The Charter, cultural diversity and the Court

Since December 2009 the Court has ruled on a variety of culture/trade matters. Sky Osterreich provides perhaps the most comprehensive case so far where the Court applied various CFR provisions. The case was about the legality of Article 15(6) of Directive 2010/13 on coordinating the provision of audiovisual services.28 This article requires member states to ensure access by any broadcaster to short reports on public events of high interest against compensation that shall not exceed the additional costs directly incurred in providing access. Sky complained that this requirement infringed its rights under Articles 16 and 17(1) CFR. The Court engaged in a very elaborate balancing exercise, in which it also introduced Article 11 CFR,29 eventually deciding that the EU legislator had struck a fair balance in Article 15(6) of the directive.

Another important line of cases has been about the responsibility of Internet service providers for the (potential intellectual property right infringing) content which is published or exchanged via their servers. In Scarlet Extended,30 Sabam v. Netlog N.V.,31 and UPC Telekabel Wien GmbH,32 the Court consistently balanced Articles 16 and 17(2) CFR against Articles 11 and 8 CFR. In the first two cases, it came to the conclusion that requiring providers to install general filtering systems in the interest of protecting Article 17(2) CFR would have a disproportionate effect on the Internet service providers and the freedom of expression. In these cases, the Court gave more weight to Articles 8, 11 and 16 CFR. In the last case, about an injunction to block access to a specific website making available to the public films without the consent of the complaining party, the Court held that Article 17(2) CFR interests could take priority under specified conditions.

The Court has not, on its own motion, rephrased questions put to it about a balance between a fundamental economic freedom and a CFR right as a situation in which a fair balance was to be sought between

15(2) CFR and the other CFR right concerned. An example of this is the recent Sky Italia.33 The Court has, however, on one occasion taken the opposite approach, which could be of analogous relevance to cultural diversity questions. In McDonagh, the Court was asked by the referring court to consider the relevance of Articles 16 and 17 CFR in the context of a case about financial compensation for flight delays. The Court, on its own initiative, referred to Article 38 CFR (consumer protection) to make the point that the airline's interests were not the only ones raising fundamental rights aspects.34 It therefore rephrased the case as one that was about balancing economic and other interests, and concluded on that basis that secondary legislation in place to grant compensation for flight delays struck a fair balance in accordance with the CFR. Article 22 CFR could be brought up, or relied upon, in a similar fashion.

A final category is where the Court has made no reference to the CFR. In Mesopotamia, the Court had to interpret Article 22a in Directive 89/552,35 on coordinating the pursuit of television broadcasting activities about avoiding broadcasts containing incitement to hatred on various grounds. Even if the Court noted that the purpose of this provision was related to Article 10 ECHR and the Charter more gener- ally,36 it analysed Article 22a of the Directive without considering these sources.37 This is a striking interpretational method. How can the meaning of a secondary law text, which actually refers to Article 10 ECHR, be established only on the basis of that text itself? Svensson is another example where, even if the facts were clearly about a conflict between Article 17(2) and 11 CFR, the Court referred to neither of them.38 Stichting de Thuiskopie was about Dutch legislation laying down a private copying levy on all empty CDs and DVDs sold in order to serve as 'compensation' for intellectual property violations, given that in practice many of these CDs and DVDs were likely to be used to store illegal copies. The Court did not mention, let alone base its reasoning on, Article 17(2) CFR.39 The approach of the Court not to refer to the Charter even now that it is legally binding has been noted more broadly, and has been rightly criticised (De Burca, 2013).

In light of this case law overview, it is too early to make any definite statements about whether the CFR is making a difference in the way the Court balances trade and cultural interests. There is, however, clearly no indication that the CFR has served as a platform consistently to stress economic interests at the expense of cultural interests, even if Article 16 CFR is frequently invoked. Article 15(2) CFR has not so far been relied upon by the Court at all. Further study is thus required in order to see whether the Court will use the Charter to make subtle alterations to the balancing of trade with cultural interests.

 
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