OPINION 3/15

Article3(1) TFEU

60.In view of its purpose and content, it is clear that the Marrakesh Treaty does not concern the first four areas referred to in Article3(1) TFEU.However, consideration must be given to whether that treaty relates, in whole or in part, to the common commercial policy, defined in Article207 TFEU, which, under Article3(1)(e) TFEU, falls within the European Union’s exclusive competence.

61.According to the Court’s settled case-law, the mere fact that an EU act is liable to have implications for international trade is not enough for it to be concluded that the act must be classified as falling within the common commercial policy. On the other hand, an EU act falls within that policy 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 (judgments of 18July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph51, and of 22October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraph57).

62.In order to determine whether the Marrakesh Treaty falls within the common commercial policy, it is necessary to examine both the purpose of that treaty and its content.

63.As regards, first of all, the purpose of the Marrakesh Treaty, that treaty’s very title makes clear that it is intended to facilitate access to published works for beneficiary persons, namely persons who are blind, visually impaired or otherwise print disabled.

64.The desire of the Contracting Parties to harmonise exceptions and limitations to copyright, and to facilitate the circulation of accessible format copies in order to make published works more readily accessible to beneficiary persons and thus overcome the current barriers to such access, is confirmed by, inter alia, recitals 7, 8 and 12 in the preamble to the Marrakesh Treaty.

65.It is also clear from recitals 1, 2 and 4 in that preamble that the establishment of the enhanced legal framework at international level, for which the Marrakesh Treaty provides, must serve, ultimately, to ensure observance of the principles (proclaimed in the UN Convention) of non-discrimination, equal opportunity, accessibility and the full and effective participation and inclusion in society of persons with a disability, in particular by combating the barriers to such persons’ complete development, their freedom of expression and their enjoyment of the right to education.

66.It is true that recitals 4 and 7 in the preamble to the Marrakesh Treaty allude to the circulation and cross-border exchange of accessible format copies.

67.However, it is not stated in those recitals that that circulation and exchange are commercial in nature and they are referred to only as a means of improving the access of beneficiary persons to accessible format copies and of avoiding duplication of the efforts made by Contracting Parties for that purpose.

68.Furthermore, whilst it follows from recitals 3, 9, 10 and 12 in the preamble to the Marrakesh Treaty that the Contracting Parties recognise the importance of copyright protection in general and of the international copyright system in particular, the wording of the preamble does not indicate that that treaty is intended to strengthen either that protection or that system.

69.Nor does it appear from the provisions of the Marrakesh Treaty that it pursues objectives other than those mentioned in its title and preamble.

70.Consequently, it must be held that 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.

71.Concerning, next, the content of the Marrakesh Treaty, the latter makes clear that the Contracting Parties must use two separate and complementary instruments in order to achieve its objectives.

72.First, Article4(1) of that 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. The other paragraphs of Article4 stipulate further the way in which Contracting Parties may give effect to that obligation in their national laws, whilst leaving them a broad discretion in that regard.

73.Secondly, Articles5 and 6 of the Marrakesh Treaty impose certain obligations relating to the cross-border exchange of accessible format copies.

74.More specifically, Article5(1) of that treaty stipulates that Contracting Parties are to provide that if an accessible format copy is made under a limitation or exception, or by virtue of the operation of law, that copy may be distributed or made available by an authorised entity to a beneficiary person or an authorised entity in another Contracting Party. The other paragraphs of Article5 stipulate further the way in which Contracting Parties may give effect to that obligation in their national laws, whilst leaving them a broad discretion in that regard.

75.Article6 of the Marrakesh Treaty specifies that, to the extent that the national law of a Contracting Party would permit a beneficiary person, someone acting on his or her behalf, or an authorised entity, to make an accessible format copy, that law must also permit them to import an accessible format copy for the benefit of beneficiary persons, without the authorisation of the rightholder.

76.Articles5 and 6 of that treaty are supplemented by Article9, which requires Contracting Parties to cooperate in order to promote the cross-border exchange of accessible format copies.

77.Those elements form the basis on which it must be determined whether the Marrakesh Treaty is, in whole or in part, within the sphere of the common commercial policy.

78.In that regard, it is true, in the first place, that the rules adopted by the European Union in the field of intellectual property which have a specific link to international trade are capable of falling within the concept of ‘commercial aspects of intellectual property’, as referred to in Article207(1) TFEU, and hence within the field of the common commercial policy (see, to that effect, judgment of 18July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph52).

79.The Court has thus held that certain international rules containing provisions that must be applied to each of the principal categories of intellectual property rights have a specific link with international trade, since those rules operate within the context of the liberalisation of that trade in the sense that they are an integral part of the WTO system and are intended to facilitate international trade by reducing distortions of it (see, to that effect, judgment of 18July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraphs53 and 57 to 60).

