Child abduction: a further extension of EU exclusive external powers

Steve Peers

It's every parent's worst nightmare: the abduction of their child. If the child is abducted by a stranger, there's obviously a grave threat to the child. But it's far more common for a child to be abducted by a parent who doesn't have custody of him or her, in the context of family law proceedings.

While it's fortunately much less likely that a parent is a threat to a child's welfare, such abductions are still problematic, since they are a breach of court decisions regarding custody. And if the child is taken to another country by the abducting parent, it is far harder for the parent with custodial rights to enforce them. Sometimes, the latter parent doesn't even get to see his or her children for years.

To address this problem, the Hague Conference (an international body) drew up an international treaty, the Hague Convention on the civil aspects of child abduction, back in 1980. All the EU Member States are party to this treaty. In fact, a total of 93 countries have ratified it. According to the latest available statistics, in 2008 the Convention was applied about 2300 times. Two-thirds of the parents taking children were the mothers, and the average age of the abducted children was six. 

Indeed, the very popularity of the Convention was at the heart of a dispute over the EU’s external power regarding it, which was resolved yesterday by the CJEU (Opinion 1/2013). This judgment concerned new States signing up to the Convention, which has an unusual rule on accession: it only applies to new States which ratify it to the extent that the existing signatories individually agree to this.

The EU is not itself a party to the treaty, and it can't be, since the treaty only permits States to be parties. But in the years since the treaty was drawn up, the EU has adopted legislation which addresses child abduction issues (Regulation 2201/2003). So arguably this means that the EU has external competence as regards the subject matter of the Convention, and Member States are only 'trustees' of that power.  In practice, that means that Member States cannot decide unilaterally whether to extend the Convention to new countries or not.

The Commission, believing that this interpretation was correct, proposed in 2011 that the Council adopt eight separate decisions permitting Member States to extend the Convention to third States, including Russia, Albania and Morocco. Most Member States disagreed. So the Commission invoked the special procedure set out in Article 218 TFEU, which allows the CJEU to decide on whether an envisaged international agreement would be in conformity with EU law.

Judgment

The CJEU had to address four arguments against the admissibility of this case.  First of all, the Court ruled that the decision on accession of a new State to the Convention was an 'agreement'. Secondly, it ruled that the impossibility of the EU itself becoming party to the Convention was irrelevant. As it had ruled before, it has jurisdiction under Article 218 TFEU even in 'trusteeship' cases.

Thirdly, the Court ruled that an agreement could still be considered as being 'envisaged' even if a large majority of the Member States in the Council were opposed to it, making its adoption improbable politically. Finally, the Court decided that it was irrelevant that a number of Member States had gone ahead and agreed to extend the Convention to the third States concerned. The possibility that the Commission could have sued those Member States for infringing EU law didn't stop the Commission from invoking the special jurisdiction of Article 218 TFEU.

As for the substance of the case, 19 Member States opposed the Commission view that the EU had external competence in this case. Only the European Parliament, along with Italy, supported the Commission. Nevertheless, the Court agreed with the Commission.

The Court began by noting that the EU has external competence not only when the Treaties expressly provide for it, but also when this is necessary to realise the internal objectives of the EU, even if the Treaties don't make express provision for this. Indeed, the Court stated that Article 216 TFEU now sets out this rule. In this case, the EU competence existed merely because Article 81(3) TFEU gives the EU internal power to adopt legislation on family law matters with cross-border implications.

However, the bigger issue is whether such competence is exclusive, or merely shared with the Member States. On this point, the Court reaffirmed that the EU would enjoy exclusive competence, as set out in its prior case-law and Article 3(2) TFEU, where an international treaty was liable to affect common EU rules or alter their scope. This was the case when the treaty fell within an area which was largely covered by the EU rules.

