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Modalities of Fundamental Rights Balancing in EU Copyright Law: Understanding the Use and Abuse of the EU Charter and the Concept of “Fair Balance”

June 2024
European Law Review 49(3):256

Authors:

Hanken School of Economics

This article critically examines the ECJ’s use of fundamental rights and balancing rhetoric in its copyright case law. It distinguishes between its use in two main contexts: the interpretation of EU secondary legislation itself and the delineation of the limits of the discretion left to Member States in that legislation. It explains how the ECJ, despite heavy use of balancing rhetoric, applies context-specific techniques to avoid actual substantive balancing of normative arguments and suggests that it has context-specific reasons for doing so. This context-sensitive examination of the case law not only helps us to better understand the problems with the ECJ’s reliance on balancing rhetoric, but it also elucidates the relationship between balancing by the ECJ and balancing in individual cases by national courts, as well as between the EU Charter and national fundamental rights.

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Modalities of Fundamental Rights Balancing in EU Copyright Law:

Understanding the Use and Abuse of the EU Charter and the

Concept of “Fair Balance”

Daniël Jongsma

This is a pre-copyedited, author-produced version of an article accepted for publication

in European Law Review following peer review. The definitive published version is available

online on Westlaw UK or from Thomson Reuters DocDel service .

Abstract:

This article critically examines the ECJ’s use of fundamental rights and balancing

rhetoric in its copyright case law. It distinguishes between its use in two main contexts:

the interpretation of EU secondary legislation itself and the delineation of the limits of

the discretion left to Member States in that legislation. It explains how the ECJ, despite

heavy use of balancing rhetoric, applies context-specific techniques to avoid actual

substantive balancing of normative arguments and suggests that it has context-

specific reasons for doing so. This context-sensitive examination of the case law not

only helps us to better understand the problems with the ECJ’s reliance on balancing

rhetoric, but it also elucidates the relationship between balancing by the ECJ and

balancing in individual cases by national courts, as well as between the EU Charter and

national fundamental rights.

 Postdoctoral researcher at Hanken School of Economics (Helsinki, Finland). I wish to thank Professor Nari Lee

for her thoughtful comments on an early draft of this article, as well as the Editor of the European Law Review

and the anonymous reviewer for their constructive feedback and suggestions. While writing this article I received

financial support from the research project Fairness, Morality and Equality in International and European

Intellectual Property Law (FAME-IP), funded by the Academy of Finland. All online sources were last accessed on

5 March 2024.

1. Introduction

The relationship between copyright and fundamental rights is complicated and controversial.

Since the turn of the millennium, there has been intense debate on issues such as the

influence of constitutional norms on the construction of copyright law, the potential for

fundamental rights to act as so-called external limitations to copyright, and the status of

In the EU, the debate has been further fuelled by an

increasing reliance on fundamental rights in private copyright litigation and an ever-growing

number of references to fundamental rights in court decisions. At the Member State level, for

instance, several highest national courts have emphasised the need to ensure that the

outcome of proceedings does not violate any fundamental right.

Such decisions are in line

with two rulings of the European Court of Human Rights from 2013, in which the Strasbourg

Court recognised that copyright enforcement may constitute a limitation of the right to

freedom of expression, as guaranteed by article 10 of the European Convention on Human

Rights, and that such a limitation must be “necessary in a democratic society”.

The European Court of Justice (“ECJ”) has arguably played the most important role in this

constitutionalisation of European copyright law, which has been extensively, albeit

incompletely, harmonised. Beyond using fundamental rights in their traditional sense as

standards of review against which to measure the validity of EU legislation, the ECJ

increasingly relies on fundamental rights when it determines the content and scope of EU

its ruling in Promusicae,

the Court has in various contexts emphasised that the

interpretation, implementation and application of EU copyright norms must preserve a “fair

balance” of (fundamental) rights and interests. Relying on this concept of fair balance, the

Court itself has both denied and required that certain remedies may be granted by national

courts,

adopted as well as rejected narrow readings of exclusive rights granted to right

The contributions are too numerous to cite here. Notable early contributions in the European context include

C. Geiger, Droit d'auteur et droit du public à l'information (Paris: Litec, 2004), J. Griffiths & U. Suthersanen

(eds), Copyright and Free Speech. Comparative and International Analysis (Oxford: Oxford University Press,

2005), A. Strowel & F. Tulkens (eds), Droit d'auteur et liberté d'expression. Regards francophones, d'Europe et

d'ailleurs (Brussels: Larcier, 2006) and P. Torremans (ed), Copyright and Human Rights. Freedom of Expression,

Intellectual Property, Privacy (Alphen aan den Rijn: Kluwer Law International, 2004).

See Austrian Supreme Court, 13 July 2010, case 4 Ob 66/10z, Dutch Supreme Court, 3 April 2015,

NL:HR:2015:841, GS Media v Sanoma and French Supreme Court (First Civil Chamber), 15 May 2015, Klasen,

English translation in IIC 2016, p. 856.

Decision of the European Court of Human Rights (Fifth Section), in the case of Ashby Donald and Others v.

France, Appl. No. 36769/08, of 10 January 2013 and Decision of the European Court of Human Rights (Fifth

Section), in the case of Neij and Sunde Kolmisoppi v. Sweden, Appl. No. 40397/12, of 19 February 2013.

Promusicae (C-275/06) EU:C:2008:54.

Compare, e.g., Scarlet Extended v SABAM (C-70/10) EU:C:2011:771 and Coty Germany (C-580/13)

EU:C:2015:485.

holders,

and suggested both a narrowing down and an opening up of the scope of limitations

and exceptions to those rights.

This balancing paradigm has been extensively criticised, particularly when it comes to the

ECJ’s reliance on fundamental rights balancing. Some criticism is fundamental in nature and

suggests that balancing is a flawed methodology that must be abandoned altogether, echoing

criticism heard in legal and constitutional theory that balancing tries to compare the

incomparable and lacks a coherent and objective framework.

Other critics target the ECJ’s

specific brand of fundamental rights balancing, stating that the ECJ’s reliance on fundamental

rights lacks “a compelling overall design”;

often ignores affected rights;

locks in

interpretations of secondary law in a way that cannot be overturned by the legislature;

potentially serves a “harmonising agenda”;

or even evinces a certain bias as regards the

desired result.

Possibly the strongest criticism is aimed at the ECJ’s reliance on the

aforementioned concept of “fair balance”. It has been called “vacuous and unhelpful”

and

“an empty slogan merely giving fundamental rights gloss to the ECJ case law”

. Many

commentators have lamented the alleged lack of clarity and guidance as to how this balance

is (to be) struck.

Compare, e.g., Pelham and Others (C-476/17) EU:C:2019:624 and Renckhoff (C-161/17) EU:C:2018:634.

Compare, e.g., Deckmyn and Vrijheidsfonds (C-201/13) EU:C:2014:2132 and Funke Medien NRW (C-469/17)

EU:C:2019:623.

Cf., e.g., T. Mylly, “Proportionality in the ECJ's Internet Copyright Case Law: Invasive or Resilient?” in U. Bernitz

et al. (eds), General Principles of EU Law and the EU Digital Order (Alphen aan den Rijn: Kluwer Law International,

2019), p. 272-275. See also, criticising the use of balancing in copyright law generally, R. Burrell & A. Coleman,

“The fundamental right to (intellectual) property and the discretion of the legislature” in C. Geiger (ed), Research

Handbook on Human Rights and Intellectual Property (Cheltenham, UK; Northampton, MA, USA: Edward Elgar,

2015), p. 135.

S. Garben, “Fundamental rights in EU copyright harmonization: Balancing without a solid framework: Funke

Medien, Pelham, Spiegel Online” (2020) 57 C.M.L. Rev. 1909, 1911-1912.

E.g., Mylly, “The constitutionalization of the European legal order” in Geiger (ed), Research Handbook on

Human Rights and Intellectual Property (2015), p. 116, T. Oruç, “The Prohibition of General Monitoring

Obligation for Video-Sharing Platforms under Article 15 of the E-Commerce Directive in light of Recent

Developments: Is it still necessary to maintain it?” (2022) 13 JIPITEC 176, para 40 and Teunissen, “The balance

puzzle” (2018) 40(9) Eur. Int. Prop. Rev. 579, 592.

Cf. Mylly, “The constitutionalization of the European legal order” in Geiger (ed), Research Handbook on Human

Rights and Intellectual Property (2015), p. 127-128 and M. Husovec, “Intellectual Property Rights and Integration

by Conflict: The Past, Present and Future” (2016) 18 Cambridge Yearbook of European Legal Studies 239, p. 268.

Griffiths, “Constitutionalising or harmonising?” (2013) 38 E.L. Rev. 65, 71. Cf. also Mylly, “The

constitutionalization of the European legal order” in Geiger (ed), Research Handbook on Human Rights and

Intellectual Property (2015), p. 119 and Husovec, “Intellectual Property Rights and Integration by Conflict” (2016)

18 Cambridge Yearbook of European Legal Studies 239, p. 261-269.

Cf. Mylly, “Proportionality in the ECJ’s Internet Copyright Case Law” in Bernitz et al. (eds), General Principles

of EU Law and the EU Digital Order (2019), p. 276.

J. Griffiths, “Constitutionalising or harmonising? The Court of Justice, the right to property and European

T. Mylly, “The constitutionalization of the European legal order: Impact of human rights on intellectual

property in the EU” in Geiger (ed), Research Handbook on Human Rights and Intellectual Property (2015), p. 130.

