Thursday

8th Dec 2016

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.

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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

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