The RIO Trip - Part 2: The Imperial Palace of the EU Judiciary

 

On tuesday evening we moved on from Strasbourg, leaving the Council of Europe behind, and travelled to the center of the EU judiciary: the Court of Justice of the EU (CJEU, formerly and still popularly referred to as the ECJ) in the city of Luxembourg. We only had one evening to spend in Luxembourg, but luckily we got a quick look at the city before it started becoming too late. The city is built in and around a valley so it provides for some spectacular scenery and indeed the city is beautiful. My former professor in EU constitutional law, however, had a theory that they put the CJEU in Luxembourg because of the city state being so dull that the only thing that the judges could occupy themselves with was solving cases. I stayed way to short in Luxembourg to give a reasoned opinion on the city itself, so this post will focus more on the Court itself.

The ECJ CJEU

Anybody who has travelled to the Court of Justice of the EU  and who has seen the Star Wars trilogy might understand what I am trying to convey in the following, a link to Star Wars concept art, quite effectively portray the feeling you get when you enter the CJEU. The surreal building(s) which make up the EU judiciary institution is from another world. It is built in, more or less, three colours: black, gold and dark brown and the same goes for large parts of the interior. The colour scheme and the architectural style of this palace of European law-making makes you wonder if you've entered another world. Anyway, the initial feeling of bizarreness would soon shift to excitement because we were lucky enough to attend a hearing in the General Court, which might actually have quite significant effects on EU copyright law. I was enthusiastic about going to the Court, because I have a very keen interest in EU law and find the case law of the Court to be very fascinating underneath its sometimes obnoxious style of reasoning.

Case T-442/08 
International Confederation of Societies of Authors and Composers (CISAC) v. the European Commission

CISAV v. Commission concerns a decision by the Commission, directed towards a large number of 'collecting societies' throughout Europe. Collecting societies are the organizations that collect and manage the economic copyrights of composers, authors, etc. effectively acting as a middle-man between artists and distributors. CISAC, in this equation, is an international confederation, consisting of societies from over 100 countries, which promotes the operation and management of those rights.

There is an interesting structural feature on the "market" for rights to compositions: the market is geographically delimited to individual MS, where each MS normally have only one collecting society (there are a few exceptions). This market delimitation was challenged by the Commission, alleging infringement of Article 81 TEC (now 101 TFEU, the case also alleged breach of Article Article 53 EEA) (see in particular Articles 2-4 of the decision above). CISAC argued that the management of composition rights did not fall within the scope of EU composition law as the collecting societies do not primarily collect a lot of revenue for these services, but can rather be seen as a form of public service provider. The argument was based on the idea that if a distributor wish to obtain a composition license, the system of market delimitation was in fact the most efficient way of distributing rights and licenses. The Commission, on the other hand, argued that the efficiency of this system would be improved by introducing cross-border competition between the societies. Interestingly, the Commission was relying on agreements between the societies, within the framework of CISAC, providing that the societies would not conduct any activities in the territories of their counter-parts. This point was questioned by the judges at the hearing, who wanted a clarification whether these agreements could be used as evidence of collusion.

Unfortunately, we did not hear the second part of the hearing and this point was not entirely brought to an end in the first part. Fortunately, we got to enjoy the pleading of Mr. J.-F. Bellis, a true hot-shot among European competition lawyers. Although I found the arguments of the Commission to be slightly more convincing, their litigation technique could not match Mr. Bellis.

Following the hearing, which stretched out well beyond planned time (this is apparently very common in the General Court), we got two quick presentation of the CJEU and the General Court. Although informative, these did not spark any major arousal as they were unfortunately quite basic. This was luckily outweighed by a fantastic lunch, offered to us by the Court, courtesy of dutch judge Sacha Prechal. Judge Prechal visited Leiden University earlier and gave a very interesting lecture about the Court and the future of EU law, leaving much room for students and participants to pose questions. During that presentation she promised that she would buy us poor students lunch, a promise that she certainly made good upon our visit, for which we were very grateful.

Rounding up

Visiting the Court of Justice was certainly an interesting experience, especially having studied European law for a couple of years. As a Scandinavian, the European institutions in general feel inaccessible, especially if one does not know French. The Court is, for obvious reasons, the main institution of focus when you study EU law, yet as a student, it exists in the abstract. This abstraction is further strengthened by the geographical distance, as it is situated in Luxembourg. The RIO Trip certainly served a useful purpose as it demystifies these institutions (no matter how impressive/frightening the building of the CJEU is). They are not as inaccessible as one may think (although you generally only have access if you are visiting in a group). It is also interesting to hear the the input from representatives of these institutions, although this subject will discussed further in Part 3 when the visits to the Commission and EP are covered.

I mentioned that CISAC case might have a significant importance for the future of EU copyright law. That might be a bold statement, considering that I am by no means an expert in EU copyright law. Yet the relationship between authors and end users has potential to be altered if the territorial delimitation of the collecting societies is broken up. I am inclined to agree with the Commission who argued that if the CISAC can establish an elaborate market delimitation, the societies could equally facilitate a system of competition while maintaining efficient access for distributors and users. Krishan Thakker has some interesting things to say about the subject.