Governments at the EU Court: Will there be a BREXIT effect?

Authors: Favale, M., kretschmer, M. and torremans, P.

Start date: 3 September 2017

The Court of Justice of the European Union (CJEU) interprets the meaning of EU legislation. Larger numbers of preliminary references to the Court on the same legal concepts suggest either a normative void, or greater attention from political forces, or both. Taking copyright as a case-study, the paper examines all preliminary references to the CJEU registered between 1998 and 2015 regarding at least one of the directives of the copyright acquis. 170 case documents were examined with a mixed research methodology including doctrinal, content (text), qualitative (interviews), and statistical analysis, in order to measure empirically the impact of third party submissions on the legal interpretation of copyright concepts in the European Court. We find that France is the most influential country, both because of the number of interventions (an ‘investment’ in policy) and because France’s arguments are often adopted by the Court. France is closely followed by Finland, which argues equally pro copyright rightholders and copyright users. Other countries appear to have more specific interests, and may be influential despite lower participation. One of the most successful governments in arguing for copyright users is the United Kingdom. Our preliminary evidence suggests that the departure of the UK from EU copyright litigation has the potential to disturb the delicate balance of European copyright jurisprudence.

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