See, e.g., C. Angelopoulos, “Sketching the Outline of a Ghost: The Fair Balance between Copyright and

Fundamental Rights in Intermediary Third Party Liability” (2015) retrieved from

This article takes a closer look at the use of balancing discourse in EU copyright law, in

particular as it concerns fundamental rights. It investigates the ways balancing affects the

scope of protection in the multilayered European legal order. Balancing, although couched in

largely uniform terminology – first and foremost the concept of fair balance – is far from a

monolith: it entails different modalities. This article contributes to the extensive body of

critical research in two principal ways.

First, this article elaborates on the criticism that the ECJ’s balancing of rights and interests is

often vague and obscure, by exploring the specific features of the ECJ’s balancing rhetoric in

two main contexts: the interpretation of concepts whose meaning and scope are entirely a

matter of EU law, and situations in which EU secondary law leaves discretion to Member

States. The former will be referred to as “domestic” cases (as they are located exclusively

within EU law) and the latter as “composite” cases (as the outcome is a matter of both EU and

national law).

The article explains how, despite its balancing-heavy rhetoric, the ECJ itself

structurally avoids actual substantive balancing of normative arguments, such as values,

(public policy) goals, rights and interests, in both of these contexts.

That is, balancing is not

explicitly used to autonomously establish and justify a conditional order of priority between

conflicting normative arguments by weighing them against each other and by identifying the

reasons that determine their relative weight.

To understand this behaviour, and to better

grasp the issues involved in the ECJ’s reliance on balancing rhetoric in either context, the

<https://ssrn.com/abstract=2932245>, p. 2, B.J. Jütte, “The beginning of a (happy?) relationship: copyright and

freedom of expression in Europe” (2016) 38(1) Eur. Int. Prop. Rev. 11, 17, P. Oliver & C. Stothers, “Intellectual

Property under the Charter: Are the Court’s Scales Properly Calibrated?” (2017) 54 C.M.L. Rev. 517, 517 & 564-

565, T. Rendas, “Fundamental rights in EU copyright law: an overview” in E Rosati, The Routledge Handbook of

EU Copyright Law (London & New York: Routledge 2021), p. 33, C. Sganga, “A decade of fair balance doctrine,

and how to fix it” (2019) 41(11) Eur. Int. Prop. Rev. 683, 684, T. Synodinou, “Intermediaries' liability for online

59 and P. Teunissen, “The balance puzzle: the ECJ's method of proportionality review in EU copyright law” (2018)

40(9) Eur. Int. Prop. Rev. 579, 584.

This terminology is borrowed from E. Spaventa, “Should We ‘Harmonize’ Fundamental Rights in the EU? Some

Reflections about Minimum Standards and Fundamental Rights Protection in the EU Composite Constitutional

System” (2018) 55 C.M.L. Rev. 997, 1005.

Because it does not directly concern the use of balancing (rhetoric) to determine the scope of protection,

formal fundamental rights review of the validity of copyright legislation is not discussed at length, although also

there the ECJ has notoriously avoided balancing in the form of a proportionality stricto sensu analysis. In

Metronome Musik v Music Point Hokamp (C-200/96) EU:C:1998:172 and Laserdisken (C-479/04) EU:C:2006:549

the ECJ did not conduct a serious proportionality analysis at all. In the more recent challenge to art.17 DSM

Directive, the ECJ did conduct a full proportionality analysis, but its proportionality stricto sensu analysis was

limited to determining the presence of sufficient safeguards. It did not ask whether, despite the presence of

these safeguards, the resulting interference with the fundamental rights in question was justified (i.e. balanced).

See Poland v Parliament and Council (Case C-401/19) EU:C:2022:297.

Cf. the conceptualisation of balancing by, e.g., R. Alexy, A theory of constitutional rights (J. Rivers trans.;

Oxford: Oxford University Press, 2002), A. Barak, Proportionality. Constitutional Rights and their Limitations

(Cambridge: Cambridge University Press, 2012), ch.12, K. Möller, “Proportionality: Challenging the critics” (2012)

10(3) Int’l. J. Const. L. (I·CON) 709, M. Kumm, “The Idea of Socratic Contestation and the Right to Justification:

The Point of Rights-Based Proportionality Review” (2010) 4 Law & Ethics of Human Rights 140, 168-169., J. Rivers,

“Proportionality, Discretion and the Second Law of Balancing” in G. Pavlakos (ed), Law, Rights and Discourse:

The Legal Philosophy of Robert Alexy (Oxford: Hart 2007) and J. Sieckmann, The Logic of Autonomy. Law, Morality

and Autonomous Reasoning (Oxford: Hart, 2012), Ch.5.

article explains how the ECJ avoids balancing, why it might choose to do so, and what the role

of balancing would be. Although the lack of true balancing considerations has previously been

acknowledged, these context-specific features deserve closer reflection and greater

recognition.

Second, this article explores the dual role that balancing plays in composite cases, to clarify

the relationship between the rights laid down in the Charter of Fundamental Rights of the

European Union (the “Charter”) and national fundamental rights, where these are

concurrently applicable. In particular, where Member States are left discretion by EU

secondary legislation in striking a balance between the affected rights and interests, rights

balancing can occur on two levels: one, balancing (or at least its rhetoric) is used by the ECJ

to determine the limits imposed by the Charter on that discretion; two, in applying the

national norms implementing that secondary legislation, national courts may resort to striking

a balance in the concrete circumstances of the case (i.e. in deciding how to exercise that

discretion). The question is whether a role exists for Charter rights, beyond acting as limits to

that discretion, for instance as factors to be weighed by national courts when striking a

balance in individual cases. Such an indirect effect of the Charter at the national level might

raise difficult questions about who (national court or ECJ) has the final say on how

fundamental rights must be balanced in individual cases, threaten the discretion left to

member States in secondary law, and displace national fundamental rights. It will be

suggested that the Charter might play a smaller role at the national level than what is

sometimes assumed.

This article will proceed as follows. First, I discuss the role of balancing rhetoric in domestic

cases. It is suggested that in this context balancing rhetoric is primarily used to justify

interpretations of copyright law to achieve an appropriate scope of protection, and that

balancing is avoided due to the complicated and political nature of this process. I then turn to

the role of balancing in composite cases. In this context, the ECJ’s balancing rhetoric, by

contrast, is an expression of the fact that discretion left to Member States by secondary law

is limited by the obligation to comply with primary law. It is suggested that the ECJ

nevertheless avoids actual balancing in this context in deference to that discretion.

2. Balancing and the Charter in domestic cases

This section considers the role of balancing rhetoric in the context of the ECJ’s interpretation

of provisions and concepts whose meaning and scope are entirely matters of EU law. Despite

the prevalence of such balancing rhetoric, the ECJ appears to go out of its way not to carry

out any substantive balancing. This section considers the methods that the ECJ uses to avoid

balancing, why it might do so, and the function balancing fulfils in this context.

2.1 Interpretation of EU law and balancing rhetoric

Fundamental rights and balancing rhetoric play a significant role in this context. The ECJ

frequently emphasises that the stated aim of the InfoSoc Directive, which harmonises the

most important exclusive rights of authors and related rights holders and sets out permissible

limitations and exceptions to those rights, is to maintain a “fair balance of rights and

interests”.

The ECJ has invoked fundamental rights and this concept of fair balance to support both

narrow readings of the exclusive rights granted by copyright law

and liberal interpretations

of limitations and exceptions to those rights.

Notably, fundamental rights arguments and

the concept of fair balance have also been used to justify interpretations of exclusive rights

favouring right holders.

Despite this occasional employment to the benefit of right holders,

reliance on fundamental rights is generally welcomed as a relief from the right-holder-

friendly, broad interpretation of exclusive rights, and the strict interpretation of limitations

and exceptions on which the ECJ has traditionally relied, by introducing fundamental rights as

counterweights to right holder interests.

Recital 31 in the Preamble to Directive 2001/29/EC on the harmonisation of certain aspects of copyright and

related rights in the information society [2001] OJ L 167.

GS Media (C-160/15) EU:C:2016:644, at [44]-[45], Pelham and Others (C-476/17) EU:C:2019:624, at [38] and

BY (Preuve photographique) (C-637/19) EU:C:2020:863, at [31]-[33]. See also, concerning the sui generis

database right, CV-Online Latvia (C-762/19) EU:C:2021:434, at [41]-[44].

Painer (C-145/10) EU:C:2011:798, at [134]-[137], DR and TV2 Danmark (C-510/10) EU:C:2012:244, at [57],

Funke Medien NRW (C-469/17) EU:C:2019:623, at [73]-[75] and Spiegel Online (C-516/17) EU:C:2019:625, at

[71]-[72] & at [81]-[82]. Cf. also TU Darmstadt v Eugen Ulmer (C-117/13) EU:C:2014:2196, at [31]. Cf. also

Spedidam and Others (484/18) EU:C:2019:970, at [44] (concluding EU law does not preclude national law

establishing a rebuttable presumption that performers have authorised fixation and exploitation of their

performances), Constantin Film Verleih (C-264/19) EU:C:2020:542, at [35]-[38] (narrow interpretation of the

concept of address within the meaning of Directive 2004/48/EC on the enforcement of intellectual property

rights [2004] OJ L 157, corrigendum published in OJ L 195 (the “Enforcement Directive”))

Renckhoff (C-161/17) EU:C:2018:634, at [41], VG Bild-Kunst (C-392/19) EU:C:2021:181, at [54] and M.I.C.M.

(C-597/19) EU:C:2021:492, at [58].

