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ECJ gives Commission exclusive power to sign copyright pact under the EU’s commercial policy


This week, the European Court of Justice (ECJ) opined that the EU is exclusively competent to conclude the 2009 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

Though the matter of the treaty itself is non commercial, the court ruled in Opinion  3/15 that the EU had exclusive competence to rule on the case on the basis of the Common Commercial Policy (Article 207 ), which covers intellectual property, but also on the basis of the Treaty on the Functioning of the European Union’s (TFEU) Article 19.1, which covers the EU’s power to adopt non-discrimination laws.

In April 2014, Council decided to sign the Marrakesh Treaty for the European Union based on Article 207 and Article 114, which covers the EU’s internal market power. But member states then rejected the subsequent Commission proposal for the conclusion of the agreement.

The Commission brought the case the the ECJ to counter the arguments of the Czech Republic, Finland, France, Hungary, Italy, Lithuania, Romania, and the United Kingdom.

The Court’s opinion is not a full win for the Commission.

Though the ruling clarified the scope of the EU’s intellectual property prerogatives under the Common Commercial Policy, member states can still bloc a move related to the signing of agreements such as the Marrakesh Agreement: “the provision stipulates that the adoption of EU legislation requires unanimity in the Council, EU treaty-making under the anti-discrimination power equally grants the Member States veto powers in the Council”, explains Gesa Kübeck, from the University of Passau in Germany in a piece on the case as the EU Law and Policy Blog.

As a result, “institutional debate over the conclusion of the Marrakesh Treaty might continue”, Kübeck reckons.