Who is steering the jurisprudence of the European Court of Justice? The influence of Member State submissions on copyright law
| Date | 01 July 2020 |
| Author | Martin Kretschmer,Marcella Favale,Paul L. C. Torremans |
| DOI | http://doi.org/10.1111/1468-2230.12527 |
| Published date | 01 July 2020 |
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Modern Law Review
DOI: 10.1111/1468-2230.12527
Who is steering the jurisprudence of the European
Court of Justice? The influence of Member State
submissions on copyright law
Marcella Favale,∗Martin Kretschmer†
and Paul L. C. Torremans‡
The juridification of the European policy process is increasingly fragile, and little understood.
This study develops a novel methodology to investigate the influence of Member States on the
rulings of the Court of Justice of the European Union (CJEU). The focus is on the domain
of copyright law which has seen a dramatic escalation of preliminary references to the Court,
indicating a normative void. Examining 170 documents relating to 42 cases registered between
1998 and 2015, we measure empirically the impact of submissions by Member States and the
European Commission on the interpretation of copyright concepts. We show that France is
the most influential country by some distance, both in terms of the number of interventions
(an ‘investment’ in policy) and in terms of persuasive power (arguments adopted by the Court).
The evidence also suggests that the departure of the UK from EU litigation will disturb the
delicate balance of CJEU jurisprudence.
INTRODUCTION
The Court of Justice of the European Union (CJEU) plays a role quite unlike
any other international court in what has been called ‘a notable juridification
of the European policy process’.1In a time of potential disintegration, it has
become more important than ever to understand how the Court performs its
integrating role in a contested political environment. This requires an analysis
that does not rely on the assumption of legal autonomy. We need to understand
the forces that shape the behaviour of the Court of Justice beyond an analysis
of the case law and the Court’s evolving jurisprudence.
∗Marcella Favale is Senior Research Fellow, Centre for Intellectual Property Policy and Manage-
ment (CIPPM), Bournemouth University and the UK Copyright and Creative Economy Centre
(CREATe).
†Martin Kretschmer is Professor of Intellectual Property Law and Director of CREATe, University
of Glasgow.
‡Paul L. C. Tor remans is Professor of Intellectual Property Law, University of Nottingham.
The research on which this article is based has been supported by CREATe, AHRC Grant Number
AH/K000179/1 and by Martin Kretschmer’sFernand Braudel fellowship at the European University
Institute (2018). We would like to thank the President of the CJEU, and in particular his chef
de cabinet Mr Ignace Maselis; the Court Registry; Marie-Pier re Granger, Andreas Moberg, Jeff
Carrubba; the agents and civil servants from all 16 Member States that made copyright submissions in
the 42 cases coded and the European Commission (followinga request under Regulation 1049/2001).
1 R. Dehousse, The European Court of Justice: The Politics of Judicial Integration (London: Macmillan,
1998) 177.
C2020The Authors. The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(4) MLR 831–860
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and
reproduction in any medium, providedthe orig inal workis properly cited.
The Influence of Member State Submissions on Copyright Law
Political science treats the possibility of autonomous action of the Court
with scepticism, often suggesting that the Court’s rulings are determined by
the anticipated reactions of national governments.2In this study, we develop
an empirical approach that uses the window of Member States’ written obser-
vations to investigate the influence of governments on the jurisprudence of the
Court in one specific subject domain: copyright law.
In her pioneering research on the behaviour of governments before the
Court, Marie-Pierre Granger3argued that carrying out a study to measure the
impact of governments’ written observations was not feasible. It is certainly true
that since ‘written observations’ are treated as ‘confidential’, and are no longer
published in the Court proceedings, this task can appear daunting. However,
in order to make a significant advance in understanding the role of national
governments in relation to the Court of Justice, these obstacles need to be
overcome.
Our core research question was initially anchored in the fast-moving domain
of copyright law because the CJEU seemed to fill a normative void, with a
dramatic escalation of cases.4We were concerned with the possibility that the
jurisprudence of the Court was open to capture, and that national governments
may be able to steer the Court to produce policy outcomes that were politically
unachievable.
Even though there are certain limitations to capturing all governments’
written observations verbatim, we show that it is possible to assemble sufficient
data to establish trends and construct a number of possible scenarios. With the
assistance of supportive agents before the Court, the Court Registry, and Free-
dom of Information requests (both under Regulation 1049/2001 and national
legislation), we have been able to produce a near comprehensive database of
interventions and outcomes in 42 copyright cases before the Court of Justice.
This allows a considerable advance in our knowledge (both methodologically
and in substance) about the functioning of jurisprudence in the complex and
elusive structure we call ‘Europe’. For the first time, it is possible to see how
Member States and the Commission are nudging the Court in a specific sub-
ject domain. Drawing on this picture, we can also simulate different scenarios
prompted by Europe’s unique geopolitical context, including the departure of
the United Kingdom from the European Union.
The research underpinning this study is our previous work on the Court of
Justi ce.5Our earlier study investigated empirically two frequently made claims:
first, that the Court failed to develop a coherent copyright jurisprudence
2 C.J.Car rubba, M. Gabel and C. Hankla, ‘Judicial Behaviorunder Political Constraints: Evidence
from the European Court of Justice’ (2008) 102 Am Polit Sci Rev 435.
3 M.P. Granger, ‘When governments go to Luxembourg . .. the influence of governments on
the Court of Justice’ (2004) 39 EL Rev 1, 1. See also, generally, M.P. Granger, ‘Les strat´
egies
contentieuses des Etats devant la Cour’ in P. Mbongo and A. Vauchez (eds), Dans la fabrique du
droit europ´
een (Bruxelles: Bruylant, 2009).
4 Preliminary references increased from six copyright cases filed in the 10 years followingthe Phil
Collins case (C-92/92), six cases in the five years between 2002 and 2006, 21 cases in the five
years between 2007 and 2011, to 43 cases between 2012 and 2015.
5 M. Favale, M. Kretschmer, P. Torremans, ‘Is there a EU Copyright Jurisprudence? An empirical
analysis of the workings of the European Court of Justice’ (2016) 79 MLR 31.
832 C2020The Authors. The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2020) 83(4) MLR 831–860
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