C-13/00
ECLI:EU:C:2001:643
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OPINION OF MR MISCHO — CASE C-13/00
OPINION OF ADVOCATE GENERAL MISCHO delivered on 27 November 2001 1
1. It is not unusual for a Member State to Article 300(7) EC provides that mixed challenge an accusation that it has failed to agreements, like any other agreement con- fulfil its obligations. What is unusual, cluded on the basis of that article, are to be however, is for the alleged failure to be binding on the institutions of the Commu- challenged not by the defendant Member nity and the Member States. State, but by another Member State claim- ing to intervene in support of the first. That is the situation in the present case.
4. Under Article 5 of Protocol 28 annexed to the EEA Agreement, the Contracting Parties undertook to obtain their adherence 2. The Commission accuses Ireland of before 1 January 1995 to the multilateral having failed to fulfil its obligations under conventions on industrial, intellectual and the combined provisions of Article 300(7) commercial property. Those conventions EC and Article 5 of Protocol 28 annexed to include the 'Berne Convention for the the Agreement on the European Economic Protection of Literary and Artistic Works Area of 2 May 1992 2 ('the EEA Agree- (Paris Act 1971)' ('the Paris Act of the ment') in failing to obtain its adherence Berne Convention' or 'the Berne Conven- before 1 January 1995 to the Paris Act of tion'). the Berne Convention for the Protection of Literary and Artistic Works.
5. Ireland does not dispute the Commis- sion's contention that it has still not com- 3. The EEA Agreement, which entered into plied with its obligation to obtain its force on 1 January 1994, was concluded adherence to that act. It states, in this jointly by the Community and its Member respect, that a wide-ranging reform of States pursuant to Article 300 EC. national law is necessary. It points to the fact that a bill on copyright law is already at an advanced stage of scrutiny by the Irish 1 — Original language: French. Parliament and will therefore be enacted 2 — OJ 1994 L 1, p. 3. very shortly, and asks the Court to suspend
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the proceedings for six months to enable extent that there is Community competence the Commission to examine the law that that there can be a failure to fulfil an Ireland will by then have enacted, and then obligation of Community law to adhere to to discontinue its action. the measure in question.
6. According to the Court's settled case- 9. Since the Commission's application law, 3 where a Member State has failed to refers to adherence to the Paris Act of the fulfil obligations imposed on it by Com- Berne Convention as a whole, without munity law either on time or at all, it may specifying those provisions falling within not plead difficulties in its internal legal or the scope of application of Community administrative system in order to escape law, it should be dismissed on the ground from those obligations. It follows that the that the Commission has not shown that Court cannot accede to the Irish Govern- the defendant failed to fulfil an obligation ment's request. imposed on it by that law.
10. The Commission challenges both the 7. However, I cannot end my Opinion merits of that line of reasoning, and the there. That is because the United Kingdom admissibility of the intervention. of Great Britain and Northern Ireland, which has intervened in support of the defendant, claims, in essence, that the obligation alleged to have been breached is one of international law, but not falling within the scope of Community law. The Court is not therefore competent to hear 11. It states, first, that it is clear from and determine the matter. Article 93(1)(e) of the Rules of Procedure of the Court that an application to inter- vene must specify 'the form of order sought, by one or more of the parties, in support of which the intervener is applying for leave to intervene'. 8. It submits that the Paris Act of the Berne Convention does not fall wholly within the Community's competence. It necessarily follows, therefore, that neither does the obligation to adhere to it. It is only to the 12. It considers that the United Kingdom's application to intervene does not satisfy the 3 — Sec. for example. Case 254/83 Commission v Italy [1984] requirements of that provision since its ECU 3395. statement in intervention does not support
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the forms of order sought by Ireland. The arguments, they 'should lead to the dismis- application must therefore be dismissed as sal of the Commission's application, and inadmissible. not merely to the suspension of the pro- cedure', which, it will be recalled, is the order sought by the defendant.
