Friday

26th Apr 2019

Opinion

The Internet renaissance of the EU court

  • Anti-Acta mask: the uproar has focused on Acta's impact on the rights of average Internet users (Photo: Anonymous9000)

The ongoing Acta furore has ensured that even average Europeans are now familiar with this "notorious" intellectual property treaty. The uproar has focused on Acta's presumed legislative impact on the rights of average European Internet users. The quest for clarity has now culminated in two legal actions brought in front of the European Court of Justice (ECJ).

Yet, laying Acta aside altogether, there just might be a more fundamental reason why those curious to discover where and how European Internet rules are manufactured should turn their eyes towards the ECJ.

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 18 year's of archives. 30 days free trial.

... or join as a group

Granted, the existence of this Luxembourg-based institution is hardly news to most EU professionals. Yet many ordinary Europeans might struggle to explain how, for instance, it differs from the European Court of Human Rights, lurking in Strasbourg under the entirely separate auspices of the Council of Europe.

The ECJ's contribution to the EU's decades-old evolution process derives from something oh-so-dull-sounding called "the preliminary reference procedure," a peculiar system entirely absent from most European national legal establishments, as well as that of the US.

Its modus operandi is simple, based on the rough idea that similar situations should be treated uniformly throughout the union: if, upon deciding an actual case, a national court concludes that the correct interpretation of an EU statute is unclear, it should direct a preliminary question to the ECJ. The latter, in turn, provides a binding precedent - a new de facto EU-wide rule.

The system was established in the late 1950s to aid various national courts to apply brand new European Community rules, presumed to be technically too complex otherwise. Few knew the ECJ would exploit it to turbo-charge the post-war project of European integration.

First, in 1961 Costa v. Enel and 1962 Van Gend en Loos the ECJ laid out the basic doctrines of EU law, known under the jargon-loaded titles of "supremacy" and "direct effect." In practice, national legal sovereignty was significantly limited, easily surpassing the original intentions of the founder states.

Later, in cases like 1974 Dassonville and 1979 Cassis de Dijon, the ECJ stretched the EU's free movement rules to astonishing new lengths.

The case law's political backdrop was legislative inertia stemming from national protectionism, which prompted the frustrated ECJ to take justice into its own hands (hardly coincidentally, the rulings tended to derive from deliberately tailored test cases by pro-integration-minded lawyers).

The approach illustrated a phenomenon some might call questionable judicial activism. But at the time few observers in the media or academia recognised what was going on.

Some eyes were opened in the 1980s. Academic rebels like Hjalte Rasmussen dared to blame the ECJ's democratically unaccountable judges for violating the fundamental principles of separation of powers and the rule of law.

The era also entailed the "long overdue" breakthrough of harmonisation - the unification of national laws - via directives passed by the EU legislature, currently consisting of the EU Council and the European Parliament.

With cases like Keck of 1993, the ECJ took some steps back, settling for a path of increasing self-restraint. While the union kept enlarging, the ECJ sunk into relative obscurity in the public eye, with certain notable exceptions like the 1995 Bosman ruling on football transfers.

Fast-forward to 2012: everyone appreciates the importance of information technology, in particular the Internet. Its various legal aspects, often involving intellectual property, tend to be governed by EU directives. Their interpretation causes an endless stream of legal dilemmas, closely connected to the day-to-day actions of average Europeans.

Finding examples is easy: if a teenager uploads Lady Gaga's music video to YouTube, should the actual "perpetrator" or the service provider be held liable for copyright infringement? If Zinedine Zidane is defamed in a Swedish newspaper accessible everywhere on the Internet, is he allowed to bring an action in a Parisian court? If you type "iPhone" into Google, triggering an ad for a Nokia gadget to appear, is someone misusing Apple's trademark?

If you are looking for answers, browsing a book of relevant EU statutes will not get you far: directives are often intended for more traditional environments of physical items and borders; uniformity of application is a mirage.

Cyberspace can rapidly push "old" rules past their due date (the pivotal eCommerce directive of 2000 on the liability of internet service providers is an especially fitting example).

This new era of indirect legislative inertia is fuelling the quest for a "harmonisation hero" on the model of the good old ECJ and its still-valid preliminary reference procedure.

The magnitude of the ECJ’s 'new' powers is defined by the tendency of national courts to actually refer cases to it in ambiguous situations (the impetus of private litigants again makes a huge difference here).

In this regard, Belgian courts have recently demonstrated pioneer-esque courage on disputes involving Internet piracy - a stormy subject long before Acta - by launching a string of ground breaking rulings currently being closely studied all around the continent. I am thinking of last year's Sabam v. Scarlet case and last month's Sabam v. Netlog.

On the other hand, overflowing the already busy ECJ with irrelevant nitty-gritty enquiries would serve no-one's interest. Nevertheless, the need for clear EU Internet rules is clear, if for no other reason that to serve as an antidote against local judges who lack the requisite level of familiarity with the issues.

Ultimately, as long as normal legislature remains silent, Luxembourg's undercover lawmaker has little choice but to stand up.

Lassi Jyrkkio is currently writing his doctoral dissertation 'Law and Politics of Internet Rulemaking in the Legal System of the EU' at the University of Helsinki

Closer EU-Caribbean ties mean greater prosperity for all

The foreign affairs minister of Haiti calls for the replacement EU-Africa, Caribbean, Pacific 'Cotonou' agreement of 2000 to be updated to take account climate change, infrastructure and tourism to help the country transition away from aid-dependence.