80.Moreover, the Court has held that rules establishing adequate legal protection for services based on, or consisting in, conditional access have a specific link with international trade and thus fall within the common commercial policy. The Court relied in that regard on the fact that the objective of those rules was to promote international trade in those services rather than to improve the functioning of the internal market (see, to that effect, judgment of 22October 2013, Commission v Council, C‑137/12, EU:C:2013:675, paragraphs64, 65 and 67).

81.However, contrary to the Commission’s argument, a comparable line of reasoning cannot be applied to the rules of the Marrakesh Treaty relating to the introduction of an exception or limitation to the rights of reproduction, distribution and making available to the public.

82.Indeed, as is clear from paragraphs63 to 70 of this Opinion, the purpose of the Marrakesh Treaty is to improve the position of beneficiary persons by facilitating, through various means, the access of such persons to published works; it is not to promote, facilitate or govern international trade in accessible format copies.

83.As regards more particularly 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.

84.Furthermore, Article4 of the Marrakesh Treaty is not capable of bringing about an approximation of national laws serving to facilitate international trade, given that the Contracting Parties have a broad discretion with regard to the implementation of that article and that it follows from Article12 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 said treaty.

85.Moreover, the Commission’s 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 Article207 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.

86.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 Article207 TFEU.

87.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.

88.However, it follows from the Court’s case-law that the objective of such rules must be taken into consideration for the purpose of assessing their connection with the common commercial policy (see, to that effect, Opinion 2/00 (Cartagena Protocol on Biosafety), of 6December 2001, EU:C:2001:664, paragraphs35 to 37, and judgment of 8September 2009, Commission v Parliament and Council, C‑411/06, EU:C:2009:518, paragraphs49 to 54 as well as 71 and 72).

89.In the light of the reasoning in paragraphs63 to 70 of this Opinion and in the absence of any indication that Articles5, 6 and 9 of the Marrakesh Treaty pursue a different objective from that of the treaty as a whole, the Court finds that those articles 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.

90.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.

91.The point should also be made that, in view of its characteristics, the cross-border exchange for which the Marrakesh Treaty provides cannot be equated with international trade for commercial purposes (see, by analogy, Opinion 2/00 (Cartagena Protocol on Biosafety), of 6December 2001, EU:C:2001:664, paragraph38, and judgment of 8September 2009, Commission v Parliament and Council, C‑411/06, EU:C:2009:518, paragraph69).

92.Indeed, the obligation laid down in Article5(1) of the Marrakesh Treaty to permit the export of accessible format copies covers only exports by an authorised entity. Article9 of that treaty confirms that the mechanism thus put in place is not intended to promote, facilitate or govern, generally, all exchanges of accessible format copies, but rather those exchanges that take place between authorised entities.

93.It follows from Article2(c) of the Marrakesh Treaty that those entities must be authorised or recognised by their government, must act on a non-profit basis and provide their services solely to beneficiary persons. Therefore, whilst it remains possible under Article4(5) of that treaty that the exports governed by Article5 thereof may be subject to remuneration, such remuneration may be envisaged only within the limits imposed by the fact that the exporter’s activities are undertaken on a non-profit basis.

94.Similarly, Article6 of the Marrakesh Treaty requires Contracting Parties to authorise imports only in so far as those imports are made (i) by a beneficiary person, acting directly or indirectly, or (ii) by an authorised entity.

95.In addition, it is made quite clear in Article5(1) and Article6 of the Marrakesh Treaty that only exports and imports which are intended for beneficiary persons, through an authorised entity if need be, are covered by those provisions. Article2(c) and Article5(2) and (4) of that treaty establish, in addition, mechanisms designed to ensure that only beneficiary persons will obtain accessible format copies exchanged in that way.

96.Moreover, it is only copies that have been made under a limitation or exception, or by virtue of the operation of law, which constitute the accessible format copies whose export is governed by Article5(1) of the Marrakesh Treaty. Article6 of that treaty is limited to providing that the importation of accessible format copies into the territory of a Contracting Party must be permitted where the law of that Contracting Party permits the person or entity concerned to make such copies.

97.It is thus apparent not only that the cross-border exchange promoted by the Marrakesh Treaty is outside the normal framework of international trade but also that the international trade in accessible format copies which might be engaged in by ordinary operators for commercial purposes, or simply outside the framework of exceptions or limitations for beneficiary persons, is not included in the special scheme established by that treaty.

98.Moreover, Articles1 and 11 of the Marrakesh Treaty require compliance with obligations arising under other international treaties, which implies that that scheme is not intended to derogate from the international rules governing international trade in literary and artistic works.