13. It cannot be the case that an appli- cation to intervene is held to be inadmiss- ible on the basis of the text of a statement 17. It is indisputable that that sentence which was not yet known at the time when cannot be read as a plea in support of the the application was made. It appears, forms of order sought by the defendant therefore, that the Commission's first argu- since it expressly distances itself from them. ment refers, in fact, to the content of the On the other hand it may be asked whether statement in intervention. it could not be read as a claim that the form of order sought by the Commission be rejected w i t h i n the m e a n i n g of Article 93(5) of the Rules of Procedure, which provides that the statement in inter- vention is to contain a statement of the 14. The Commission further claims that form of order sought in support of or the United Kingdom also fails to set out the opposing the form of order sought by one form of order it seeks in the statement, of the parties. contrary to Article 93(5) of the Rules of Procedure, which provides that the state- ment in intervention must contain a state- ment of the form of order sought by the intervener. 18. Nevertheless it should be noted that, under the final paragraph of Article 37 of the EC Statute of the Court of Justice, '[a]n application to intervene shall be limited to 15. It considers that instead of stating the supporting 4the form of order sought by form of order it seeks, the intervener one of the parties'. I would, accordingly, be 'contents itself with speculating as to the inclined to conclude that the intervention is effect on the Commission's application of inadmissible. an acceptance by the Court of the [United Kingdom Government's] arguments' and refers, in this respect, to the final sentence of the statement in intervention.
19. In the present case, however, it is not necessary to determine that issue, since it is apparent from the Court's case-law that the
16. The United Kingdom Government states there that, if the Court accepts its 4 — Emphasis added.
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Court is required to address the arguments whether an intervener can raise an objec- of the United Kingdom Government, with- tion of inadmissibility which has not been out it being necessary to decide on the raised by the party in support of whose admissibility of its intervention. This is conclusions it is intervening'. because it appears from the statement in intervention that that Government chal- lenges the jurisdiction of the Court of Justice in this matter. 22. Whilst the present case does not con- cern a plea of inadmissibility, it is never- theless apparent from the above quotation that, in strictly logical terms, the Court's reasoning applies to any question of public policy to be examined of the Court's own motion. As has been noted, the argument of the United Kingdom Government falls 20. The Court has held that it may, of its within that category. own motion, raise an argument going to its jurisdiction, even where it has not been formally pleaded. 5It is true that in that case, the argument in question was raised by a main party and not by an intervener. I take the view however that the solution 23. It is therefore necessary to examine that adopted by the Court did not turn on that argument, without it being necessary to fact, but solely on the public policy nature rule on the admissibility of the interven- of the arguments put forward, which tion. required the Court to address them.
24. Both the United Kingdom and the Commission point out that the EEA Agree- ment, breach of which is alleged, is a mixed agreement. The United Kingdom infers from this that the Member States are only 21. That finding is, to my mind, supported bound, as a matter of Community law, by by the judgment of the Court in Neotype the provisions of that agreement falling Techmashexport v Commission and Coun- within the Community's competence. cil,6 in which it held that '[s]ince this is an However, that is only partly the case in objection of inadmissibility based on public respect of intellectual property. policy, to be examined of the Court's own motion under Article 92(2) of the Rules of Procedure, there is no need to examine
25. It follows from Opinion 1/94 of the 5 — J o i n e d Cases 154/78, 20S/78, 206/78, 226/78 to 228/78, 263/78 and 264/78, 39/79, 31/79, 83/79 and 85/79 ferriera Court 7 that, in matters of intellectual Valsabbia and Others v Commission [ 1980 ] ECR 907, paragraph 7. 6 — Joined Cases C-305/86 and C-160/87 |1990] ECR 1-2945, paragraph IS. 7 — [1994] ECR I-5267, paragraphs 99 to 105.
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property, the Community is only compet- 29. The Commission also points out that, ent to conclude international agreements when the EEA Agreement was concluded on specific matters in respect of which it by the Community and ratified by the has adopted harmonising measures at Member States, their respective obligations Community level. to the other Contracting Parties were not defined. The latter are therefore entitled to expect that the Community will assume responsibility for monitoring the fulfilment of all of the obligations it has assumed. It would be strange if, in respect of a specific 26. That situation is reflected in Article 9 matter, the Community was responsible for of Protocol 28 annexed to the EEA Agree- a Member State's breach of an inter- ment, which provides that '[t]he provisions national agreement without being able to of this Protocol shall be without prejudice require that State to adopt the measures to the competence of the Community and necessary to put an end to that breach. of its Member States in matters of intellec- tual property'.
