CREATe is publishing today working paper 2020/12, a double bill of two publications in the Modern Law Review. Prof. Martin Kretschmer has offered this introductory note:
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.
This working paper is a joint re-issue of two articles first published in the Modern Law Review in 2020. The core is a study I researched with my colleagues Marcella Favale and Paul Torremans, ‘Who is steering the jurisprudence of the European Court of Justice? The influence of Member State submissions on copyright law’.
This is a dense paper, presenting complex empirical findings from the examination of 170 documents relating to 42 copyright cases registered between 1998 and 2015, with the aim of assessing the impact of submissions by Member States and the European Commission on the legal interpretation of copyright concepts.
We 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).
The Commission appears to intervene particularly effectively on behalf of user interests, and one of the most effective governments arguing for the interests of copyright users is the United Kingdom. Following Brexit, the departure of the UK from EU litigation (loss of preliminary references and written observations, loss of Advocate General and CJEU Judge) is likely to affect the development of European copyright jurisprudence.
Our study is preceded by a perceptive Comment written by Luke McDonagh addressing (among other issues) the implications of the other major finding of the study, that submissions by the Commission correlate highly with the Court’s rulings and that, collectively, the submissions by Members States predict the Court’s rulings. This aligns with arguments from the political science literature that the CJEU needs to maintain political legitimacy.
In the Brexit context, it is important to understand that the juridification of the European policy process we identified is highly fragile. The constitutional role of the Court of Justice evolved out of its function as a dispute resolution mechanism. ‘Autonomous’ concepts of EU law must be interpreted the same throughout the single market. This inevitable loss of national sovereignty in a free trade area (such as the EU single market) is something Brexiteers fear more than anything. In my view, this is deeply paradoxical, since Britain’s past as a global trader involved exporting its own standards without a dispute resolution process, something that is simply no longer available in Britain’s post-Imperial world.
However, Brexiteers are right to highlight the constitutional framing of dispute resolution. A credible transnational court needs to be independent from governments, and transparently so. The CJEU arguably has insufficient safeguards here. Judges are appointed for a comparatively short term (six years), and re-appointments are based again on government nominations.
Our study also throws the spotlight on the lack of transparency about actions of Member States (their written observations are not published). Luke McDonagh suggests a more optimistic interpretation that ‘[i]n light of recent debates about the constitutional role of the CJEU within the EU and national legal orders, the MS observations system may be a pragmatic compromise allowing MS and CJEU to remain in dialogue, without resorting to direct challenges to the CJEU’s authority.’
Issuing this double bill now at the end of 2020 hopes to contribute to this important discussion.
Glasgow, 21 December 2020
 For more on the scope for regulatory divergence post-Brexit, see my Blog for the AHRC Creative Industries Policy & Evidence Centre (PEC): https://pec.ac.uk/blog/uk-sovereignty-a-challenge-for-the-creative-industries
 The discussion about the post-Brexit removal of the British Advocate General Eleanor Sharpston highlights some of these issues: https://verfassungsblog.de/lawful-composition-the-efta-courts-approach/; https://verfassungsblog.de/its-urgent-ii/; https://verfassungsblog.de/frankensteins-court/; https://europeanlawblog.eu/2020/03/18/in-support-of-the-eu-rule-of-law-and-advocate-general-eleanor-sharpston-an-open-letter/
 Special thanks to the editors of Modern Law Review for facilitating the re-publication of this double bill as a CREATe working paper. Authoritative versions of both contributions can be found here: M. Favale, M. Kretschmer, P. Torremans, ‘Who is steering the jurisprudence of the European Court of Justice? The influence of Member State submissions on copyright law’, (2020) 83(4) 831-860: https://onlinelibrary.wiley.com/doi/full/10.1111/1468-2230.12527; L. McDonagh, Stepping into the normative void – Comments on M. Favale, M. Kretschmer and P. Torremans: https://www.modernlawreview.co.uk/mcdonagh-favale-kretschmer-torremans/