OPINION 3/15

23.The Commission’s principal submission is that conclusion of the Marrakesh Treaty should be based on both Article114 TFEU (because of the harmonising effect that the treaty will have on the laws of the Member States) and Article207 TFEU (so as to cover the exchange of accessible format copies with third countries). In that case the competence of the European Union to conclude the Marrakesh Treaty would be exclusive by virtue of Article3(1) and (2) TFEU.

24.In the alternative, the Commission submits that conclusion of the Marrakesh Treaty must be based on Article207 TFEU alone and that the European Union has exclusive competence in that regard pursuant to Article3(1) TFEU.

Article3(1) TFEU

25.The Commission recalls that under Article3(1) TFEU the European Union has exclusive competence for matters within the scope of the common commercial policy, including the commercial aspects of intellectual property.

26.It submits that the latter concept covers the entirety of the Marrakesh Treaty, or at least Articles5 and 6 and those aspects of the other articles of that treaty which relate to them.

27.In that regard, the Commission, referring to the judgment of 18July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland (C‑414/11, EU:C:2013:520), submits that only rules adopted by the European Union which have a specific link to international trade may be covered by the concept of ‘commercial aspects of intellectual property’ as referred to in Article207 TFEU.

28.That concept does not, in the Commission’s view, cover only agreements related to the World Trade Organisation (WTO). Indeed, it follows from the Court’s case-law that an international agreement entailing harmonisation of intellectual property protection regimes must, generally speaking, be related to the common commercial policy when the agreement is intended to promote trade.

29.In the present case, the Commission argues that, although Articles4 to 6 and 9 of the Marrakesh Treaty envisage approximation of the laws of the Contracting Parties, the primary objective of that treaty is not to harmonise those laws but rather to facilitate, through that harmonisation, the cross-border exchange of accessible format copies, including between the European Union and third countries, as the preamble and Article9 of the treaty make clear. The setting of those international standards in the field of intellectual property thus appears to be merely a means of achieving the objective of the liberalisation of international trade.

30.The fact that the Marrakesh Treaty applies only to accessible format copies made on a non-profit basis is irrelevant, given, first, that this does not rule out the possibility of covering the costs incurred and, secondly, that Article207 TFEU also applies when goods or services are supplied on a non-profit basis. The Commission submits that it is relevant in this respect that the exception or limitation provided for in Article5(3)(b) of Directive 2001/29 also applies to activities which are not for profit. Moreover, the system established by the Marrakesh Treaty is such as to interfere with commercial activities that involve the making available and exchange of accessible format copies.

31.Similarly, in the Commission’s view, the argument that the ultimate objective of the Marrakesh Treaty is a social or humanitarian one cannot succeed, since it follows from Opinion 1/78 (International agreement on natural rubber), of 4October 1979 (EU:C:1979:224), and from the judgment of 17October 1995, Werner (C‑70/94, EU:C:1995:328), that the common commercial policy may not be the subject of a restrictive interpretation that excludes measures having specific objectives.

Article3(2) TFEU

32.The Commission maintains that, were a legal basis other than Article207 TFEU to be considered appropriate for the purpose of approving, in whole or in part, the Marrakesh Treaty, the European Union would have exclusive competence under Article3(2) TFEU, which provides, inter alia, that the Union has exclusive competence for the conclusion of an international agreement in so far as that conclusion may affect common EU rules or alter their scope.

33.Whilst maintaining that Article114 TFEU, rather than Article19 TFEU, is the correct legal basis, the Commission asserts that determination of the legal basis is, in any event, secondary since it is irrelevant in ascertaining whether an international agreement affects common EU rules.

34.The Commission notes that copyright and related rights, with which the Marrakesh Treaty is concerned, and, in particular, the exceptions and limitations to those rights have been harmonised at EU level by Directive 2001/29.

35.It is true that the Member States are free to choose whether or not to apply the exceptions and limitations provided for by that directive. The Commission submits, however, that the Member States’ discretion in that regard is limited given that, first, the list of exceptions and limitations set out in Article5 of the directive is exhaustive and, secondly, the Member States may implement those exceptions and limitations only within the limits imposed by EU law.

36.It follows, in the Commission’s submission, that the Marrakesh Treaty does indeed derogate from copyright and related rights which have been fully harmonised by Directive 2001/29, by providing a mandatory exception or limitation for uses directly related to the disability, while Article5(3)(b) of the directive provides for optional exceptions or limitations in that area.

37.In that context, when the Member States decide to make provision for such an exception or limitation, they are not exercising a ‘retained’ competence but are making use of an option ‘granted/authorised’ by EU law and will do so in compliance with the framework set out by EU law. According to the Commission, the mere fact that the Member States have some freedom to adapt certain aspects of the law in a given area does not mean that the European Union’s external competence in that area is not exclusive.

38.The Commission also notes that the implementation of the exceptions or limitations provided for by the Marrakesh Treaty is, under Article11 thereof and Article5(5) of Directive 2001/29, subject to compliance with the general obligation not to apply such exceptions or limitations in a way which is prejudicial to the legitimate interests of the rightholder or which conflicts with a normal exploitation of his work. That obligation derives from international agreements that fall within the European Union’s exclusive competence.

39.Finally, the Commission considers that Articles5 and 6 of the Marrakesh Treaty are intended to regulate trade between Member States and that they would affect the free movement of goods. Likewise, Article7 of that treaty would have an impact on Article6 of Directive 2001/29, which relates to legal protection for technological measures used by rightholders.