'Next Juncker' must fix EU's corporate power problem

The time for genuine lobby regulation and a stop to the risk of corporate capture of EU policy-making is now. It is a question of survival and must be a priority for the next head of the European Commission.

How Brexit may harm the new EU parliament

British plans to - maybe - take part in EU elections risk legal chaos in the next European Parliament, which could be resolved only by treaty change - an unlikely prospect.

News in Brief

  1. EU: Russian citizenship plan 'attacks' Ukraine sovereignty
  2. Deutsche Bank hands over Trump loan documents
  3. UN: Europe is badly prepared for new refugee crisis
  4. Macron to set out 'Yellow vest' counter measures
  5. Italy requests EU action plan for new Libya migrant wave
  6. Far-right party leaders meet in Prague
  7. Priest shames politicians at reporter's funeral in Belfast
  8. Putin offers Russian citizenship to Ukraine regions

Press freedom and the EU elections

We are campaigning for the next European Commission to appoint a commissioner with a clear mandate to take on the challenge of the protection of freedom, independence and diversity of journalism.

Stakeholders' Highlights

  1. Counter BalanceSign the petition to help reform the EU’s Bank
  2. UNICEFChild rights organisations encourage candidates for EU elections to become Child Rights Champions
  3. UNESDAUNESDA Outlines 2019-2024 Aspirations: Sustainability, Responsibility, Competitiveness
  4. Counter BalanceRecord citizens’ input to EU bank’s consultation calls on EIB to abandon fossil fuels
  5. International Partnership for Human RightsAnnual EU-Turkmenistan Human Rights Dialogue takes place in Ashgabat
  6. Nordic Council of MinistersNew campaign: spot, capture and share Traces of North
  7. Nordic Council of MinistersLeading Nordic candidates go head-to-head in EU election debate
  8. Nordic Council of MinistersNew Secretary General: Nordic co-operation must benefit everybody
  9. Platform for Peace and JusticeMEP Kati Piri: “Our red line on Turkey has been crossed”
  10. UNICEF2018 deadliest year yet for children in Syria as war enters 9th year
  11. Nordic Council of MinistersNordic commitment to driving global gender equality
  12. International Partnership for Human RightsMeet your defender: Rasul Jafarov leading human rights defender from Azerbaijan

Latest News

  1. Greens commit to air quality 'super commissioner'
  2. Far-right Facebook networks removed before Spain election
  3. EU and Japan in delicate trade talks
  4. Closer EU-Caribbean ties mean greater prosperity for all
  5. Details of EU Brexit talks with Blair and Soros kept secret
  6. Weber vows to block Nord Stream 2 amid 'sue' threat
  7. 'Next Juncker' must fix EU's corporate power problem
  8. EU want Facebook pan-EU advert fix for May elections

Stakeholders' Highlights

  1. UNICEFUNICEF Hosts MEPs in Jordan Ahead of Brussels Conference on the Future of Syria
  2. Nordic Council of MinistersNordic talks on parental leave at the UN
  3. International Partnership for Human RightsTrial of Chechen prisoner of conscience and human rights activist Oyub Titiev continues.
  4. Nordic Council of MinistersNordic food policy inspires India to be a sustainable superpower
  5. Nordic Council of MinistersMilestone for Nordic-Baltic e-ID
  6. Counter BalanceEU bank urged to free itself from fossil fuels and take climate leadership
  7. Intercultural Dialogue PlatformRoundtable: Muslim Heresy and the Politics of Human Rights, Dr. Matthew J. Nelson
  8. Platform for Peace and JusticeTurkey suffering from the lack of the rule of law
  9. UNESDASoft Drinks Europe welcomes Tim Brett as its new president
  10. Nordic Council of MinistersNordic ministers take the lead in combatting climate change
  11. Counter BalanceEuropean Parliament takes incoherent steps on climate in future EU investments
  12. International Partnership For Human RightsKyrgyz authorities have to immediately release human rights defender Azimjon Askarov

Stakeholders' Highlights

  1. Nordic Council of MinistersSeminar on disability and user involvement
  2. Nordic Council of MinistersInternational appetite for Nordic food policies
  3. Nordic Council of MinistersNew Nordic Innovation House in Hong Kong
  4. Nordic Council of MinistersNordic Region has chance to become world leader when it comes to start-ups
  5. Nordic Council of MinistersTheresa May: “We will not be turning our backs on the Nordic region”
  6. International Partnership for Human RightsOpen letter to Emmanuel Macron ahead of Uzbek president's visit
  7. International Partnership for Human RightsRaising key human rights concerns during visit of Turkmenistan's foreign minister
  8. Nordic Council of MinistersState of the Nordic Region presented in Brussels
  9. Nordic Council of MinistersThe vital bioeconomy. New issue of “Sustainable Growth the Nordic Way” out now
  10. Nordic Council of MinistersThe Nordic gender effect goes international
  11. Nordic Council of MinistersPaula Lehtomaki from Finland elected as the Council's first female Secretary General
  12. Nordic Council of MinistersNordic design sets the stage at COP24, running a competition for sustainable chairs

Join EUobserver

Support quality EU news

Join us