See, e.g., C. Geiger & E. Izyumenko, “The Constitutionalization of Intellectual Property Law in the EU and the

Funke Medien, Pelham and Spiegel Online Decisions of the CJEU: Progress, but Still Some Way to Go!” (2019)

retrieved from <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3472852>, J. Griffiths et al., “The

European Copyright Society’s ‘Opinion on the judgment of the CJEU in Case C-201/13 Deckmyn’” (2015) 37 Eur.

Int. Prop. Rev. 127, S. Jacques, “On the wax or wane? The influence of fundamental rights in shaping exceptions

and limitations” in Rosati, The Routledge Handbook of EU Copyright Law (2021), p. 295 and T. Rendas,

Despite the emergence of this strong balancing rhetoric, the ECJ has notably eschewed any

substantive balancing: it does not (explicitly) use balancing as a process in which it weighs

rights and interests to establish their relative order of priority. In particular, it does not

identify the underlying reasons that give these rights and interests their relative weight. The

Court, in other words, does not appear to balance anything. This observation is in itself

probably unsurprising. As I noted in the introduction, this use of the concept of fair balance

has been suggested to be mere window-dressing; a rhetorical device intended to bestow

constitutional validity on the Court’s interpretation. There are three context-specific

elements, however, that deserve further exploration, and that distinguish issues with this use

from ones in composite cases (discussed in the next section): how the ECJ avoids balancing;

why it might choose to do so; and the role balancing would fulfil.

The ECJ uses various strategies to avoid giving substantive balancing reasons. One,

paradoxically, is not to refer to balancing at all. In some cases, the Court simply stresses the

need to give full effect to the specific fundamental right that the norm in question intends to

safeguard. For instance, in Funke Medien the ECJ pointed out that the exception for reporting

on current events is aimed at favouring the rights to freedom of expression and of the press.

Accordingly, it settled on an interpretation of that exception as covering, in principle, the

publication by a newspaper website of a large cache of confidential government papers.

In other instances, the ECJ avoids balancing despite strongly relying on the notion that its

interpretation must strike a fair balance. The first way in which the ECJ avoids balancing in

these cases is brazen and obvious, by referring to the need to maintain a fair balance to justify

a particular outcome without further elaboration. In other words, it invokes the concept of

fair balance as a justification in itself, instead of as a process aimed at determining whether a

particular normative outcome is justified. For instance, in VG Bild-Kunst and Mircom, the ECJ

simply observed that if the uses under consideration were excluded from the scope of the

right of communication to the public, “the consequence would be that the need to safeguard

a fair balance … would be disregarded”.

A second balancing-avoidance technique relies on the one-sided determination that a certain

interpretation would be so detrimental to a particular right that it can never be justified (and

consequently no consideration of countervailing rights or interests, i.e. balancing, is

required).

This was the ECJ’s strategy in BY. The Court considered in that decision that if the

transmission of a work to a court as evidence in judicial proceedings were to be regarded as

“Fundamental rights in EU copyright law: an overview” in Rosati, The Routledge Handbook of EU Copyright Law

(2021), p. 25.

Funke Medien, at [73]-[75]. See also DR and TV2 Danmark (C-510/10) EU:C:2012:244, at [57] and Spiegel

Online (C-516/17) EU:C:2019:625, at [81].

VG Bild-Kunst (C-392/19) EU:C:2021:181, at [54] and M.I.C.M. ("Mircom") (C-597/19) EU:C:2021:492, at [58].

See also TU Darmstadt v Eugen Ulmer (C-117/13) EU:C:2014:2196, at [31], Spiegel Online (C-516/17)

EU:C:2019:625, at [82] and Constantin Film Verleih (C-264/19) EU:C:2020:542, at [37]. See, similarly, GS Media

(C-160/15) EU:C:2016:644, at [44]-[45].

This technique is more typically used in the composite context discussed below and is discussed in more detail

there.

a communication to the public requiring consent of the right holder, it would seriously

compromise the right to an effective judicial remedy. This consideration alone led the Court

to conclude that such an interpretation would be contrary to the idea of a fair balance.

The final technique used to avoid a substantive weighing of competing rights and interests

consists of rejecting a particular interpretation as being unnecessary for safeguarding a

particular right or interest, by holding that the alternative interpretation interferes less with

a countervailing right, while not materially affecting that right or interest in question. The ECJ

has used this strategy, for instance, in Pelham: in relation to taking a short sample from a

phonogram “used in a new work in a modified form unrecognisable to the ear”, it held that

viewing it as a reproduction, subject to right holder authorisation, would “fail to meet the

requirement of a fair balance”, because excluding this use from the scope of copyright

protection promotes the freedom of the arts while not interfering “with the opportunity

which the producer has of realising satisfactory returns on his or her investment”.

Therefore, such a use should not be considered a reproduction. Rejecting an interpretation

for being, in essence, Pareto-suboptimal

treats the question of which interpretation better

reconciles competing rights and interests as factual (one position can be improved without

harm to the other) rather than normative.

However, allowing right holders to control a

licensing market over small parts does increase their ability to obtain a satisfactory return on

investment, even if only to a limited extent. The pertinent question is, therefore, whether this

increase outweighs any detriment caused to the freedom of the arts. This analysis was

altogether absent. By suggesting that an outcome is a matter of choice between the least

restrictive of equally suitable means, the ECJ avoids what would admittedly be a complicated

analysis, from both a moral (what is fair?) and an economic (what is efficient?) perspective.

However, avoiding this analysis damages the credibility of the ruling.

2.2 Balance avoidance and the guise of objectivity

Avoiding normative argumentation might be one of the main reasons for the ECJ to shy away

from explicit balancing in this context. It has been suggested that by obscuring the underlying

reasons for their decisions, particularly when dealing with fundamental rights, courts try to

deny the political stakes involved.

In the case of copyright, a more explicit balancing of rights

BY (Preuve photographique) (C-637/19) EU:C:2020:863, at [33]. Cf. also Poland v Parliament and Council (Case

C-401/19) EU:C:2022:297, at [85]-[86].

Pelham and Others (C-476/17) EU:C:2019:624, at [35]-[38].

About balancing and Pareto-optimality, see, e.g., R. Alexy, " Constitutional Rights, Balancing, and Rationality"

(2003) 16 Ratio Juris 131, 135-136, G. Sartor, "The Logic of Proportionality: Reasoning with Non-Numerical

Magnitudes" 14 German L.J. 1409, 1438-1440 and J. Sieckmann, The Logic of Autonomy. Law, Morality and

Autonomous Reasoning (Oxford: Hart, 2012), p. 91-92.

See also Painer (C-145/10) EU:C:2011:798, at [134]-[137], DR and TV2 Danmark (C-510/10) EU:C:2012:244, at

[57] and Renckhoff (C-161/17) EU:C:2018:634, at [40]-[43].

Cf. C. Mak, Fundamental Rights in European Contract Law. A Comparison of the Impact of Fundamental Rights

on Contractual Relationships in Germany, the Netherlands, Italy and England (Alphen aan den Rijn: Wolters

Kluwer, 2008), p. 226-230.

and interests would require, to begin with, a genuine engagement with the controversial

question of which values underpin the right holder’s interest in broader protection, that is to

say, the (moral and/or economic) justification for copyright protection.

This is something

the ECJ has generally eschewed. Instead, it typically simply points to “the interests of

safeguarded by Article 17(2) of the Charter”, which must be balanced against the interests

and fundamental rights of users and the general interest.

However, the reference to

art.17(2) of the Charter, which requires that “intellectual property shall be protected”, rings

hollow for two reasons. First, the ECJ itself has held in Sky Österreich that the constitutional

right to property as guaranteed by art.17 only “applies to rights with an asset value creating

an established legal position under the legal system,”

meaning it is questionable whether

art.17 has anything to say about the content of rights granted by copyright or of the

limitations and exceptions to those rights (i.e. what those established legal positions are).

Second, the mere reference to art.17(2) says nothing about what that right would require as

a matter of principle, specifically the value whose promotion it would require. After all, the

protection of intellectual property should not be an end in itself.

Regardless of whether or not the interests of right holders find a direct basis in art.17(2), if

the balancing of competing rights and interests is to guide the definition of the contours of

property entitlement, the ECJ must first engage with the question of which goals or values

users and the general interest. By merely pointing to art.17(2) without elaboration, the ECJ

avoids this (highly) contentious (and political) issue. Only once it has done so, can the Court

consider the arguably even more difficult question of how to determine the relative weight

of the interest of right holders vis-à-vis other rights and interests.

Moral reasoning may play

an important role in this process: the weighting of the interest of right holders in extended

of art is likely to involve moral reasons, such as the perceived importance of rewarding

authors or of the autonomy of users.

This highlights that the use of balancing in this context

There is an abundance of literature on the subject. For an overview of justificatory theories of copyright (and

intellectual property more generally), see, e.g., R. Merges, Justifying Intellectual Property (Cambridge, Mass.,

USA: Harvard University Press, 2011).

GS Media (C-160/15) EU:C:2016:644, at [31], Renckhoff (C-161/17) EU:C:2018:634, at [41], Pelham and Others

(C-476/17) EU:C:2019:624, at [32], BY (Preuve photographique) (C-637/19) EU:C:2020:863, at [31], VG Bild-Kunst

(C-392/19) EU:C:2021:181, at [54], M.I.C.M. (C-597/19) EU:C:2021:492, at [58] and YouTube and Cyando (C-

682/18 and C-683/18) EU:C:2021:503, at [64].