Applying that law to the facts, the main provisions of the Convention, dealing with return of the child and the right to visit a child, were also the subject of rules in the Regulation. There was a risk that patchwork extension of the treaty to third States by Member States would complicate application of the EU legislation, particularly where a dispute concerned a third State and two Member States, each of which had taken a different view on extending the treaty to the relevant third State. So it followed that the EU had exclusive external competence regarding the extension of the Convention to new countries. 

Comments

The Court’s judgment raises three issues: its impact upon child abduction in practice; the substantive scope of the EU’s external competence generally; and the process of litigating disputes about that competence.

On the first point, fortunately for the children concerned, the dispute regarding the EU’s external competence in this case doesn’t appear to have prevented Member States from extending the Convention to new countries in practice. However, since the new judgment resolves the issue, the Council now needs to move forward quickly to adopt the Commission’s earlier proposals (on family law issues, the Council votes unanimously, after consulting the European Parliament). Also, seven more States have ratified the Convention in the meantime, including Japan and Korea (see the full list of signatories here), so the Commission needs to propose further such measures straight away. A failure to act quickly will run the risk that a parent who has abducted a child to Russia (for example) might try to argue against the enforcement of a ruling issued by a Member State’s court on the return of a child, on the grounds that the Member State’s extension of the Convention to Russia was illegal.

The Court’s ruling also means that any amendment of the Convention in future will also fall within the scope of the EU’s exclusive external competence. This isn’t a purely hypothetical possibility, as there was some contemplation of a protocol to the Convention a few years ago (for the details, see here).  So it’s now clear that Member States will have to act together, or not at all, as regards any amendment to the Convention, and any extension of it to new countries.

As regards the EU’s external competence, there are two issues: the existence and nature of that competence. In fact, this is the first CJEU judgment since the entry into force of the Treaty of Lisbon which touched upon the existence of such competence. The Court’s judgment appears to assume that Article 216 TFEU simply reflects the prior case law; this issue had been debated in literature. And according to the Court, external competence exists where there is an internal legal base and the EU has adopted legislation on the subject in question. The Court didn’t rule on whether the existence of legislation on an issue was necessary before the EU could exercise its external competence. But on the facts of the case, it didn’t have to address that issue.

Moving on to the nature of the EU’s external competence, the Court’s ruling is not very surprising, following the pre-Lisbon judgment on the exclusivity of the EU’s external competence over civil jurisdiction issues (Opinion 1/03), and more recently the broadcasting rightsjudgment, confirming and elaborating a broad approach to finding that EU external competence is exclusive. In fact, EU exclusive competence as regards the child abduction Convention is more self-evident than as regards the planned broadcasters’ rights Convention, given that the two main aspects of the child abduction Convention clearly correspond to provisions of an EU Regulation, which moreover expressly incorporates or supplements some aspects of the Convention.

Finally, as regards the procedural aspects of this case, all four aspects of the Court’s ruling (the definitions of ‘agreement’ and ‘envisaged’, the application to ‘trusteeship’ cases and the relationship with infringement actions) take a broad approach to the scope of its jurisdiction pursuant to Article 218 TFEU. In effect, it’s now clear that all the Commission needs to do in order to trigger the possible use of Article 218 is to make a proposal for an external relations decision by (or on behalf of) the EU to the Council. Even if that proposal is ‘dead on arrival’ in the Council (as in this case), to the extent that Member States ignore the Commission’s proposal and begin ratifying the relevant treaty (or taking other external action) themselves, the Commission can still invoke the Court’s jurisdiction under Article 218. That special jurisdiction only ceases to apply if the Council approves the treaty concerned on the EU’s behalf, and the treaty then binds the EU. This precisely won’t ever be the case if the Council rejects the Commission’s proposal at the outset.

Having said that, the Court’s judgment does appear to draw a distinction between legaland political reasons for rejecting a Commission proposal, stating that in this case, the case was admissible because the Council’s reasons for rejection were purely legal. What if its objections were political – or both legal and political? And how can one tell the difference between those grounds?