30. It does not appear certain to me, however, that the simple fact that the respective obligations of the Community 27. The Commission puts forward various and the Member States to the other Con- arguments in opposition to that line of tracting Parties have not been defined reasoning. It relies in particular on the enables the latter to infer that the Commu- specific terms of the EEA Agreement from nity assumes responsibility for fulfilment of which it appears that the Member States the whole of the agreement in question, have accepted that the Commission is including those provisions which do not fall empowered to monitor fulfilment of their within its competence. On the contrary, the obligations under that agreement. No very fact that the Community and its exception is made in respect of intellectual Member States had recourse to the formula property or any other matter. of a mixed agreement announces to non- member countries that that agreement does not fall wholly within the competence of the Community and that, consequently, the Community is, a priori, only assuming responsibility for those parts falling within 28. It must however be emphasised that its competence. Article 109 of the EEA Agreement, referred to by the Commission, only accords a power of supervision to that institution on the condition that it acts 'in conformity with the Treaty establishing the European Economic Community'. That power is, 31. The judgment in Hermès 8 and the therefore, necessarily limited by the extent Opinion of Advocate General Tesauro in of the Community's competence, as defined by the Treaty, and the provision in question gives no guidance in that respect. 8 — Case C-53/96 [1998] ECR I-3603.
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that case, to both of which the Commission particular, of their effects on intra-Com- referred, do not undermine that finding. munity trade in goods and services', the Court has found come within the scope of application of the Treaty. 11
32. However, the other two arguments advanced by that institution seem to me to be more convincing. 36. The Commission also puts forward a second basis for Community competence by reference to the 'ERTA' decision, 12 which lays down the principle that, in order to determine the extent of the Com- 33. It relies, first, on the specific nature of munity's competence, it is necessary to the association agreements, such as the establish whether there are Community EEA Agreement. In that context, it rightly rules capable of being affected by the refers to the Demirel decision, in which the agreement in question. Court held that 'since the agreement in question is an association agreement creat- ing special, privileged links with a non- member country which must, at least to a certain extent, take part in the Community 37. As regards copyright, with which this system, Article 238 must necessarily case is concerned, the Commission points empower the Community to guarantee out that various rules of Community law commitments towards non-member coun- are capable of affecting the Member State's tries in all the fields covered by the adherence to the Paris Act of the Berne Treaty'. 9 Convention.
34. As the Commission also points out, the 38. It refers in this respect to Article 12 EC, Court has held on many occasions that, in which prohibits the Member States from common with other intellectual and com- discriminating on grounds of the national- mercial property rights, the exclusive rights ity of the author, and Article 5 of the Berne conferred by literary and artistic property Convention which deals with the same come within the scope of the Treaty. 10 point.
35. That is particularly so for copyright 39. The Commission also rightly points to and related rights, which, 'by reason, in a number of directives concerning various
9 — Case 12/86 [1987] ECU 3719, paragraph 9. 10 — See, for example. Joined Cases C-92/92 and C-326/92 Phil 11 — Phil Collins, cited above, paragraph 27. Collins and Others [1993] ECR I-5145. 12 — Case 22/70 Commission v Council [1971] ECR 263.
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aspects of copyright law, 13 which match former points to the fact that several various provisions of the Berne Conven- provisions of the Berne Convention deal tion. It gives as an example Directive 93/98, with questions that have not been harmon- which concerns, inter alia, the term of ised at Community level. It refers, in that protection of copyright, which is covered respect, to Article 11 of the Convention, by Articles 7 and 7A of that Convention. which concerns, inter alia, the public per- formance of works. The latter, by contrast, points to the number and extent of the Community provisions on the subject.