Sky Österreich (C-283/11) EU:C:2013:28, at [34] (emphasis added). Cf. also, in respect of art.1 of the First

Protocol to the ECHR, e.g., Decision of the European Court of Human Rights (Grand Chamber), in the case of

Anheuser-Busch Inc. v Portugal, Appl. No. 73049/01, of 11 January 2007, at [65].

Cf. Alexander Peukert, “Intellectual property as an end in itself?” (2011) 33 Eur. Int. Prop. Rev 67.

The contentious nature of this analysis is illustrated by Pelham, in which the ECJ exceptionally did identify the

(less controversial) rationale for protection of the rights of phonogram producers (guaranteeing a satisfactory

return on investment) but nevertheless steered clear of an overt balancing of rights and interests.

On the connection between balancing and moral reasoning, see, e.g., Möller, “Proportionality” (2012) 10(3)

Int’l. J. Const. L. (I·CON) 709, 716-718.

is at least partly political, requiring some subjective determinations, which explains both why

the ECJ might shy away from such considerations and why the use of balancing is controversial

in the first place.

Paradoxically, however, by suppressing such explicit balancing considerations, the ECJ may

arguably only reinforce the argument that its reliance on balancing rhetoric would best be

abandoned altogether. One of the key arguments against judicial balancing is that no

coherent and objective framework exists for it; that it cannot proceed along rational

standards but instead depends on a judge’s preferences.

Concretely: balancing “expose[s]

judges as lawmakers”.

By using balancing terminology without making balancing explicit,

the Court may give the impression that it has something to hide and is obscuring the real

reasons for its decision. Explicit balancing, on the other hand, would at least force the Court

“to expose … [its] train of thought”

and realise some of the alleged redeeming qualities of

balancing. It is argued that balancing in fact contributes to the rationalisation of

argumentation.

It requires courts to be clear, coherent and transparent in their reasoning

as to why a certain normative argument prevails in a given set of circumstances. This is not to

say that the ECJ must adopt a more explicit balancing discourse in this context; the point is

rather that by couching its decisions in balancing without making this explicit, the Court

invites the criticism associated with balancing without attaining any of its supposed benefits.

It should either embrace balancing more whole-heartedly or abandon its rhetoric altogether.

2.3 The nature of balancing rhetoric

The question as to why the ECJ avoids explicit balancing is related to another issue: the

function that rights and balancing rhetoric performs in this context. Typically, this balancing

is associated with fundamental rights review as part of proportionality analysis. References

to fundamental rights and balancing can thus be understood as serving to exclude certain

interpretations for incompatibility with fundamental rights. This is consistent with the

premise that lower-ranking legislation should not be interpreted in a way that would render

it incompatible with higher order norms.

But balancing rhetoric in the context of

interpretation can also serve a second, more heuristic function: to determine the appropriate

meaning of ambiguous provisions in line with their purpose, by considering which outcome

Cf., e.g., M. Jestaedt, “The Doctrine of Balancing—its Strengths and Weaknesses” in M. Klatt

(ed), Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford: Oxford University Press, 2012), p. 152-

172.

Cf. J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (W.

Rehg trans.; Cambridge, Massachusetts: The MIT Press 1996), p. 259.

A. Stone Sweet & J. Mathews “Proportionality Balancing and Global Constitutionalism” (2008) 47 Columbia

Journal of Transnational Law 72, 76.

Barak, Proportionality (2012), p. 486.

Jestaedt, “The Doctrine of Balancing" in Klatt (ed), Institutionalized Reason (2012), p. 157. Cf. also, in the

context of copyright, X. Groussot, “Rock the KaZaA: Another Clash of Fundamental Rights” (2008) 45 C.M.L. Rev.

1745, 1761-1762.

E.g., Poland v Parliament and Council (C-401/19) EU:C:2022:297, at [70].

best reconciles the underlying competing normative arguments.

Such balancing exercises

are common in the process of application of open norms or standards,

but can also be used

to determine the meaning and scope of more specific concepts.

This second use of balancing

is more idealistic in nature and does not necessarily say anything about what is required or

prohibited by higher order norms (this type of balancing does not even necessarily concern

such norms). One could call this second form of balancing “optimisation balancing”, as

opposed to “review”, which is aimed at compliance with higher order norms.

In some decisions, rights and balancing rhetoric unquestionably serves the purpose of review

for compliance with the Charter. This is most clearly the case in BY, wherein the ECJ implied

that any other decision would violate the essence of the right to an effective judicial remedy.

In other cases, however, the nature of balancing rhetoric is far less clear. Cases such as Pelham

arguably concern fundamental questions about the interpretation of the law to achieve an

appropriate scope of protection or, as the Advocate General suggested in his Opinion in that

case, matters of fairness.

That is, the rights and balancing rhetoric in such cases might not

concern the question of compatibility with higher order norms, but rather reflect a desire to

arrive at an interpretation that best reconciles the underlying normative arguments (in

Pelham, ensuring an satisfactory return on investment versus freedom of art). If the premise

that balancing is in this context also (or even mainly) used in this way is accepted – recognising

in effect that the ECJ creates law by making real choices about the appropriate scope of

protection – it is arguably even more important that the ECJ “expose its train of thought” as

to why it opts for a broader or narrower scope of protection.

On a more practical level, there are at least three further reasons why it is important to

distinguish between review and optimisation balancing.

In the first place, this is relevant from the point of view of the potential “lock-in” of judicial

interpretations vis-à-vis the legislature. Where an interpretation is adopted or excluded as a

matter of review, meaning the outcome is seen as being required or prohibited by the

Charter, this insulates it against legislative change.

However, if an interpretation is adopted

simply because it is considered to be the best way of reconciling competing rights and

interests, the legislature is free to deviate from the interpretation without risking a violation

of higher order norms. Seen this way, the narrow interpretation of reproduction rights to the

detriment of right holder interests in Pelham and the like is not a matter of review, in respect

of which any lack of deference towards the legislature must be “defended” and the legislative

margin of discretion explained, as has been suggested;

it is rather a teleological

Cf. the position of the German Federal Constitutional Court, discussed below.

Cf. the examples discussed at footnotes 70-73.

Cf. Glawischnig-Piesczek (C-18/18) EU:C:2019:821, at [42]-[47] (concerning the scope of the prohibition of

general monitoring in art.15(1) of Directive 2000/31).

See above footnote 28 and accompanying text.

Cf. Opinion of AG Szpunar in Pelham and Others (C-476/17) C:2018:1002, at [97].

See the literature cited in footnote 11.

Garben, “Fundamental rights in EU copyright harmonization” (2020) 57 C.M.L. Rev. 1909, 1927 & 1929.

interpretation in line with the legislative purpose, wherein the Court itself determined which

outcome best reconciled competing rights and interests, and which the legislature is free to

overturn.

Second, considerations of the nature of balancing can also help us to understand and put in

perspective potential conflicts that might arise between the requirements of national

fundamental rights and those of EU law. Again, a case in point is Pelham. Before the

proceedings were referred to the ECJ by the German Federal Court of Justice, the German

Federal Constitutional Court (Bundesverfassungsgericht or BVerfG), also gave a ruling on the

case. After explicitly and carefully weighing the freedom of art versus the interest of

phonogram producers in protecting their intellectual property, the BVerfG reached an

outcome that allowed greater use of samples from protected phonograms by borrowing

artists than the subsequent decision by the ECJ did.

Accordingly, borrowing artists appear

to enjoy broader protection of their artistic freedom under German Basic Law than under the

Charter. Although the ruling by the BVerfG only concerned the interpretation of the German

that the German and EU legal orders may be on a “collision course”.

Such a clash of legal orders is absent, however, if both rulings are understood merely as

different assessments of how competing rights and interests are best reconciled, and not as

expressions of whether fundamental rights require or prohibit a certain outcome. Although

formally an act of review of a prior decision by the German Federal Court of Justice,

substantively the BVerfG's decision can well be understood in such idealistic terms. The

BVerfG has consistently held that an interpretation of ordinary law in light of the Basic Law

must not only avoid disproportionate limitations of the rights contained therein (i.e. not

violate those rights), it must also give preference to the outcome that ascertains conflicting

rights in the greatest possible respect when multiple interpretations are possible.

According

to the BVerfG, the German Copyright Act contained numerous ambiguous provisions that

could all be interpreted in a way which would allow the use under consideration.

If one

understands the BVerfG’s balancing exercise simply as an endeavour to resolve this

interpretative ambiguity by optimally weighing up conflicting rights and interests – something

the Federal Court of Justice had omitted – the threat of a constitutional conflict subsides. That

Unlike the ECJ, the BVerfG did not attach importance to the fact whether the sample was recognisable. See

German Federal Constitutional Court (First Senate), 31 May 2016, 1 BvR 1585/13 – Metall auf Metall, English

translation published in IIC 2017, p. 343, at [91ff].

G. Westkamp, “Two Constitutional Cultures, Technological Enforcement and User Creativity: The Impending

Collapse of the EU Copyright Regime?” (2022) 53 IIC 62.

German Federal Constitutional Court (First Senate), 31 May 2016, 1 BvR 1585/13 – Metall auf Metall, English

translation published in IIC 2017, p. 343, at [82].

German Federal Constitutional Court (First Senate), 31 May 2016, 1 BvR 1585/13 – Metall auf Metall, English

translation published in IIC 2017, p. 343, at [110].

is, the narrower enjoyment of artistic freedom under EU law does not offend the German

Basic Law.