Furthermore, does this reasoning also apply to the European Parliament? It has no veto right over family law treaties, but it does over most treaties concluded by the EU. The Commission passed up a chance to clarify this issue when it withdrew its request for a CJEU Article 218 ruling as regards the controversial Anti-Counterfeiting Trade Agreement, after the EP refused its consent to that treaty on political grounds. Arguably, the legal questions remain relevant even if a treaty has been rejected by either the Council or the EP on political grounds; but the Commission surely shows good judgment by accepting the political decision of either branch of the EU’s legislature and withdrawing applications for a Court ruling in such circumstances.

Barnard & Peers: chapter 24

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In Vino Veritas: the CJEU again strengthens the EU’s external role

Steve Peers

Only a few Member States produce good wine; but it is quaffed enthusiastically in all of them. That simple fact lies at the heart of today’s judgment in Germany v Council, in which the CJEU, consistently with a string of recent judgments, significantly strengthened the EU’s role in external relations.

Background

In particular, this case concerned the situation where Member States are ‘trustees’ of the EU’s external competence. This occurs where (as is often the case), the EU is not able to sign up to a treaty or participate in an international organisation, even though it has external competence as regards the subject-matter of that organisation or treaty. In that case, as established in prior case law, Member States must act on the EU’s behalf.

However, the Treaties don’t regulate this situation directly, and before today, there was little case law regulating the details of such ‘trusteeship’. So the exercise of the EU’s powers in such scenarios can be awkward. For instance, earlier this year the Council could not agree on a Commission proposal to coordinate Member States’ positions on behalf of the EU as regards possible new ILO measures regarding forced labour (see further my blog post on this issue).

Today’s judgment concerned the International Organisation of Vine and Wine (OIV), an international organisation which was originally set up back in 1924, but which was reconstituted with a new name in 2001. Its membership includes 21 Member States, including some (such as Finland) which are not known for their quality of wine production, although the scope of the OIV also extends to grapes and (unfortunately for small children) raisins.

In practice, the main focus of the OIV is drafting technical resolutions on wine production and quality. These resolutions don’t bind the members as such, so essentially constitute ‘soft law’. The OIV adopts these measures at a lengthy annual conference held each summer in a rather pleasant location. There are probably many opportunities for delegates to sample all the latest fine wines. In short, OIV membership appears to be a little-known – but doubtless much-loved – perk for agriculture ministers and their officials.

But after 90 years of such genteel wine-tasting, this classy organisation was dragged into the mud of an arcane EU inter-institutional dispute. This began when the EU legislation establishing a common market organisation for wine was amended in 2008, in order to make the organisation’s resolutions binding as regards EU law. The Commission promptly proposed that the EU become a member of the organisation, alongside its Member States.

There was not enough support among Member States for the Council to adopt this proposal. Instead, the individual Member States coordinated their voting in the OIV’s annual meeting. The Commission then threatened those Member States with infringement actions if they continued to vote in the OIV to adopt measures which affected the EU acquis. So as a compromise, the Council agreed to adopt a Decision which would coordinate their position on behalf of the EU as a whole.

The Council acted on the basis of Article 218(9) TFEU, which provides as follows:

The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement

Germany, supported by several other Member States, then challenged this Decision on two grounds. First, it argued that Article 218(9) TFEU only permits the Council to establish the position of the EU as such, as distinct from the action of its Member States. Secondly, it argued that Article 218(9) TFEU only applies where the measures in question are binding as a matter of international law, rather than as a matter of EU law.

The judgment

The Advocate-General’s opinion agreed with Germany on both points, but the Court’s judgment rejected them both. First of all, as regards the scope of Article 218(9), the Court pointed out that the words ‘on the Union’s behalf’ did not specifically limit themselves to cases where the Union was party to the agreement in question. The Court did agree that the previous provisions of the external relations Title of the Treaty only referred to treaties signed by the EU. So did the reference to suspending a treaty, set out in Article 218(9) itself.

