|The Role of the Court of Justice in the Development of the EU Copyright Law: an empirical experience
|Favale, M. (2021). "The Role of the Court of Justice in the Development of EU Copyright Law: an Empirical Experience". In EU Copyright Law. Cheltenham, UK: Edward Elgar Publishing. doi: https://doi.org/10.4337/9781786437808.00039
|Definitive , Open Access
|Key Related Studies:
|About the Data
|Biographical data about members of the Court extracted from CJEU website;
78 CJEU copyright cases registered between 1998 and 2015 concluded before the CJEU;
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|Data Analysis Methods:
|Cross Country Study?:
|Government or policy study?:
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“The Court of Justice of the European Union has an undiscussed role in shaping EU Governance. Evidence-based policy has grown crucial to inform worldwide governance, and therefore demand for empirical studies is raising. However, empirical methods applied to legal reasoning are challenging, for the inherent nuanced nature of this subject-matter. In 2015, the author of this paper, together with her colleagues, undertook the study of the Court and its rulings, to assess its role in shaping European copyright law. This was performed by implementing on this interesting area of studies an empirical approach never attempted before. This paper illustrates the empirical research path that the author has undertaken on the functioning of the European Court of Justice (the higher Court of the CJEU) by taking Copyright Jurisprudence as a case study, with all the attached challenge and potential of this approach.”
Main Results of the Study
The study suggests that:
1. Most of the members of the CJEU are ex-academics, civil servants, and judges. Before joining the Court, most of them had a professional experience in EU Law or Public Law. However, there are no judges with previous copyright expertise. The allocation of copyright cases to the same Chambers, Reporting Judges and Advocate Generals shows there is an attempt of the Court to compensate this lack of pre-existing expertise with the creation of de facto specialist Chambers.
2. Even though there is the presence of recurrent patterns of reasoning in the copyright rulings, the outcomes remain unpredictable, especially when less copyright-experienced members of the Court are in charge of giving the judgment. Therefore, it is possible to suggest that there is a lack of a coherent copyright jurisprudence in the CJEU.
3. The Court has adopted an activist, harmonising agenda by implementing the teleological approach way above the needs of its mandate. The analysis demonstrates a prevalence of teleological topoi. However, when analysing the whole context, it is also possible to verify complex patterns of accumulation, such as a cumulative use of several approaches without a hierarchical order.
4. National governments try to influence the Court’s decisions and ensure they are in line with their policies through the submission of written observations. Within copyright cases, Member States with dominant litigators are those who invest more in shaping the evolution of the EU copyright law.
5. Quality of legal reasoning seems to be more important than critical mass, such as the number of submissions or the size of the country, when analysing the impact of written observations on the ruling of the CJEU.
Policy Implications as Stated By Author
The study recommended the introduction of specialised (copyright or intellectual property) professionals into the EU Court system as a possible solution to assist the CJEU to develop a more coherent jurisprudence. Besides that, it also recommended some other interventions such as: i) reforming the rules of procedures by making criteria for the assignment of cases clearer, for example, allowing the systematic allocation of cases to some specific chambers; and ii) promoting judicial learning when members first join the Court, which might include training “référendaires” in specific domains.
Coverage of Study