Third, the distinction between what I called review and optimisation is important in terms of

the potential direct effect of EU law. An example is the interpretation of limitations and

exceptions. In respect of these, national laws tend to include requirements for their

application that are not explicitly found in EU secondary law. For example, with regard to the

quotation exception, some Member State laws explicitly include additional requirements,

such as that the idea of the quoted work must be conveyed correctly

or that the quotation

does not pursue a profit-making purpose

If such a condition for application of an

exception is rejected by the ECJ on the grounds that imposing it does not strike a fair balance,

it matters whether this is a statement denoting incompatibility of that requirement with the

Charter, which can produce horizontal direct effect, or simply a consideration as to how

competing rights and interests are best weighed up in secondary law, which cannot produce

horizontal direct effect. Specifically, this means that if a requirement is rejected exclusively in

the context of the interpretation of secondary law (even if interpreted in light of fundamental

rights in the optimising sense), national courts cannot outright disapply that requirement in

proceedings between private parties if national law cannot otherwise be interpreted in

conformity with EU law (which may not be the case with explicit statutory requirements).

If, on the other hand, a condition is also considered contrary to the Charter as such, this opens

the door to its disapplication on that basis.

Any conflict would be mitigated anyway because the BVerfG accepts that fully harmonised provisions are only

subject to review on the basis of EU fundamental rights, provided that the level of protection is essentially

equivalent to that regarded as indispensable under the Basic Law and guarantees the essence of rights. See

German Federal Constitutional Court (First Senate), 6 November 2019, 1 BvR 276/17 – Right to be Forgotten II,

at [47]-[48].

§19(1) of the Estonian Copyright Act of 11 November 1992.

Art.10(1) of the Luxembourg Law of 18 April 2001 on copyright, related rights and databases.

See further C. Sganga et al., "Copyright flexibilities: mapping and comparative assessment of EU and national

sources" (2023) retrieved from <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4325376>, p. 487

See, e.g., Association de médiation sociale (C-176/12) EU:C:2014:2 at [36]-[39].

See, e.g., Egenberger (C-414/16) EU:C:2018:257, Bauer (Joined Cases C-569/16 and C-570/16) EU:C:2018:871,

Max-Planck-Gesellschaft zur Förderung der Wissenschaften (C-684/16) EU:C:2018:874 and IR (C-68/17)

EU:C:2018:696.

3. Balancing and the Charter in composite cases

The role of the Charter and of balancing rhetoric in so-called composite cases is slightly

different than in the domestic cases discussed in the previous section. In composite cases,

(secondary) EU law does not fully determine the outcome. These cases arise, for instance,

where EU secondary legislation includes ambiguous norms, in particular open norms or

standards, that leave discretion to Member States. In these cases, it may only be at the stage

of application of national law implementing those norms that national courts must strike a

balance between competing rights and interests in the concrete circumstances of the case.

In striking that balance, national courts remain free to apply national fundamental rights,

“provided that the level of protection provided for by the Charter, as interpreted by the Court,

and the primacy, unity and effectiveness of EU law are not thereby compromised”.

Balancing can thus play a double role in this composite setting: it can be used by national

courts in the exercise of discretion left to Member States by EU secondary legislation; and by

the ECJ in setting out the boundaries of that discretion. An essential question is how exactly

the Charter relates to national fundamental rights in the context of these balancing exercises

by national courts. In particular, is the Charter a source of normative considerations that

determine the relative weight of specific rights in case-by-case balancing undertaken by the

national court when applying non-fully harmonised national norms? If the Charter provides

the criteria that are relevant to these balancing exercises, there is a serious risk that Member

States are deprived of the discretion left to them by secondary EU legislation.

This section explains that the primary reason for the ECJ to avoid balancing in this context in

fact relates to respecting Member State discretion: by foregoing a balancing exercise and

applying a strict minimum level of protection itself, it allows the national courts to balance as

they deem fit. Although this standard is an understandable expression of restraint, its

appropriateness is called into question – not because of the alleged lack of guidance that this

standard encapsulates, as has been suggested, but because it contains an unworkable

standard that arguably offers insufficient protection to Charter rights. This section begins with

an illustration of how discretion in secondary legislation allows national courts to balance

rights and interests to determine the outcome of individual cases.

3.1 Member State discretion and balancing in individual cases

In the copyright context, there are two notable areas where the acquis leaves discretion to

Member States and where, consequently, EU and national fundamental rights overlap:

Cf. Lindqvist (C-101/01) EU:C:2003:596, at [85].

Melloni (C-399/11) EU:C:2013:107, at [60] and Åkerberg Fransson (C-617/10) EU:C:2013:105, at [29], of the

same date.

Cf. Spaventa, “Should We ‘Harmonize’ Fundamental Rights in the EU?” (2018) 55 C.M.L. Rev. 997, 1022.

limitations and exceptions, and remedies. For instance, the provision permitting an exception

for the use of works in connection with reporting on current events requires that the use be

“justified by the informatory purpose”.

The ECJ has clarified that this flexible norm gives

Member States a “significant discretion allowing them to strike a balance between the

relevant interests”.

Similarly, in respect of remedies, EU law does not prescribe when

national courts must grant a particular remedy, only that they are in a position to do so in

appropriate circumstances.

What constitutes such circumstances is largely a matter of

national law and of appreciation by national courts.

When deciding on the applicability of limitations or exceptions, or on the appropriateness of

a particular remedy in the concrete circumstances of the case, it is not unusual that national

courts resolve the case by carefully weighing conflicting rights and interests against each

other. For instance, in the ultimate resolution of the national proceedings that led to the ECJ

ruling in Funke Medien, discussed above,

the German Federal Court of Justice balanced the

rights to freedom of expression and of the press against the right to property, all as protected

by the German Basic Law, to determine whether the publication in connection with reporting

of confidential military status reports drawn up by the government (in respect of which the

German state tried to enforce copyright) was justified by the informatory purpose. The Court

concluded that the interest in the publication of the documents outweighed both the interest

of the right holder to control the exploitation of the work, and the interest of the author in

preventing first publication of the work. It attached particular importance to the fact that the

documents concerned a matter of general interest, while, conversely, the work did not lend

itself to exploitation, meaning the rights and interests of the right holder and author were not

seriously affected.

Similar case-by-case balancing is used to determine whether a particular remedy should be

granted. For instance, the District Court of Amsterdam relied on balancing when it rejected

the request for an injunction by the Anne Frank Fonds (a Swiss foundation that administers

the copyright in the works of Anne Frank) enjoining the reproduction of the original

manuscripts of Anne Frank’s diaries without authorisation for the purpose of scientific

research by the Anne Frank Stichting (a Dutch foundation that maintains the Anne Frank

House in Amsterdam) and the Royal Netherlands Academy of Arts and Sciences. The Court

concluded that the freedom of science outweighed the interest of the Anne Frank Fonds in

Art.5(3)(c) InfoSoc Directive.

Funke Medien NRW (C-469/17) EU:C:2019:623, at [43] and Spiegel Online (C-516/17) EU:C:2019:625, at [28].

Cf. D. Jongsma, “Fundamental rights as external constraints on copyright law: horizontal effect of the EU

Charter after Funke Medien and Spiegel Online” (2020) 15 JIPLP 1003, 1007.

Cf. Recital 23 in the Preamble to the Enforcement Directive and Recital 59 in the Preamble to the InfoSoc

Directive.

See the discussion at footnote 25.

German Federal Court of Justice (First Civil Senate), 30 April 2020, I ZR 139/15 – Afghanistan Papiere II, at [52]-

[55]. See also, e.g., German Federal Court of Justice (First Civil Senate), 30 April 2020, I ZR 228/15 –

Reformistischer Aufbruch II, at [61]-[67].

an unfettered enjoyment of its property right.

In particular, it considered that the interest

of right holders to decide which scientific research into their works is conducted is not an

interest protected by copyright.

Balancing is also commonly used to determine whether

certain injunctions must be granted against intermediaries, for instance by weighing the right

to property against the freedom to conduct a business of intermediaries and the freedom of

information of the public, in determining whether or not to grant injunctions requiring the

blocking of infringing content or websites.

This type of balancing by national courts is generally aimed at establishing which outcome

does the most (or more) justice to the rights and interests involved. It typically does not

concern an act of review to determine whether a particular outcome is required or prohibited

by fundamental rights, such as those contained in the Charter. The question is whether and

to what degree the Charter might guide such balancing exercises in the context of the

application of composite norms in the concrete circumstances of the case. It has been

suggested that where two Charter rights conflict, the outcome reached when balancing

parallel national fundamental rights is replaced by the outcome reached under the Charter,

because the outcome will always be to the detriment of one of the Charter rights concerned.

This assumes rights can only be balanced one (optimal) way, while as standards of review they

may, in reality, permit a variety of outcomes.

Alternatively, even if the impact of the Charter

may not go so far as to impose a particular outcome, the question is whether the Charter

might prescribe specific normative considerations that national courts must take into account

when they strike a balance in the concrete circumstances of the case. For instance, are

national courts free to determine which factors are relevant when determining the relative

weight of the exploitative interest of the author, as the German and Dutch national courts

did?

The European Court of Human Rights, which also operates in a composite setting, has

identified such “criteria relevant for the balancing exercise”, notably in cases where national

courts balance the right to respect for private life against the right to freedom of information

For an argument that such balancing is still possible even after the ECJ appeared to close the door on the use

of fundamental rights as so-called external restraints on copyright law in Funke Medien and Spiegel Online, see

Jongsma, “Fundamental rights as external constraints on copyright law” (2020) 15 JIPLP 1003.