99.In view of those various characteristics, the scheme introduced by the Marrakesh Treaty must thus be distinguished from the schemes falling within the ambit of the common commercial policy which were examined by the Court in Opinion 1/78 (International agreement on natural rubber), of 4October 1979 (EU:C:1979:224), and in the judgments of 17October 1995, Werner (C‑70/94, EU:C:1995:328), of 10January 2006, Commission v Council (C‑94/03, EU:C:2006:2), and of 12December 2002, Commission v Council (C‑281/01, EU:C:2002:761), which, whilst they did not pursue exclusively commercial aims, were, however, based on the adoption of measures of a commercial nature.

100.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, by analogy, Opinion 2/00 (Cartagena Protocol on Biosafety), of 6December 2001, EU:C:2001:664, paragraph40).

101.It must therefore be held that the conclusion of the Marrakesh Treaty does not fall within the common commercial policy defined in Article207 TFEU and, consequently, that the European Union does not have exclusive competence under Article3(1)(e) TFEU to conclude that treaty.

Article3(2) TFEU

102.Pursuant to Article3(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.

103.The conclusion of the Marrakesh Treaty is not provided for in any legislative act of the European Union and its conclusion is not necessary to enable the Union to exercise its internal competence.

104.Consequently, only the case mentioned in the last limb of Article3(2) TFEU is relevant here: that case concerns a situation in which the conclusion of an international agreement ‘may affect common rules or alter their scope’.

105.In that regard, the Court has held that 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 (Opinion 1/13 (Accession of third States to the Hague Convention), of 14October 2014, EU:C:2014:2303, paragraph71, and judgment of 26November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph29).

106.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 (Opinion 1/13 (Accession of third States to the Hague Convention), of 14October 2014, EU:C:2014:2303, paragraph72, and judgment of 26November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph30).

107.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 (see, to that effect, Opinion 1/13 (Accession of third States to the Hague Convention), of 14October 2014, EU:C:2014:2303, paragraph73, and judgment of 26November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph31).

108.That said, since the EU is vested only with conferred powers, any competence, especially where it is exclusive, must have its basis in conclusions drawn from a comprehensive and detailed analysis of the relationship between the international agreement envisaged and the EU law in force. That analysis must take into account the areas covered, respectively, by the rules of EU law and by the provisions of the agreement envisaged, their foreseeable future development and the nature and content of those rules and those provisions, in order to determine whether the agreement is capable of undermining the uniform and consistent application of the EU rules and the proper functioning of the system which they establish (Opinion 1/13 (Accession of third States to the Hague Convention), of 14October 2014, EU:C:2014:2303, paragraph74, and judgment of 26November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraph33).

109.It is necessary to recall in this regard that –– as has been made clear in paragraphs71 to 76 of this Opinion –– the Marrakesh Treaty provides that the Contracting Parties must, in order to achieve that treaty’s objectives, introduce two separate and complementary instruments, namely (i) 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 and (ii) import and export arrangements to foster certain types of cross-border exchange of accessible format copies.

110.Articles2 to 4 of Directive 2001/29 confer on authors the exclusive right to authorise or prohibit the reproduction, communication to the public and distribution of works.

111.Furthermore, Article5(3)(b) of Directive 2001/29 specifies that Member States may opt to provide for an exception or limitation to the rights of reproduction and communication to the public in respect of ‘uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability’. It follows from Article5(4) of the directive that Member States may also provide for an exception or limitation to the right of distribution to the extent that such an exception or limitation is justified by the purpose of the act of reproduction authorised under Article5(3)(b) of the directive.

112.It follows that the exception or limitation provided for by the Marrakesh Treaty will have to be implemented within the field harmonised by Directive 2001/29. 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.

113.Although a number of the governments that have submitted observations to the Court have maintained in this connection that the obligations laid down by the Marrakesh Treaty could be implemented in a manner that is compatible with Directive 2001/29, it should be observed that, according to the Court’s settled case-law, 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 (see, to that effect, judgment of 4September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraphs70 and 71, and Opinion 1/13 (Accession of third States to the Hague Convention), of 14October 2014, EU:C:2014:2303, paragraph86).

114.Accordingly, even if it were established that Article11 of the Marrakesh Treaty lays down a comparable obligation to the obligation arising under Article5(5) of Directive 2001/29, or that the conditions laid down in Articles4 to 6 of that treaty are not, as such, incompatible with the conditions set out in Article5(3)(b) and (4) of Directive 2001/29, that would not in any event be decisive.

115.In addition, it must indeed be noted –– as the governments that have submitted observations to the Court have emphasised –– that it is clear from both the title of Directive 2001/29 and recital 7 thereof 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 (see, to that effect, judgments of 5March 2015, Copydan Båndkopi, C‑463/12, EU:C:2015:144, paragraph88, and of 26March 2015, C More Entertainment, C‑279/13, EU:C:2015:199, paragraph29).