However, when it came to a decision adopted by a body established by an agreement, the word ‘agreement’ had a different, wider meaning, applying not only to treaties which the EU was a party to, but also to treaties which only the Member States (or some of them) were party to. The Court justified this distinction on the grounds that the Treaty rules on the negotiation, conclusion or suspension of agreements only applied to the EU itself, whereas the EU does not have to be a party to an agreement in order to control Member States’ actions as regards implementing measures.

On the second point, the Court described the soft-law decision-making process of the OIV, and then noted that due to the link with OIV measures made by EU law, those measures ‘were capable of decisively influencing the content’ of EU legislation. Therefore those measures had ‘legal effect’, and the Council could rightly adopt a Decision establishing the EU’s position on what they should be.  

Comments

The Court’s judgment means that the EU is in a strong position to coordinate its Member States’ action in international organisations, where the Member States are trustees of the Union’s external competence. In fact, as the Advocate-General’s opinion pointed out, there is now no real difference between the EU being a party to the OIV and not being a party to it.

First of all, there can now be no doubt that the EU has such a coordination power, on the basis of Article 218(9) TFEU. Secondly, since the scope of that power is linked to the existence and nature of the EU’s external competences, the Court’s recent judgment in the broadcasting rights case, giving a generous interpretation of the EU’s exclusive external powers after the Treaty of Lisbon, is relevant here.

That recent judgment is arguably also relevant by analogy to the interpretation of the condition that the planned acts must have ‘legal effects’. This condition applies, as today’s judgment makes clear, whenever EU legislation has made an express link to the measures which an international organisation might adopt. But the Court did not limit the notion of ‘legal effects’ to such cases. The concept might therefore also apply where there is merely an indirect potential impact upon EU legislation (cf the broadcasting rights case), or where the measure in question has effect only upon third parties, or within the international organisation itself.

What does this mean in practice? Where the EU has exclusive external powers, Member States can’t act to affect EU law, even if the EU is not a member of the international organisation (see the Commission v Greecejudgment, as regards the IMO). The Council Decisions coordinating Member State positions have to include a substantive legal base, so the nature of the EU’s competence is clear (CITES judgment). Even where the EU and the Member States share competence, and the EU has not regulated the issue in question, the existence of an EU strategy might prevent Member States from acting alone (see by analogy Commission v Sweden, although that case concerned a treaty which both the EU and its Member States were parties to).

Of course, the obligation of Member States to act as trustees in the EU’s interest does not mean that they will necessarily agree on a proposed Council Decision to coordinate their action (for instance, see the example of the ILO forced labour measures, referred to above).

The Court’s judgment necessarily does not directly touch upon the question of the process by which the EU authorises its Member States to sign or conclude treaties (as distinct from acting within an international organisation) as trustees of EU competence. But if the judgment is read literally, it will have a significant impact on that process. For although the judgment states that Article 218(1) to (8) TFEU only applies to the negotiation and conclusion of agreements by the EU, the EU practice until now is to use these provisions also to approve the negotiation and conclusion of treaties by the Member States, acting as trustees of the EU’s interest. (See for instance, the Council Decision concerning the domestic workers convention, based on Article 218(6) and (8)).

Oddly, there was no real discussion in this litigation of the possible alternative route of using the EU’s internal legislative powers to regulate Member States’ behaviour within international organisations. The Advocate-General briefly (and bizarrely) mentioned the possible use of Article 352 TFEU, the ‘residual powers’ clause in the Treaties, but why not simply use Article 43 TFEU, the power relating to the common agricultural policy?

This would entail the adoption of a legislative act. While it might be argued that this is too cumbersome a process to use every time the OIV holds an annual meeting, it might instead be possible to adopt only one legislative measure, which sets out a general framework for coordinating Member States’ action as regards all future OIV meetings.

Adopting a legislative act in relation to an international treaty might seem odd at first sight, but it isn’t really. It was, of course, a legislative act that first gave legal effect to OIV soft law in the EU legal order in the first place. More broadly, the EU often adopts legislative acts to coordinate Member States’ treaty-making competence, in areas subject either to EU exclusive competence (cf investment agreements) or to shared competence, where there is a large EU role (cf air transport treaties).

