External competence to negotiate copyright protection treaties: who can do it for the EU?

Case C‑114/12 European Commission v Council of the European Union nearly escaped this blogger's attention completely, since there was no obvious giveaway in the title of this case to suggest that it had anything to do with copyright. The C-word however appears no fewer than 38 times in Advocate General Sharpston's Opinion. So what's it all about? As AG Sharpston explains:

"A dispute has arisen between the European Commission and the Council of the European Union about the competence to negotiate a Convention of the Council of Europe on the protection of the rights of broadcasting organisations.  On 19 December 2011, the Council and the Representatives of the Member States (meeting in the Council as representatives of their respective governments) authorised the Commission to participate in the negotiations for the Convention as regards matters falling within the European Union’s competence and instructed the Presidency to negotiate on behalf of the Member States as regards matters falling within the latter’s competence.

The Commission seeks annulment of the Decision on the ground that it fails to respect the European Union’s exclusive external competence in the area of protection of rights of broadcasting organisations. Furthermore, the Commission submits that the Decision should be annulled because it was adopted in violation of the applicable procedural rules and the principle of sincere cooperation".

In short, the AG agreed that the Decision should be annulled, for the following reasons:

* it violated both Article 218(2) TFEU, according to which it is for the Council alone to authorise the opening of negotiations concerning an international agreement and to adopt negotiating directives,

* it also violated Article 13(2) TEU, in that the Council cannot have recourse to alternative procedures and may not unilaterally derogate from the procedure in Article 218(2) TFEU by including the Member States, acting collectively in the Council, in its decision-making process.

* by adopting the Decision by common agreement, the Council violated Article 218(8) TFEU, because the Decision had to be adopted by qualified majority, this also being the general rule stated in Article 16(3) TEU.

There will be more to come, so watch this space.