116.As regards more particularly the exceptions and limitations to those rights, recital 31 of Directive 2001/29 states that the degree of harmonisation of those exceptions and limitations should be based on their impact on the smooth functioning of the internal market. Thus, for example, the EU legislature did not fully harmonise, in Article5(3)(b) and (4) of the directive, the exceptions and limitations for the benefit of persons with a disability.

117.However, that consideration cannot, in itself, be decisive.

118.Although it follows from the Court’s case-law that an international agreement covering an area which has been fully harmonised may affect common rules or alter their scope (see, to that effect, Opinion 1/94 (Agreements annexed to the WTO Agreement), of 15November 1994, EU:C:1994:384, paragraph96, and judgment of 5November 2002, Commission v Denmark, C‑467/98, EU:C:2002:625, paragraph84), that is nevertheless only one of the situations in which the condition in the last limb of Article3(2) TFEU is met (see, to that effect, Opinion 1/03 (New Lugano Convention), of 7February 2006, EU:C:2006:81, paragraph121).

119.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 (see, to that effect, judgments of 26April 2012, DR and TV2 Danmark, C‑510/10, EU:C:2012:244, paragraph32, and of 4September 2014, Commission v Council, C‑114/12, EU:C:2014:2151, paragraph79).

120.Article5(3)(b) and (4) of Directive 2001/29 do not concern a situation comparable to that referred to in paragraphs18 and 21 of Opinion 2/91 (ILO Convention No170), of 19March 1993 (EU:C:1993:106), in which the Court held that the European Union did not have exclusive competence because both the provisions of EU law and those of the international convention in question laid down minimum requirements.

121.Those provisions of Directive 2001/29 do 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, they introduce a derogation from the rights harmonised by the EU legislature, permitting the Member States to provide, subject to certain conditions, for an exception or limitation to those rights. Accordingly, a Member State that makes use of the option granted by EU law will ultimately afford those rights less protection than that which will normally arise from the harmonised level of protection established in Articles2 to 4 of the directive.

122.It must be added in that regard that the Member States’ discretion has to be exercised within the limits imposed by EU law (see, by analogy, judgment of 1December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph104), which means that the 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 (see, by analogy, judgment of 26April 2012, DR and TV2 Danmark, C‑510/10, EU:C:2012:244, paragraph36).

123.In particular, Member States may provide, in their law, for an exception or limitation for persons with a disability, but may do so only if they comply with all the conditions laid down in Article5(3)(b) of Directive 2001/29, that is to say, the exception or limitation must cover only uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability (see, to that effect, judgment of 27February 2014, OSA, C‑351/12, EU:C:2014:110, paragraph39), conditions which, moreover, are not included in Articles4 to 6 of the Marrakesh Treaty.

124.Furthermore, the discretion enjoyed by Member States in implementing an exception or limitation for persons with a disability cannot be used in such a way as to compromise the objectives of Directive 2001/29 which relate, as stated in recitals 1 and 9 thereof, to the establishment of a high level of protection for authors and to the smooth functioning of the internal market (see, by analogy, judgments of 1December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph107, and of 10April 2014, ACI Adam and Others, C‑435/12, EU:C:2014:254, paragraph34).

125.That discretion is also limited by Article5(5) of Directive 2001/29, which makes the introduction of the exception or limitation under Article5(3)(b) of the directive subject to three conditions, namely that the exception or limitation may be applied only in certain special cases, that it does not conflict with a normal exploitation of the work and that it does not unreasonably prejudice the legitimate interests of the copyright holder (see, by analogy, judgments of 16July 2009, Infopaq International, C‑5/08, EU:C:2009:465, paragraph58, and of 1December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph110).

126.In view of all those matters, it is apparent that whilst the Member States have the option of implementing, for the benefit of persons with a disability, an exception or limitation to the harmonised rules set out in Articles2 to 4 of Directive 2001/29, that option is granted by the EU legislature and is highly circumscribed by the requirements of EU law described in paragraphs123 to 125 of this Opinion.

127.It is important to point out in this regard that, whilst Article5(3)(b) of Directive 2001/29 provides only for an option allowing the Member States to introduce an exception or limitation for beneficiary persons, Article4 of the Marrakesh Treaty lays down an obligation to introduce such an exception or limitation.

128.Consequently, the conclusion of the Marrakesh Treaty would mean that the various constraints and requirements imposed by EU law which are mentioned in paragraphs 123 to 125 of this Opinion will apply to all the Member States, which would henceforth be required to provide for such an exception or limitation under Article4 of that treaty.

129.Accordingly, the body of obligations laid down by the Marrakesh Treaty falls within an area that is already covered to a large extent by common EU rules and the conclusion of that treaty may thus affect those rules or alter their scope.

130.It follows from the foregoing considerations that the conclusion of the Marrakesh Treaty falls within the exclusive competence of the European Union.

Consequently, the Court (Grand Chamber) gives the following Opinion:

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.

Delivered in open court in Luxembourg on 14February 2017.