And if the Court really meant to say that Article 218(1) to (8) can no longer be used to allow Member States to sign and ratify international treaties as trustees of EU competence, then legislative acts will have to be used in this context too. So it would have made more sense for the Court to rule that EU internal legislative powers must be used to regulate all aspects of Member States’ trusteeship.

Some final thoughts on the role of the other EU institutions, and the position of non-participating Member States, following this judgment. First, the European Parliament (EP). It didn’t participate in the proceedings, but perhaps it should have done. As the Advocate-General pointed out, the judgment is the worst-case outcome for the EP, since it did not have the opportunity to approve EU membership in the OIV, and nor can it control the Council’s adoption of measures which impact ultimately upon the interpretation of EU legislation. In future, the EP would have the opportunity to address such issues when the EU legislation making such a link to international measures is adopted. But in this case, the legislation was adopted before the Treaty of Lisbon, when the EP was only consulted upon agricultural legislation. At least, as the Advocate-General pointed out, the EP must be ‘immediately and fully informed’ of the Council Decisions relating to Member States’ trusteeship pursuant to Article 218(10) TFEU, which the CJEU has recently interpreted broadly.

As for the CJEU, it has special jurisdiction relating to envisaged international treaties pursuant to Article 218(11) TFEU. If Article 218(9) applies to Member States’ trusteeship, then surely so does Article 218(11). Indeed, as the Advocate-General pointed out, the Court has already ruled as much. In fact, it will imminently be ruling again on such a case (Opinion 1/13, on the Hague Convention on child abduction). So we will be able in a week’s time to see how the two judgments fit together.

Finally, what about the position of Member States which are not members of the OIV? Actually, the operative part of the Court’s ruling makes no reference to this issue, and the judgment is logically equally applicable whether some or all Member States are party to the international agreement in question.

But in the particular context of the OIV, the Court’s confirmation that the Council has the power to coordinate Member States’ positions in the EU’s interests makes obvious sense. Due to the link between OIV resolutions and EU law, those resolutions impact all Member States, because they affect the quality and price of wine drunk in every Member State. Furthermore, they affect the operation of the common market in wine, which is paid for by all EU taxpayers, whether they are teetotallers or exclusively drink beer or even (inexplicably) whisky.  In this light, the decision of the UK (not a member of the OIV) to intervene, with other Member States, in support of Germany, rather than the EU institutions, is simply Pavlovian.

Barnard & Peers: chapter 24

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Copyright: anything left of Member States’ external competence?

Lorna Woods and Steve Peers

The extent of broadcasters’ rights is near the top of a long list of controversial issues arising from the law of copyright. Equally controversial is the extent of the EU’s exclusive external competence, which (where it exists) prevents Member States from signing treaties and (usually) means that they do not have a veto in the Council over the treaty concerned. These two issues came together in the recent CJEU judgment in Case C-114/12 Commission v Council, which concerned the EU’s competence to negotiate the Council of Europe’s draft treaty on the rights of broadcasting organisations.

Background

The regime covering mass electronic distribution of audiovisual works is complex, reflecting the traditionally national nature of broadcasting markets and the layered nature of intellectual property rights in audiovisual works.  In addition to the content-based rights, which are often assigned or licensed to the broadcaster, the broadcaster has rights in the signal itself (broadcasters’ neighbouring rights). These rights are found in a number of international treaties, including TRIPS. Similar rights relating to control over the fixation of the signal, as well as the making available of the signal to the public were contained in a number of directives variously implemented in the Member States, in particular Directive 2006/115/EC on Rental and Lending Rights (codifying  Directive 92/100) and Directive 93/83/EEC Satellite and Cable Directive, now codified  as Directive 2006/116). These rules have tended to be technologically specific and while Directive 2001/29 (the InfoSoc Directive) confirmed broadcasters’ rights whether wireless or cable technology was used, questions remained, notably the issue of identifying where the activity of ‘making available’ or ‘communicating to the public’ is taking place, especially in an Internet age.