District Court of Amsterdam 23 December 2015, NL:RBAMS:2015:9312 (Anne Frank Fonds/Anne Frank

Stichting & KNAW), at [4.8]-[4.9]. See also, e.g., District Court of Amsterdam 10 June 2015,

NL:RBAMS:2015:3517, at [4.11] and Court of Appeal of Amsterdam 6 February 2018, NL:GHAMS:2018:395, at

[3.8] (Anne Frank Fonds/Anne Frank Stichting), concerning the display by the Anne Frank Stichting of letters by

Otto Frank without authorization (right to freedom to information was considered not to outweigh the interest

in enforcement of copyright).

See, e.g., the case law discussed by C. Geiger & E. Izyumenko, “The Role of Human Rights in Copyright

Enforcement Online: Elaborating a Legal Framework for Website Blocking” (2016) 32 Am. U. Int’l L. Rev. 43.

Cf. T. Dreier, “The ECJ, EU Fundamental Rights and the Limitations of Copyright” (2020) 69(3) GRUR

International 223, 224.

On discretion and balancing, see, e.g., Alexy, A theory of constitutional rights (2002), p. 394-414 and Rivers,

“Proportionality, Discretion and the Second Law of Balancing” in Pavlakos (ed), Law, Rights and Discourse (2007),

p. 170-187.

in cases concerning publications by the media about the private lives of individuals.

As a

result, when striking a balance in the concrete circumstances of the case, national courts must

take account of the balancing criteria that derive from the European Convention on Human

Rights concerning the relative weight of the competing rights (e.g. contribution to debate of

general interest, how well-known is the person concerned, consequences of the publication,

etc.), in addition to any criteria deriving from national fundamental rights sources. This means

national courts have had to adapt their approach to balancing the conflicting rights in such

cases.

3.2 The requirement to “strike a fair balance” and the level of protection provided

for by the Charter

In the copyright context, there has been intensive debate on the balancing of Charter rights

in individual cases by national courts, specifically in the context of remedies against

intermediaries. The origin of this debate is found in the ECJ’s case law on the compatibility of

specific injunctions against intermediaries with EU fundamental rights, and in its use of the

concept of fair balance. In this context, the ECJ first introduced this concept in its Promusicae

ruling, stating that Member States must “rely on an interpretation of the directives which

allows a fair balance to be struck”.

In subsequent decisions, the concept has functionally

been used as a standard against which Member State action is to be evaluated. That is, the

ECJ has clarified that when adopting enforcement measures “national authorities and courts

must strike a fair balance [of rights and interests]”.

This instruction to strike a fair balance has nevertheless led to the widespread assumption

that national courts must undertake a precise balancing of conflicting Charter rights and other

interests, on a case-by-case basis, to determine whether a certain remedy must, on balance,

be granted or not.

The ECJ’s case law has been criticised for not providing sufficient guidance

on how this balance should be struck.

Even when it is recognised that this lack of guidance

E.g. Decision of the European Court of Human Rights (Grand Chamber), in the case of Von Hannover v.

Germany (no. 2), Appl. No. 40660/08 and 60641/08, of 7 February 2012, at [108]-[113].

Cf. J.J. Märten, “Personality Rights and Freedom of Expression: A Journey through the Development of German

Jurisprudence under the Influence of the European Court of Human Rights” (2012) 4 Journal of Media Law 333.

Promusicae (C-275/06) EU:C:2008:54, at [68].

See, e.g., Scarlet Extended v SABAM (C-70/10) EU:C:2011:771, at [45].

E.g. Angelopoulos, “Sketching the Outline of a Ghost” (2015) retrieved from

<https://ssrn.com/abstract=2932245>, p. 19, L. Azoulai, "The Case of Fundamental Rights: A State of

Ambivalence", in H.-W. Micklitz & B. De Witte (Eds), The European Court of Justice and the Autonomy of the

Member States (Antwerp: Intersentia, 2012), p. 212, M.L. Montagnani & A. Trapova, “Copyright and Human

Rights in the Ballroom: A Minuet between the United States and the EU” (2020) 46(3) Mitchell Hamline Law

Review 613, 651, J.B. Nordemann, “Website Blocking under EU Copyright Law” in E. Rosati (Ed), Routledge

Handbook of EU Copyright Law (London and New York: Routledge, 2021), p. 368-369, Oliver & Stothers,

“Intellectual property under the Charter” (2017) 54 C.M.L. Rev. 517, 558 and J. Schovsbo, “Constitutional

Foundations and Constitutionalization of IP Law - A Tale of Different Stories?” (2015) retrieved from

<https://papers.ssrn.com/abstract=2701227>, p. 7.

See the literature cited in footnote 16.

may be intentional, to respect national competence, the instruction appears to be understood

as process-based, requiring national courts to balance competing rights and interests in the

concrete circumstances of the case, and any subsequent analysis is principally concerned with

the question of how this balance is to be struck.

Accordingly, most of this debate has centred

on identifying the normative considerations deriving from the Charter that must guide the

(optimisation) balancing by national courts, instead of on questions about the nature of this

instruction and the appropriate intensity of review by the ECJ.

However, the standard of review applied in these cases by the ECJ not only reveals a great

reluctance to determine how fundamental rights must be balanced in composite cases or to

even identify specific balancing criteria, but also implies that it is debatable whether the ECJ

really expects national courts to carefully balance Charter rights in these composite cases

every time. The standard of review is one of extreme restraint. Specifically, apart from

principally factual considerations concerning the suitability and necessity of certain measures,

the ECJ has limited itself to ensuring that the essence of rights is respected. A requirement

that the “essence” or “core” of a right be respected is not uncommon in the context of

fundamental rights review. In the case of the EU, this requirement is laid down in art.52(1) of

the EU Charter. The theoretical nature of the concept of essence is contested,

as is its

practical use.

The concept of essence is arguably best conceptualised as prohibiting

interferences with rights that are so serious that conceiving of justifications for them is as

good as impossible.

As such, it merely guarantees a minimum level of protection.

By itself,

it does not prohibit serious interferences (that fall short of a violation of the essence) for

which there exists no reasonable justification in the given circumstances.

To be fair, this reliance on one-sided checks as to whether the core of rights is respected may

not have been immediately obvious. In Scarlet Extended v SABAM and SABAM v Netlog, the

Cf. Angelopoulos, “Sketching the Outline of a Ghost” (2015) retrieved from

<https://ssrn.com/abstract=2932245>, p. 25 and Synodinou, “Intermediaries' liability for online copyright

infringement in the EU” (2015) 31 Computer Law & Security Review 57, 59.

Disagreement concerns in particular the answer to the question whether the ‘essence’ of a right can be defined

independently (the ‘absolute’ theory) or only in relation to other rights and interests, that is in terms of

proportionality (the ‘relative’ theory). See, e.g., O. Scarcello, “Preserving the ‘essence’ of fundamental rights

under article 52(1) of the Charter: a Sisyphean task?” (2020) 16(4) European Constitutional Law Review 647, as

well as the sources cited in the following two footnotes.

See, e.g., J. Rivers, “Proportionality and variable intensity of review” (2006) 65(1) Cambridge L.J. 174, 187

(“The concept of ‘very essence’ is practically useless.”) and T. Tridimas & G. Gentile, “The Essence of Rights: An

Unreliable Boundary?” (2019) 20(6) German L.J. 794, 804 (“The case law suggests that [distinguishing the

essence of a right from its periphery] is a near impossible task.”).

Cf. Alexy, A theory of constitutional rights (2002), p. 192-196, Barak, Proportionality (2012), p. 497-498, M.

Brkan, “The Concept of Essence of Fundamental Rights in the EU Legal Order: Peeling the Onion to its Core”

(2018) 14 Int’l. J. Const. L. (I·CON) 332, 363, T. Ojanen, “Making the Essence of Fundamental Rights Real: The

Court of Justice of the European Union Clarifies the Structure of Fundamental Rights under the Charter” (2016)

12(2) E.C.L. Review 318, p. 322, Rivers, “Proportionality and variable intensity of review” (2006) 65(1) Cambridge

L.J. 174, 184-187 and G. van der Schyff, “Cutting to the core of conflicting rights: The question of inalienable

cores in comparative perspective” in E. Brems (ed), Conflicts Between Fundamental Rights (Antwerp: Intersentia,

2008), p. 133.

Cf. Tridimas & Gentile, “The Essence of Rights” (2019) 20(6) German L.J. 794, 815.

ECJ held that an injunction essentially requiring intermediaries, at their own expense and for

an unlimited period of time, to filter all communications passing through their networks for

between competing fundamental rights because it would result in a serious infringement of

the freedom to conduct a business (art.16 EU Charter). It did so without considering the

importance of that injunction to, for instance, the right to (intellectual) property (art.17(2) EU

Charter).

Only in later decisions did the ECJ more explicitly spell out that “a measure which

results in serious infringement of a right protected by the Charter is to be regarded as not

respecting the requirement that such a fair balance be struck between the fundamental rights

which must be reconciled”.

In other words, a serious infringement equals a violation of the

essence of a right, as an infringement that can never be justified.

Accordingly, the ECJ has

also held that EU law precludes both a rule of national law that unconditionally permits banks

to invoke banking secrecy to refuse the divulgation of personal data of alleged infringers,

and a rule that permits the owner of an Internet connection to escape copyright liability by

alleging other family members had access to that connection without specifying the how and

when of that access,

because they seriously infringe the rights to intellectual property and

to an effective remedy (art.47 EU Charter).

