OPINION 3/15

Article3(1) TFEU

40.The Czech, French, Italian, Hungarian, Romanian, Finnish and United Kingdom Governments submit that the European Union does not have exclusive competence to conclude the Marrakesh Treaty under Articles3(1) and 207 TFEU.

41.They argue in that regard that it follows from the judgment of 18July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland (C‑414/11, EU:C:2013:520), that only rules with a specific link to international trade can be encompassed by the concept of ‘commercial aspects of intellectual property’ as referred to in Article207 TFEU.For there to be such a link, the subject matter and objectives of the agreement envisaged must correspond to the common commercial policy, as the mere fact that there may be implications for international trade is not sufficient.

42.It is argued that the Marrakesh Treaty does not have as either its subject matter or purpose the liberalisation or promotion of international trade.

43.First, it is said to be clear from the preamble and the enacting terms of the Marrakesh Treaty that its objective is to promote equal opportunities and social inclusion for persons with disabilities. Cross-border exchange merely serves that purpose or, according to the Hungarian Government, is merely an ancillary aim of the Marrakesh Treaty. The French Government considers, moreover, that that treaty also pursues the objective of development cooperation and humanitarian aid. The harmonisation of national laws for which the Marrakesh Treaty provides is thus intended to increase the availability of accessible format copies rather than to promote, facilitate or regulate international trade.

44.Consequently, it is impossible— according to the French, Romanian and United Kingdom Governments— to consider that the Marrakesh Treaty is intended to extend the application of provisions similar to those of EU law in order to promote international trade, as was the case of the provisions at issue in the case that gave rise to the judgment of 22October 2013, Commission v Council (C‑137/12, EU:C:2013:675). On the other hand, the Finnish and United Kingdom Governments submit that Opinion 2/00 (Cartagena Protocol on Biosafety), of 6December 2001 (EU:C:2001:664), and the judgment of 8September 2009, Commission v Parliament and Council (C‑411/06, EU:C:2009:518), are relevant precedents, the Court having held that the agreements in question in those cases, which concerned international trade, were not within the ambit of the common commercial policy on account of the objectives they pursued.

45.Secondly, according to the Czech, French, Italian, Hungarian, Finnish and United Kingdom Governments, the exchanges covered by the Marrakesh Treaty are non-commercial, which means, in accordance with the Court’s case-law, that they are outwith the common commercial policy.

46.Thus, they argue, it follows from Article4(2) of the Marrakesh Treaty that the exception or limitation for which it provides may be applied only on a non-profit basis, either by an authorised entity or by a beneficiary person or someone acting on his or her behalf. In addition, Article4(4) of that treaty enables Contracting Parties to provide for an exception or limitation to copyright only if accessible format copies cannot be obtained for a reasonable price on the market. Similarly, the cross-border exchange of such copies with which the Marrakesh Treaty is concerned may be made only by an authorised entity acting on a non-profit basis.

47.Moreover, according to the French, Hungarian, Romanian, Finnish and United Kingdom Governments, it is also important to note that the Marrakesh Treaty was negotiated in order to fulfil obligations arising under the UN Convention and that the negotiations took place within WIPO, which does not have as its mission the liberalisation and promotion of trade.

48.On the other hand, the Lithuanian Government and the Parliament submit that Articles5, 6 and 9 of the Marrakesh Treaty, and the provisions implementing them, are intended to promote, facilitate or govern cross-border trade and are therefore covered by the common commercial policy, an area within the exclusive competence of the European Union. The United Kingdom Government subscribes, in the alternative, to that conclusion.

Article3(2) TFEU

49.The various governments that have submitted observations to the Court have adopted different stances regarding the appropriate legal basis for concluding the Marrakesh Treaty: the French Government mentions Articles114 and 209 TFEU or, in the alternative, Articles19 and 209 TFEU, the Hungarian Government refers to Articles4 and 114 TFEU, the United Kingdom Government to Article19 TFEU and the Finnish Government to Articles19 and 114 TFEU.

50.Notwithstanding those differences, the Czech, French, Italian, Lithuanian, Romanian, Finnish and United Kingdom Governments take the view that the European Union does not have exclusive competence under Article3(2) TFEU to conclude the Marrakesh Treaty inasmuch as the latter is not capable of affecting common EU rules or of altering their scope.

51.They argue in that regard that it follows from the Court’s case-law that any conclusion concerning competence must be based on a specific analysis of the relationship between the international agreement envisaged and the EU law in force, account being taken of, inter alia, the nature and content of the rules in question.

52.They argue that Directive 2001/29 brought about only minimum harmonisation of certain aspects of copyright and related rights. In particular, the directive did not harmonise the exceptions and limitations to those rights.

53.Thus, so they argue, Article5(3)(b) of Directive 2001/29 merely gives the Member States the option of providing for an exception or limitation to copyright and related rights for the benefit of persons with disabilities. The Member States thus retain their competence, both internally and externally, to render such an exception or limitation mandatory. The French and Romanian Governments submit that that analysis is borne out by the fact that the directive does not lay down the rules for implementing exceptions or limitations to copyright and related rights for the benefit of persons with disabilities. The United Kingdom Government further argues that there is no inconsistency between the Marrakesh Treaty and Directive 2001/29.

54.On that basis, the French, Hungarian and Romanian Governments maintain that it follows from Opinion 1/94 (Agreements annexed to the WTO Agreement), of 15November 1994 (EU:C:1994:384), that the European Union cannot, by means of an international agreement, render mandatory the adoption of measures relating to an exception or limitation to copyright and related rights for the benefit of persons with a disability when the Member States continue to have a choice as to whether to adopt such measures ‘internally’.

55.However, the French Government considers that the situation changed following the Council’s request to the Commission, on 19May 2015, to which the latter subsequently agreed, that the Commission should submit a legislative proposal to introduce, in EU law, the mandatory exception or limitation provided for in Article4 of the Marrakesh Treaty. It maintains that that factor is relevant in view of the Court’s case-law to the effect that, in order to determine whether an area is already covered to a large extent by EU rules, it is necessary to take into account, amongst other matters, the future development of EU law. Consequently, Article4 of the Marrakesh Treaty falls within the exclusive competence of the European Union.

56.That finding does not, in the French Government’s view, call into question the fact that competence is shared in the case of the other provisions of the Marrakesh Treaty, particularly since (i) those provisions are within the areas of development cooperation and humanitarian aid and (ii) Article4(4) TFEU makes clear that the exercise of the European Union’s competence in those areas is not to result in Member States being prevented from exercising their competence in that regard.

57.The Czech, Italian, Hungarian, Romanian, Finnish and United Kingdom Governments, as well as the Parliament and the Council, maintain, on the contrary, that the Council’s request, referred to in paragraph55 of this Opinion, is not sufficient to establish a ‘future development of EU law’ that must be taken into account in determining whether the European Union has exclusive competence in the area concerned by the Marrakesh Treaty.

58.Nonetheless, the Parliament takes the view that the European Union has exclusive competence with regard to Article4 of the Marrakesh Treaty, the Union having in fact exercised its competence in this area through the adoption of Directive 2001/29. The fact that the Member States have some discretion with regard to the implementation of the exceptions and limitations provided for by the directive does not imply that there is a shared competence: that is because of the distinction that must be drawn between exceptions relating to the scope of an EU act and exceptions relating to the rights laid down in such an act.

59.Moreover, the effect of Article4 of the Marrakesh Treaty on the system established by Directive 2001/29 is evident, so the Parliament argues, in so far as that treaty will take away the discretion which the Member States currently enjoy under Article5(3)(b) of the directive.