The European Court of Justice (CJEU) has long been regarded as a central player in shaping European Union (EU) law. While its decisions often appear impartial and guided by legal principles, a recent study by Favale, Kretschmer, and Torremans reveals a deeper, more complex dynamic at play. Their empirical research investigates how EU Member States influence the Court’s rulings, particularly in the field of copyright law.
The Growing Influence of the CJEU in Copyright Law
The paper highlights the increasing role of the CJEU in shaping copyright law within the EU. The number of preliminary references—questions sent by national courts to the CJEU for interpretation—has significantly grown since 2008, pointing to a normative void in copyright policy. In many cases, Member States use their legal submissions as a means to steer the Court’s jurisprudence in directions that align with their national policies.
To better understand this phenomenon, the researchers examined 42 strategic copyright cases registered between 1998 and 2015. These cases involve recurring legal issues, suggesting ongoing policy disputes that the Court is being called upon to resolve.
How the Study Was Conducted
The study employs an innovative methodology that combines doctrinal analysis, content analysis, and statistical correlation. By examining 170 court documents, including rulings, Advocate General opinions, and Member State submissions, the authors identify patterns of influence and track which governments are most actively shaping copyright law.
The dataset used in the study captures two main factors:
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The interests of governments in specific copyright concepts.
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The correlation between Member State submissions and the Court’s final rulings.
This allows the researchers to measure the degree of influence exerted by each country.
The Five Most Contested Copyright Issues
The study identifies five key legal concepts that frequently appear before the Court:
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Communication to the Public – The most litigated issue, appearing in 15 cases, relates to how copyrighted works are shared with the public, particularly online.
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Copyright Exceptions – Disputes over limitations on copyright, such as exceptions for libraries, parody, and private use.
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Levies (Fair Compensation for Private Copying) – The economic mechanism by which copyright holders are compensated for private copies of their works.
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Distribution Rights – The legal boundaries of distributing copyrighted materials.
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Liability of Intermediaries – The responsibility of internet platforms and service providers in facilitating copyright infringement.
Each of these areas represents a contested policy space, where different Member States push for interpretations that align with their national legal frameworks and economic interests.
Which Countries Are the Most Influential?
One of the study’s most intriguing findings is that certain Member States are significantly more involved in copyright litigation than others. France and Italy lead the pack, each intervening in 15 out of the 42 analyzed cases. The UK follows closely with 12 cases. Smaller countries like the Czech Republic, the Netherlands, and Portugal also appear to invest disproportionately in copyright litigation.
The level of success varies, however. France emerges as the most influential Member State, not only in the number of cases it intervenes in but also in its persuasive power—many of its legal arguments are adopted by the CJEU.
Interestingly, Germany, despite its legal and economic prominence in the EU, intervenes in relatively few copyright cases (six in total) but achieves a high success rate when it does. On the other hand, countries like Poland, Greece, and Austria participate frequently but seldom see their legal arguments reflected in the final rulings.
Beyond Numbers: Quality Over Quantity?
A critical insight from the research is that influence is not merely a numbers game. The effectiveness of a Member State’s intervention depends more on the quality of its legal reasoning than on the sheer number of submissions. Smaller countries like Finland and Portugal, which might not have the same resources as France or Italy, still manage to shape the Court’s decisions through well-crafted legal arguments.
Why Does This Matter?
The findings have significant implications for EU governance and legal policymaking. They suggest that the CJEU does not operate in a vacuum but is actively shaped by national governments through strategic litigation. This raises questions about transparency and accountability: should Member State submissions be more publicly accessible? Should there be mechanisms to balance competing national interests more equitably?
Furthermore, the study highlights how Brexit may disrupt the balance of copyright jurisprudence. The UK has historically played a crucial role in advocating for a more user-friendly copyright regime, often opposing the more protectionist stance favored by countries like France. Without the UK’s presence, the equilibrium between copyright holders and users in the EU may shift.
Conclusion: The Court as a Policy Battleground
This study sheds light on a critical yet underexplored aspect of EU law: the strategic role of Member States in shaping CJEU jurisprudence. Copyright law, with its recurring disputes and regulatory gaps, provides a fertile ground for such influence. The research offers a new perspective on the production of transnational law, showing that the CJEU is not merely an independent arbiter but a legal battleground where national governments compete to shape European policy.
As copyright law continues to evolve, understanding these dynamics will be crucial for policymakers, legal practitioners, and scholars alike. The influence of Member States on the CJEU is not just a technical legal issue—it is a fundamental question of how European law is made, who gets to shape it, and what values it ultimately reflects.
From a Paper by 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’ May 2020, Modern Law Review 83(4)
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