Court of Justice says that the European Union has exclusive competence to ratify the WIPO Marrakesh Treaty

On 14 February, in Opinion 3/15, the Court of Justice of the European Union (CJEU) has found that the European Union has exclusive competence to conclude the WIPO Marrakesh Treaty.

Since the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled in June 2013 it was unclear whether the EU had the exclusive competence to ratify it, and a number of EU Member States were arguing against it. The European Commission asked the CJEU to give its Opinion on the question.

In its Opinion, the Court took the following view:

•    The Marrakesh Treaty does not come within the ambit of the EU common commercial policy, for which the EU has exclusive competence;

•    However, the EU has also exclusive competence “when the conclusion of an international agreement may affect ‘common rules’ or alter their scope”. The Court considered whether that was the case with the Marrakesh Treaty and found that, indeed, the Treaty may affect the scope of the InfoSoc Directive (Directive 2001/29) since “the exception or limitation provided for by the Marrakesh Treaty will have to be implemented within the area harmonised by the directive”. In addition, the Treaty lays down an obligation for Member States to introduce an exception or limitation for the benefit of certain persons with disabilities (and not an option as in the InfoSoc Directive) 

•    The Court therefore decided that “the treaty may be concluded by the EU acting on its own, without the participation of the Member States”. 

Andrus Ansip, Vice-President of the European Commission who has taken over since January the Digital Economy & Society portfolio that includes the review of EU copyright rules, has welcomed the decision in an official statement:

“Today's ruling clarifies how the Treaty can be ratified in the European Union. This can now be done very quickly. While this is a very important step, other measures need to be taken as fast as possible. I rely on the European Parliament and Member States to adopt our proposals rapidly; in other words, to "translate" the Treaty into EU copyright rules. I am confident this can be one of the many achievements reached during the Maltese Presidency of the EU. ”  

One will note that the Court’s Opinion on the ratification of the treaty is independent from the two legislative proposals released by the European Commission in September 2016 to implement the Marrakesh Treaty into EU law (a Regulation (COM(2016)0595) and a Directive (COM(2016)0596)), which are currently being discussed at the European Parliament.

Find the Court’s official press release here.