There has been considerable litigation on these directives and how they operate in a new technical environment. Clearly something needed to be done and broadcasters have for some time been lobbying for change. Against this background, the Council of Europe agreed to start work on a Convention that protected broadcasters’ neighbouring rights.  According to a 2010 report, the aim of the Convention was to agree on a set of exclusive rights of broadcasting organisations, such as the right of fixation the right of reproduction, the right of retransmission, the right of making available to the public, the right of communication to the public and the right of distribution, in technologically neutral terms. Other issues were also to be discussed: the protection of pre-broadcast programme-carrying signals, the term of protection, the need for a non-exhaustive list of limitations and exceptions, the enforcement of rights and obligations concerning technological measures and rights-management information.

As for the EU’s role in these talks, the Council and Member States’ representatives adopted a single joint Decision authorising the joint participation of the EU and its Member States in the negotiations for a Convention. While the EU position would be represented by the Commission, the Member States’ collective position (if they could reach one) would be represented by the Council Presidency. If Member States could not reach a collective position on matters falling within their competence, they would negotiate individually.

The Commission disagreed with the Council’s decision on both substantive and procedural grounds, and so brought an annulment action before the Court of Justice.

Judgment

First of all, the Court quickly dismissed any doubt that the action was admissible. Even though the act in question had been adopted by the Member States alongside the Council, the Council was ‘involved’ in the entire Decision because it was both conferring and receiving power pursuant to it.

As to the substance, the Court agreed with the Commission that the envisaged treaty fell within the scope of the EU’s exclusive external competence. This was the first case in which the Court interpreted Article 3(2) TFEU (added by the Treaty of Lisbon), which provides that the EU has exclusive competence to conclude an international agreement where ‘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’

.  

The last of the three categories mentioned in Article 3(2) is similar to the classic exposition of the EU’s exclusive external competence in the ERTA judgment, although some academic opinion has suggested that the Treaty drafters have not adequately synthesized the judgment. On the other hand, some Member States intervening in support of the Council in this case suggested that the TFEU provision narrows the EU’s exclusive external competence, in particular in light of the Protocol to the Treaties on shared competences, which was also added by the Treaty of Lisbon.

However, the Court stated simply that the Treaty provision meant the same thing as the ERTAjudgment, as elaborated in the subsequent case law of the CJEU. The Protocol on shared competences was irrelevant, since it only referred to Article 2(2) TFEU, which defines the EU’s shared internalcompetences.

The Court then summarised the key aspects of the ERTA case law: it is not necessary for the international treaty and the EU legislation concerned to overlap fully; it may be sufficient that the area concerned is ‘largely covered’ by EU rules; and it is irrelevant that there is no contradiction between the treaty concerned and the internal EU rules. To show whether external competence was exclusive on this basis, there had to be a ’specific analysis of the relationship between’ the relevant international treaty and EU legislation. The Court added that the party alleging that competence was exclusive had the burden of proving it.

Applying these principles to the facts of the case, the Court summarised the relevant EU legislation (the five Directives referred to above), stating that the intellectual property rights concerned ‘are the subject, in EU law, of a harmonised legal framework which seeks, in particular, to ensure the proper functioning of the internal market’, which integrated technological, digital and information society developments, and which had ‘established a regime with high and homogeneous protection’ for broadcasters as regards their broadcasts.  It was irrelevant that this harmonisation appeared in different EU measures, which also regulated other intellectual property rights.

So the area of law to be compared as between EU law and the planned treaty was the neighbouring rights of broadcasters. On this point, while there were some differences between the existing EU rules and the planned treaty, any new rules on the planned treaty were liable to have a significant impact upon the EU acquis. In particular, the Court distinguished its prior case law which had held that external competence was shared when the EU set minimum standards, on the grounds that in this area EU legislation simply limited its scope instead. Since the new treaty might extend the scope of the EU rules, its subject-matter fell within the scope of the EU’s external competence. And on several points, the Court did not believe there was enough evidence to support the claims of the Council and some Member States that issues not covered by the EU acquis at all would be inserted into the future treaty.

