogdandy ( 2010 ), Tamanaha ( 2009 ) 3 et seq., Crosby (1991), 463 et seq., Pech (2010).

  61. Psychogiopoulou ( 2008 ).

  62. Barber (2005).

  63. Barber (2005).

  64. Article 2 of Protocol No. 2 to the Treaties on the application of the principles of subsidiarity and proportionality.

  65. There is also an ex-post supervision, to be performed by the CJEU (Art. 8 of the Protocol). However, that procedure is hardly innovative, as it should take place under the general rule of Art. 263 TFEU, concerning the review of legality of legislative acts.

  66. See P. Craig, op.cit., at 47–48; and Louis ( 2008) et seq.

  67. See inter alia CJEU case C-331/88 (Fedesa), [1990] ECR I-4023, at 13; and CJEU case C-210/00 (Käserei Champignon Hofmeister), [2002] ECR I-6453, at 59–67. For a detailed explanation of the factors, see Groussot ( 2006 ), pp. 146–152, Jans ( 2000 ).

  68. See Jans ( 2000 ), at 240 et seq.; Groussot ( 2006 ), at 146 et seq.; Craig and de Búrca ( 2003 ).

  69. de Vries ( 2006 ), p. 13, at 18 et seq.

  70. First Report on the Consideration of Cultural Aspects in European Community Action (COM (96) 160 final, 17 April 1996), at 2: “this provision gives expression to the European Community’s obligation to consider the cultural objective in all aspects of its activity”.

  71. Resolution on the First Report of the Commission on the Consideration of Cultural Aspects in the European Community Aspects, OJ C 55 (24 February 1997), at 2: “the taking into account of cultural aspects will in future be a requirement imposed on the European Community and that compliance with this requirement involves the establishment of a clause whereby all Community acts and actions which may have a cultural impact must be compatible with cultural objectives”.

  72. de Vries ( 2006 ), at 23.

  73. Not least because the EU only has supporting competences in the field of culture, see Arts. 6(c) and 167(2) TFEU.

  74. As noted also by Shore ( 2001 ).

  75. See Commission Communication on a European Agenda for Culture in a Globalizing World (COM (2007) 242 final, 10 May 2007), at 8: “In order to simultaneously bring our common heritage to the fore and recognise the contribution of all cultures present in our societies, cultural diversity needs to be nurtured in a context of openness and exchanges between different cultures. As we live in increasingly multicultural societies, we need therefore to promote intercultural dialogue and intercultural competences. These are also essential in the context of a global economy with regard to enhancing the employability, adaptability and mobility of artists and workers in the cultural sector as well as the mobility of works of art. As citizens are among the main beneficiaries of developing cultural diversity, we need to facilitate their access to culture and cultural works.”

  76. Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Paris 20 October 2005, available at: (accessed 1 August 2013).

  77. Article 38 of the Charter.

  78. Benkler (2000) et seq, Loos et al. ( 2013 ).

  79. See Psychogiopoulou ( 2008 ), at 199–200.

  80. Nicolaides ( 1993 ), Buiges and Sapir ( 1993 ), pp. 21–22. Contra, arguing for a broader EU industrial policy that also includes more active policies, Sauter ( 1997 ), 66 et seq.

  81. Darmer ( 2000 ).

  82. Buiges and Sapir ( 1993 ), at 24.

  83. See Commission Communication on industrial policy in an open and competitive environment – guidelines for a Community approach (COM (90) 556 final, 16 November 1990), at 1.

  84. Sauter ( 1997 ), at 96–97, Darmer ( 2000 ), at 20.

  85. See Barents and Slot ( 2008 ), pp. 1255–1258, highlighting this compromise character of Art. 173 TFEU (ex Art. 157 EC Treaty). Along similar lines, see Sauter ( 1997 ), at 93–97.

  86. Article 173(1) TFEU.

  87. Govaere ( 2009/2010 ) et seq., referring to the Commission Communication on a Single Market for Citizens (COM (2007) 60 final, 21 February 2007).

  88. Maduro ( 1998 ), pp. 16–25, Tridimas ( 2012 ). See also I. Govaere ( 1996 ), pointing out that, in the field of intellectual property, the Court “has gradually elaborated general principles which give guidance on the extent to which Community rules (…) impinge upon national intellectual property rights to safeguard the objectives of the E.C. Treaty”.

  89. CJEU case 26/62 (Van Gend & Loos), [1963] ECR 1.

  90. Bebr ( 1981 ), Tridimas (2006), at 18.

  91. Tridimas (2012), at 310.

  92. On the prominent role of the CJEU in the active development of EU law, see inter alia Deelen and Deelen (1996) et seq, Meij ( 2011 ), Stone Sweet (2011).

  93. The terms positive and negative integration were first coined by Tinbergen, who defined them as follows: negative integration would be the “measures consisting of the abolition of a number of impediments to the proper operation of an integrated area”; positive integration could be defined as “the creation of new institutions and their instruments or the modification of existing instruments” (Tinbergen ( 1965)). In what concerns subsequent literature on this subject, see inter alia Scharpf ( 1996 ), Steiner et al. ( 2006 ), Lohse ( 2011 ), at 293 et seq.

  94. See e.g. Weatherill (2010), at 484; Kurcz ( 2001 ) et seq, De Vries ( 2006 ), at 319; Jarvis ( 1998 ).

  95. The Satellite and Cable Directive is an offspring of CJEU case 62/79 (Coditel I), [1980] ECR 881 (see the Explanatory Memorandum to the Proposal for a Council Directive on the coordination of certain rules concerning copyright and neighbouring rights applicable to satellite broadcasting and cable retransmission, para. 61); the Rental and Lending Rights Directive was partially based on CJEU case 158/86 (Warner), [1988] ECR 2605 (Explanatory Memorandum to the Proposal for a Council Directive on rental right, lending right, and on certain rights related to copyright, at 26–27); and the Term of Protection Directive was also a partial result of EMI Electrola v. Patricia (Explanatory Memorandum to the Proposal for a Council Directive harmonising the term of protection of copyright and certain related rights, at 14–15).


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Correspondence to Ana Ramalho.

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This article is based on a project funded by the Intellectual Property Office (IPO) of the United Kingdom. The opinions expressed herein are solely those of the author, not the UK Government, IPO or any IPO staff.

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Ramalho, A. Conceptualising the European Union’s Competence in Copyright – What Can the EU Do?. IIC 45, 178–200 (2014).

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