These findings of serious infringement

automatically led to the conclusion that the Charter was violated; the ECJ did not consider the

importance of such rules to the competing right to protection of personal data (art.8 EU

Charter) or the right to respect for private and family life (art.7 EU Charter), respectively.

In other decisions, where the ECJ concluded the Charter was not infringed, the Court

contented itself with the observation that the core of rights was respected.

That is, it did

not entertain the question of whether the measure under consideration was balanced

(proportionate stricto sensu). In Mircom, the Court held that granting an order requiring an

internet access provider to disclose the names and addresses of alleged infringers to right

holders “is consistent with the objective of striking a fair balance”, because it does not create

a serious infringement of the right to protection of personal data (art.8 EU Charter). The Court

did not ask whether that infringement was commensurate with the importance of the

purpose pursued, even if the infringement of art.8 was less than “serious”.

Similarly, in

Telekabel and McFadden, concerning the compatibility with the Charter of certain injunctions,

the ECJ did not ascertain whether the burdens imposed on the affected fundamental rights

Scarlet Extended v SABAM (C-70/10) EU:C:2011:771, at [41]-[49] and SABAM v Netlog (C-360/10)

EU:C:2012:85, at [39]-[47].

Coty Germany, at [35] and Bastei Lübbe, at [46].

Cf. Tridimas & Gentile, “The Essence of Rights” (2019) 20(6) German L.J. 794, 808.

Coty Germany (C-580/13) EU:C:2015:485, at [36]-[41].

Bastei Lübbe (C-149/17) EU:C:2018:841, at [51]-[52].

Cf., for an alternative view of these cases as constituting, in essence, optimisation, M. Husovec, “How Will the

European Patent Judges Understand Proportionality?” (2020) 60 Jurimetrics Journal 383, 385.

Notably, in Bonnier Audio (C-461/10), at [58]-[60] the ECJ was even more succinct when it concluded that

because national legislation allowed the national court to weigh conflicting rights and interests before ordering

disclosure of personal data of alleged copyright infringers, it was likely to strike a fair balance.

M.I.C.M. ("Mircom") (C-597/19) EU:C:2021:492, at [120]-[121].

were justified in light of the contribution to the aim pursued, but instead concluded that the

measures under consideration complied with EU fundamental rights, given that they were

both suitable and necessary to achieve the aim pursued and respected the essence

of the

affected fundamental rights.

Finally, in YouTube, the ECJ sanctioned a national rule that

made the granting of an injunction against an intermediary whose services are used for

intermediary. The ECJ held that such a rule was not incompatible with a fair balance because

it did not render enforcement altogether impossible.

Because the ECJ foregoes a balancing (proportionality stricto sensu) analysis, the “level of

protection provided for by the Charter, as interpreted by the Court” is low. By largely

accepting any measure that respects the essence of rights, the ECJ treats as acceptable

measures that might severely limit the fulfilment of fundamental rights regardless of whether

those limitations can be justified. Notably, in the cases in which the Court did not find a

violation of the Charter, it generally did not require any further proportionality analysis to be

carried out by the national court, either. That is, the Court prescribed the outcome of the

assessment as to the compatibility of a particular remedy with the Charter, without requiring

any further determinations by the national court.

The only exception in this respect is

YouTube, where the Court required that the national court ascertain that applying the

condition in question does not “cause disproportionate damage to the right holder”.

If the level of protection provided for by the Charter is largely tied to respect for the essence

of rights, this casts at least some doubt on the understanding that “striking a fair balance”

always presupposes balancing. After all, when national law strikes a fair balance merely by

respecting the essence of rights, no balancing is involved. This understanding of the concept

of fair balance as not necessarily involving balancing is consistent with its context-specific

origin in the case law of the European Court of Human Rights.

100

That court also uses the

concept to determine the proportionality of state conduct, taking account of their “margin of

appreciation”.

101

Importantly, the notion that states must strike a fair balance does not

require them to strike the fairest or optimal balance in order to comply with the Convention.

In Telekabel, the ECJ referred to the “very substance” of the freedom to conduct a business, which is used

interchangeably with the term “essence”. See Tridimas & Gentile, “The Essence of Rights” (2019) 20(6) German

L.J. 794, 802.

UPC Telekabel Wien (C-314/12) EU:C:2014:192, at [51]-[54] and McFadden (C-484/14) EU:C:2016:689, at [91]-

[92].

Youtube and Cyando (C-682/19 and C-683/19) EU:C:2021:503, at [139]-[140]. On the essence of the right to

intellectual property, see also the case law cited in footnote 107.

On these so-called "outcome cases" (vs. "guidance" and "deference cases"), see T. Tridimas, "Constitutional

review of Member State action: The virtues and vices of an incomplete jurisdiction" (2011) 9 I•CON 737.

Youtube and Cyando (C-682/19 and C-683/19) EU:C:2021:503, at [141].

100

It can be traced to the case law of the European Court of Human Rights from Promusicae (C-275/06)

EU:C:2008:54 through Lindqvist (C-101/01) EU:C:2003:596 and Connolly v Commission (C-274/99 P)

EU:C:2001:127.

101

Cf. A. Mowbray, “A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human

Rights” (2010) 10 Human Rights Law Review 289, 308.

Rather, they must comply with the (minimum) standard of protection of fundamental rights

offered by the Convention.

102

In other words, the requirement to strike a fair balance is

principally an instruction to ensure that the outcome obtained under national law respects a

certain standard. Whether this outcome is obtained by balancing on a case-by-case basis or

in another way is, in principle, immaterial as long as it respects that standard (i.e. the level of

protection provided for by the Charter). Where this outcome need merely respect the essence

of rights, balancing is altogether unnecessary.

The more important lesson to learn from the ECJ’s limited review of the compatibility of

national measures with EU fundamental rights, particularly its avoidance of substantive

balancing, is that where national law does permit or require case-by-case (optimisation)

balancing, the Charter does not prescribe any balancing considerations related to the

circumstances affecting the relative weight of the rights and interests to be balanced. By

omitting a proportionality stricto sensu test, the ECJ avoids identifying the factors that give

competing rights and interests their relative weight. As a result, national courts appear largely

free to determine how to balance conflicting rights and interests in individual cases when they

apply composite norms (provided that the essence of affected rights is respected).

103

This

reluctance to identify balancing considerations makes sense, both given the subsidiary nature

of fundamental rights protection offered by the Charter in such cases, and for procedural

economic reasons.

104

Nevertheless, in terms of review for compliance with the Charter, the

ECJ’s approach is not without issues, as the next section will demonstrate.

3.3 The questionable role of the concept of essence

Although the degree of restraint that the ECJ’s reliance on the concept of essence

encapsulates is understandable, its prudence can be questioned. As I have already

mentioned, an initial problem is that it is doubtful whether the essence of rights can be

abstractly defined with sufficient clarity and precision as to be helpful.

105

Moreover, where it

encapsulates the main standard of review, there is a risk that its boundaries are stretched to

achieve desirable outcomes. Arguably, this has occurred in respect of the right to intellectual

102

Cf., e.g., Decision of the European Court of Human Rights (Grand Chamber), in the case of S.H. and Others v

Austria, Appl. No. 57813/00, of 3 November 2011, at [106]. See also J. Christoffersen, "Straight Human Rights

Talk – Why Proportionality does (not) Matter" (2010) retrieved from <https://scandinavianlaw.se/pdf/55-

1.pdf>, p. 43 ("The Contracting Parties simply have a right under international law to strike a less than optimal

balance ... This flows from the minimum nature of the international standards protected by the ECHR.").

103

For an indication that this freedom extends to the application of limitations and exceptions, see Deckmyn and

Vrijheidsfonds (C-201/13) EU:C:2014:2132, at [27]-[28], where the ECJ held that the application of the parody

exception in a particular case "must strike a fair balance" but deliberately did not suggest any balancing criteria.

Notably, the parody exception is arguably not a composite norm, which suggests that even when discretion is

not inherent in secondary law, national courts are left a certain freedom to strike a balance in individual cases.

104

Cf. Dreier, “The ECJ, EU Fundamental Rights and the Limitations of Copyright” (2020) 69(3) GRUR International

223, 224.

105

See footnotes 83-85 and accompanying text.

property.

106

Specifically, it appears that the ECJ considers the essence of this right to be

violated if a particular right holder is deprived of any opportunity to enforce their rights, for

instance by being denied any possibility to identify infringers or to put an end to

infringements.

107

Such a subjective understanding of the essence is over-inclusive.

108

Consequently, logically insoluble rights conflicts may arise where unconditional rights claims

overlap. It appears the ECJ has already worked itself into such a predicament. Given that

identification of online infringers is often only possible on the basis of their IP address,

Member States arguably must enable retention of and access to IP addresses and associated

personal data for purposes of copyright enforcement, if enforcement is not otherwise

possible.

109

However, in relation to the rights to privacy and respect for personal data, the ECJ

has held that the retention by internet access providers of traffic data when they are no longer

needed for the purpose of the transmission of a communication results in a serious

interference with those rights,

110

and that as far as the general and indiscriminate retention

of IP addresses is concerned “only action to combat serious crime, the prevention of serious

threats to public security and the safeguarding of national security are capable of justifying

that interference”.

111

Member States may thus be caught in a quandary between the right to

intellectual property and the right to privacy.

112

The only resolution of this conflict is the

adoption of a different standard in respect to at least one of these rights.

113

This illustrates

that the current approach invites ad hoc adjudication, in which adopted standards must

eventually be changed or even abandoned.

