Who is steering the jurisprudence of the European Court of Justice? The influence of Member State submissions on copyright law.

Abstract

The complex and elusive structure we call ‘Europe’ is the result of multiple cultural, economic, social and political conditions under which Law, and in particular the jurisprudence of the Court of Justice of the European Union (CJEU), is performing a unique integrating role. The juridification of the European policy process is increasingly fragile, and little understood. This study extends a novel methodology developed in our previous work (MLR 2016) that revealed the workings of the Court through empirical analysis of the disciplinary background of judges and topoi engaged in their reasoning. Our new study turns the attention to the influence of Member States on the rulings of the Court. We focus again on the domain of copyright law in which we have seen a dramatic escalation of preliminary references to the Court, suggesting 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 legal interpretation of copyright concepts. The findings 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 (France’s arguments – 69% in favour of rightholders – are more often adopted by the Court than any other country’s). Surprisingly, three smaller countries are in the next group of strong influencers: Finland (slightly skewed pro-rightholders), Portugal (strongly user friendly) and Czech Republic (moderately rightholder friendly). Other countries appear to have very specific interests, intervening less often and in a targeted manner. They may be influential despite lower participation. One of the most effective governments arguing for the interests of copyright users is the United Kingdom. Our evidence suggests that the departure of the UK from EU litigation has the potential to disturb the delicate balance of European copyright jurisprudence.