For example, one particular issue relates to the protection of signals prior to their broadcast to the public – usually this occurs when one broadcaster transmits a signal to another. This issue is not currently covered by the EU rules. If the decision was taken to protect these signals, this protection could be provided in a number of ways.  The Court highlighted one option – the extension of the term ‘broadcasts’ to cover pre-broadcast signals would have horizontal effects through the regulatory system, and therefore impact on the EU acquis.  The other possible mechanisms noted (the introduction of sui generis legal protection of pre-broadcast signals or the application of the provisions dealing with ‘technical measures’ to the pre broadcast signals) would not have such an effect. The Court emphasized that in the absence of any reference to these approaches in the Council of Europe preparatory documents ‘those approaches seem, at this stage, to be hypothetical and cannot therefore be relevant to determining the exclusive or shared nature of the competence of the European Union in the present case’ (para 99).

Having ruled in favour of the Commission on its substantive argument, the Court ruled that it was not necessary to decide on the three alternative procedural arguments which the Commission had made: such a ‘hybrid’ decision of the Council and Member States was not permitted by EU law; the Council had wrongly voted by unanimity, not qualified majority; and the Council had breached the principle of sincere cooperation. The first two of these arguments had been accepted by Advocate General Sharpston in her Opinion (she thought the final argument was superfluous). However, unlike the Court, she had ruled against the Commission on the substantive point, on the basis that the Commission had argued that all of the provisions of the draft Convention were closely linked to EU law, but had failed to prove this on the facts.

Comments

First of all, as regards the admissibility of this action, the Court’s ruling is convincing as regards the Council conferring power on Commission, but arguably not as regards Member States conferring power on the Council (since it would be operating outside the EU framework in that context), and certainly not as regards Member States conferring power on Member States. The better argument for the admissibility of this action is that if the Council and Member States adopt a hybrid decision like this one, their action is indissociable. Put another way, if the Council and Member States act together in this way, there’s joint and several admissibility.

Secondly, as for the procedural points not addressed by the judgment, the Advocate-General’s opinion is not convincing. Since mixed agreements, ie agreements ratified by both the EU and its Member States, are a common feature of EU law, then there should no problem with the idea that a decision relating to negotiations on those agreements could in principle be a hybrid decision. Conceptually, that’s no different from the nature of the final mixed agreement.

As for the substantive competence issues, first of all it’s important that the Court clarified the point that ERTAand the case law elaborating upon it are still applicable to Article 3(2) TFEU, in light of the doubt which some had expressed on this point. The judgment is presumably relevant by analogy to the first two grounds for exclusive competence listed in Article 3(2) TFEU (where competence is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence). At the very least, it must follow that the Protocol on shared competence is also irrelevant to those two other grounds, since as the Court rightly said, that Protocol only refers to Article 2(2) TFEU.

Despite this important clarification, the application of the ERTA judgment itself remains complex and seems highly fact dependent in each case, arguably making the prediction of outcome difficult. Here, it is notable that the Court and the Advocate General came to different conclusions in determining the key question of whether the conclusion of the Convention affects common rules or alters their scope (Article 3(2) TFEU).  The Advocate General and the Court both stated that the burden of proof was on the Commission to show that exclusive competence had been established. As a corollary it seems the default position is shared competence. To quote the Advocate General:

if the analysis of the Convention and EU rules on the basis of the information presently available shows that in at least one respect Member States retain competence, the Commission’s plea must be rejected. [para 143]

While the Court accepted this allocation of the burden of proof, it is when we get to the specifics that differences emerge as can be seen in a couple of examples. Article 8(3) of Directive 2006/115 states:

Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.