40. It is therefore indisputable that there are provisions of Community law capable of being affected by the agreement in question. 43. Nevertheless neither of them disputes that the agreement is mixed. Thus, as has been seen, the United Kingdom cites Opinion 1/94 in which the Court held that the competence concerning the subject- matter covered by the Agreement on Trade- 41. It will be noted, however, that the issue Related Aspects of Intellectual Property before the Court does not, as such, focus on Rights (WTO) ('TRIPS') 14was mixed. As the division of competence. for the Commission, it admits that it is not possible to find a Community law text to match every one of the provisions of the Berne Convention, which is nevertheless not an obstacle to the existence of Com- munity competence.
42. It is true that the United Kingdom and the Commission do not stress the same factors when they describe the division of competence in the copyright field. The
13 — Council Directive 91/2J0/EEC of 14 May 1991 on the legal protection of computer programs (OJ 1991 L 122, 44. The issue raised by the argument of the p. 42); Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights United Kingdom is not, however, the exist- related to copyright in the field of intellectual property ence of a Community competence in the (OJ 1992 L 346, p. 61); Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules present case, but the Commission's obli- concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmis- gation to set out in its application the sion (OJ 1993 L 248, p. 15); Council Directive 93/98/EEC extent of that competence. of 29 October 1993 harmonising the term of protection of copyright and certain related rights (OJ 1993 L 290, p. 9), and Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ 1996 L 77, p. 20). 14 — OJ 1994 L 336, p. 214.
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45. Accordingly, whilst it is clear from the tion is not divisible. A State cannot there- preceding discussion that the subject- fore adhere to it in part. Its adherence matter of the dispute falls, at least partly, assumes, on the contrary, the acceptance of within the Community's competence, that all of the obligations laid down by that observation is hardly conclusive in itself, Convention. It follows that if Community since it has no bearing at all on the question law requires that the Member States whether the Commission was entitled not adhere, that can only be adherence to the to specify in its application those provisions Convention as a whole. of the Paris Act of the Berne Convention governing the matters falling within the Community's competence.
49. As has been noted, that Convention includes provisions which affect Commu- nity rules. 46. The United Kingdom stresses, in this context, the fact that it is for the Commis- sion to prove failure to fulfil obligations. It may be asked, however, whether in the present case it is not advocating an unduly strict interpretation of that burden. The 50. Accordingly, the obligation to adhere United Kingdom's argument is that the to the Paris Act of the Berne Convention Commission's action is wholly inadmiss- laid down by the EEA Agreement should be ible. However, that action could equally be regarded as an indivisible obligation to considered admissible to the extent that it adhere to an agreement, various provisions concerns the Community's competence, of which affect Community rules. and should only be dismissed to the extent that it does not.
51. It is necessarily therefore an obligation concerning the Member States' compliance with Community law and, as such, capable 47. In any case, the Commission cannot be of forming the subject of an action for required, in its application in this case, to failure to fulfil obligations. distinguish between those provisions of the Paris Act of the Berne Convention dealing with matters falling within the Commu- nity's competence and those that do not.
52. The United Kingdom's argument should therefore be rejected, since it would require the Commission to seek a declar- ation from the Court that Ireland ought to 48. It should be emphasised, as the Com- have adhered to certain specific articles of mission has done, that the Berne Conven- the Paris Act of the Berne Convention,
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whilst such adherence can only be under- 54. It will be recalled that the defendant stood as the consequence of adherence to does not deny that that adherence did not that Act in its entirety, given the indivisi- take place within the time-limit set by the bility of the obligations which it lays down. reasoned opinion.
53. It follows that the Commission was entitled in its application to treat Ireland's non-adherence to the Paris Act of the Berne Convention as a failure to fulfil obligations, 55. Consequently the Commission's appli- without distinguishing between those cation should be granted. The United provisions dealing with matters falling Kingdom, as intervener, must bear its own within the Community's competence, and costs pursuant to Article 69(4) of the Rules those that do not. of Procedure of the Court.
Conclusion
56. I propose that the Court:
— declare that Ireland has failed to fulfil its obligations under the combined provisions of Article 300(7) EC and Article 5 of Protocol 28 annexed to the Agreement on the European Economic Area of 2 May 1992 in failing to obtain its adherence before 1 January 1995 to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act 1971);
— order Ireland to pay the costs, with the exception of those of the United Kingdom of Great Britain and Northern Ireland, which it must pay itself.
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