The Advocate General analyses the matter as follows: ‘Thus, EU law does not yet regulate ‘at least’ the right of retransmission by wire or cable, whereas the Convention might do so and the Member States are currently authorised to provide for it in their own jurisdiction’ [para AG 150].  The Court accepts the same point but draws a very different conclusion from it – that the proposed Convention, by regulating areas currently outside EU competence, in itself might have an impact on EU law. The Court does not explain how, merely adopting the Commission’s position [92]. The fact that broadcasters are already partially covered by EU law does not seem to address the point.  So, the Opinion seems more logical on this point.

In a number of the aspects of the Convention under consideration, the question of whether there was impact would be affected by the approach finally taken by the negotiators. For example, the scope of the Convention would depend on its definition. While EU law does not have a definition of the term ‘broadcasting organisations’ there would be some confluence with the rights-holders under the various directives. The impact on EU law is therefore uncertain.  The Advocate General concluded cautiously:

If the definition in the Convention creates an absolute category that is wider than broadcasting organisations that are rightholders under the said directives, the creation of that category might possibly limit the European Union’s freedom to decide on its own definition. That may not be the case if the definition in the Convention were non-exhaustive and did not offer protection to entities other than existing rightholders under EU law. [AG 156]

While in this case it was necessary to finally determine the point as to whether there is impact on EU law or not, this then begs the question of what to do in such a circumstance – do we assume that if there is a possible interpretation that could affect EU law then the text is satisfied, or is a higher standard of proof required?

The difference on this point can be seen in the respective approaches of the Advocate General and the Court to pre-broadcast signals. It is clear that currently EU law does not require the protection of such signals and that the Convention proposed to afford protection to such signals. Given the early stages of negotiations, it is unclear what sort of mechanism was likely. Some possibilities might utilise techniques found in the existing legal framework (for example extending the definitions, or applying the technical measures rules to pre-broadcast signals). Since such an approach would have an impact on EU law, then that would bring the issue within the exclusive competence of the EU – appoint on which the Advocate General and the Court agreed.

Another mechanism exists – the development of a sui generis right – which would not have this effect. Here the Advocate General suggested that in such a situation there would be no exclusive competence. In stark contrast, the Court dismissed other approaches (including the sui generisright) as hypothetical, and therefore focussed only on the approach that would trigger exclusive EU competence [para 99].  No reason was given as to why the other approaches were more hypothetical than the approach the Court selected.  So while the Court and the Advocate General agree on the principles, they differ in the application of those principles, and it seems that the Court has tended to favour assessments that point towards exclusive competence.

Finally, what are the broader implications of the judgment? The Court of Justice has already ruled (in the Daiichi Sankyo judgment) that the WTO's TRIPs agreement falls within the scope of the EU exclusive external competence over the common commercial (external trade) policy (CCP), which was extended to cover trade-related intellectual property fully by the Treaty of Lisbon. It has also ruled that a Council of Europe treaty relating to enforcement of audiovisual service providers’ rights falls within the scope of the same competence, in light of the full extension of the CCP to services by the same Treaty. Usually, the Member States have no veto as regards CCP matters.

Now it seems that treaties relating to many other aspects of intellectual property can fall within the scope of the EU’s exclusive external competence, due to the exercise of the EU’s powers to adopt internal market legislation. Again, this means that Member States usually lose their veto. This effect is not absolute, given that the recent Marrakesh treaty on copyright exceptions for the blind and the Beijing treaty on audiovisual performances are both mixed agreements (see the list of signatories for the former and latter treaties respectively). However, the power of the EU (and the Commission in particular) in this field is demonstrated by the Commission’s veto of a planned Council of Europe treaty on cross-border broadcasting, at a late stage of negotiations.

More broadly, the Court’s pro-EU application of the test for exclusive competence suggests that it would be easier to find such exclusivity in other areas which the EU has only partly regulated, such as consumer law or immigration law. The broadcasting rights judgment may, in time, prove to be nearly as important as the ERTA judgment which it reconfirms and elaborates upon.

Barnard & Peers: chapter 14, chapter 24 

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