A second problem with the ECJ’s approach is more fundamental: a review that is largely

limited to an essence check does not, as such, prohibit other (less serious) interferences with

fundamental rights, for which there may exist no reasonable justification in the given

circumstances. Consequently, Charter rights are transformed into ultimate minimum norms,

instead of human rights values that deserve the greatest possible respect.

114

This risks

trivialising rights, by treating “intolerable interferences” with fundamental rights that do not

106

Cf. Mylly, “Proportionality in the ECJ's Internet Copyright Case Law” in Bernitz et al. (eds), General Principles

of EU Law and the EU Digital Order (2019), p. 277

107

See Coty Germany (C-580/13) EU:C:2015:485, at [36]-[41], Bastei Lübbe (C-149/17) EU:C:2018:841, at [51]-

[52] and Youtube and Cyando (C-682/19 and C-683/19) EU:C:2021:503, at [140]. See also, in less clear terms,

McFadden (C-484/14) EU:C:2016:689, at [98].

108

Cf. Tridimas & Gentile, “The Essence of Rights” (2019) 20(6) German L.J. 794, p. 804.

109

See the Opinion of AG Szpunar in M.I.C.M. (C-597/19) EU:C:2020:1063, at [97].

110

E.g. Tele2 Sverige (C-203/15 and C-698/15) EU:C:2016:970, at [100] and La Quadrature du Net and Others (C-

511/18) EU:C:2020:791, at [140].

111

La Quadrature du Net and Others (C-511/18) EU:C:2020:791, at [156]

112

See also the Opinion of AG Szpunar in M.I.C.M. (C-597/19) EU:C:2020:1063, at [103].

113

As suggested by the Opinion of AG Szpunar in La Quadrature du Net and Others (personal data and lutte

contre la contrefaçon) (Case C-470/21) EU:C:2022:838, in which the ECJ must confront precisely this

inconsistency in its fundamental rights case law. In his second Opinion in these proceedings (EU:C:2023:711),

AG Szpunar proposes a solution which he believes reconciles both lines of case law. Arguably, this approach

would still require the ECJ to relinquish the position it took in La Quadrature du Net as cited at footnotes 110

and 111. These proceedings were pending before the Full Court of the ECJ at the time of writing.

114

Cf. R. Alexy, “Constitutional Rights and Proportionality” (2014) 22 Revus: Journal for Constitutional Theory

and Philosophy of Law 51, 59.

qualify as a violation of their essence (or as a “serious infringement”) as acceptable, regardless

of whether such interferences are justifiable.

115

Telekabel and McFadden, in which the

respective AGs concluded that the measures under consideration did violate EU fundamental

rights following a more complete proportionality analysis – thus highlighting the problematic

character of those measures – illustrate the limited protection the ECJ’s approach affords

Charter rights. It is therefore debatable whether the ECJ’s approach in this context can be

qualified as entailing a “full proportionality analysis”

116

or even as “taking proportionality

seriously”

117

The ECJ has received harsh criticism for similarly omitting a proportionality stricto sensu

analysis in Achbita, considering the question of whether employers can prohibit the wearing

of mandated religious apparel.

118

Decisions such as these can be contrasted with others, in

which the ECJ adopted a stricter approach to the review of the exercise of discretion left to

Member States in secondary legislation.

119

Interestingly, the intrinsic importance of the rights

concerned may not be the primary factor determining the approach to the review of Member

State action.

120

Instead, the distinguishing factor appears to be that composite copyright

cases and those such as Achbita concern horizontal scenarios: proceedings between private

parties. These are not unlikely to require a fact-specific balancing between competing

fundamental rights at the national level to determine which party prevails.

121

By omitting any

balancing from its review, the ECJ ensures that the identification of balancing criteria is

entirely left to national courts. As I have already suggested, this makes sense from the point

of view of procedural economy and avoids harmonisation through the application of the

Charter. However, it comes at the cost of protection of Charter rights. The question is whether

this approach really strikes the right balance between safeguarding Charter rights, especially

where they may be seriously compromised, and enabling constitutional pluralism.

The problem is, of course, that the identification of an approach that both entails a

meaningful standard of review and respects the freedom of Member States to apply national

standards of fundamental rights protection is far from easy. General suggestions for an ECJ

approach to fundamental rights adjudication have focused, for instance, on the margin of

appreciation doctrine developed by the European Court of Human Rights as a potential source

115

See Opinion of AG Cruz Villalón in UPC Telekabel Wien (C-314/12) EU:C:2013:781, at [83]-[90] and Opinion of

AG Szpunar in McFadden (C-484/14) EU:C:2016:170, at [137]-[147]. Cf. also Bastei Lübbe (C-149/17)

EU:C:2018:841, at [53], in which the ECJ’s only consideration in respect of the right to respect for family life was

that Member States are permitted to prevent “what was regarded as an intolerable interference with family

life”, but only if right holders have another effective remedy at their disposal.

116

Teunissen, “The balance puzzle” (2018) 40(9) Eur. Int. Prop. Rev. 579, 592

117

Sganga, “A decade of fair balance doctrine, and how to fix it” (2019) 41(11) Eur. Int. Prop. Rev. 683, 685

118

G4S Secure Solutions (“Achbita”) (C-157/15) EU:C:2017:203, lambasted by J. Weiler, “Je Suis Achbita!” (2017)

28 European Journal of International Law 989, 997.

119

See, e.g., Tele2 Sverige (C-203/15 and C-698/15) EU:C:2016:970, at [101]-[107] and Centraal Israëlitisch

Consistorie van België and Others (C-336/19) EU:C:2020:1031, at [75]-[78].

120

Compare the approach in Achbita with that in Centraal Israëlitisch Consistorie van België and Others, both

concerning the right to freedom of religion.

121

See also Google (Territorial scope of de-referencing) (C-507/17) EU:C:2019:772, at [72].

of inspiration.

122

Elsewhere I have rudimentarily outlined a possible method for the specific

context of remedies, which would require the ECJ to at least consider the degree of

interference with the rights affected, but would also allow substantial normative discretion

to Member States and their courts as to whether the purpose pursued is capable of justifying

that interference, especially where interferences are not particularly serious.

123

Inevitably,

this would entail some identification of normative balancing criteria, but only to clarify the

boundaries imposed by the Charter, while leaving any determination of a case-specific

balance, in particular one weighing national fundamental rights, to national courts.

Alternatively, the ECJ could adopt a more procedural method of deference, as it has done in

its free movement case law, by requiring that national courts conduct a full proportionality

analysis to review for compliance with Charter rights without necessarily providing detailed

guidance as to how that proportionality analysis must be carried out.

124

YouTube could be

construed as a tentative first step in this direction. This is not the place to further develop

either approach. A main point of emphasis is that the debate about the role of balancing in

composite cases should keep in mind that it may involve two distinct types of balancing: case-

specific balancing by national courts to determine the outcome in individual cases when

exercising discretion in EU secondary law; and review balancing by the ECJ to determine the

boundaries of that discretion. Both should be discussed and evaluated keeping their specific

function in mind.

122

See, e.g., A. Edenharter, “Fundamental Rights Protection in the EU: The ECJ’s Difficult Mission to Strike a

Balance between Uniformity and Diversity” (2018) 10 Italian Journal of Public Law 390, J. Gerards, “Pluralism,

Deference and the Margin of Appreciation Doctrine” (2011) 17 European Law Journal 80 and F.J. Mena Parras,

"From Strasbourg to Luxembourg? Transposing the margin of appreciation concept into EU law" (2015) retrieved

from <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687043>.

123

Jongsma, “Fundamental rights as external constraints on copyright law” (2020) 15 JIPLP 1003, 1008-1009.

124

Cf. J. Zglinksi, “The Rise of Deference: The Margin of Appreciation and Decentralised Judicial Review in EU

Free Movement Law” (2018) 55 C.M.L. Rev. 1341.

4. Concluding remarks

Balancing, or at least balancing rhetoric, pervades EU copyright law at both the EU and

national levels. The balancing rhetoric employed by the ECJ has long been perceived as

problematic, in particular for its failure to provide insight into how the balance is struck. This

reluctance to engage in explicit balancing is not particularly new,

125

nor specific to the domain

of copyright law.

126

This criticism, while generally on-point, has tended to overlook certain

context-specific features. Looking at the ECJ’s use of balancing rhetoric through a more

context-sensitive lens, it becomes clear how the two contexts in which it has most relied –

interpretation of “domestic” norms and delineating the boundaries of Member State

discretion – differ in important respects. In both contexts, one is hard-pressed to find any

actual balancing considerations, but the method of balance avoidance, the reasons behind it,

and even the function that balancing serves all differ to some degree. As, consequently, do

the issues with balancing in those contexts.

This suggests that the use of balancing, and in particular the concept of fair balance, does not

need a “unitary solution” or method, as has been suggested,

127

but a context-sensitive one.

One that accounts for the differences between balancing as a method of interpretation, as a

tool to delineate the boundaries of Member State discretion, and as a way of exercising that

discretion in individual cases by national courts. These different modalities of balancing all

have the ability to shape the scope of protection of EU copyright law in their own way. Our

thinking about them should acknowledge that.

I want to emphasise that the point of this analysis has not been to argue that the ECJ must

necessarily embrace balancing in either of the discussed contexts. In neither case would this

be unproblematic. In the domestic interpretation context, especially when used to determine

the appropriate scope of protection, the use of balancing requires making political choices

about how rights and interests are best balanced. This brings up complicated questions about

the role of courts in a democratic society and the appropriate methods of legal interpretation.

In the composite context, the use of balancing is mainly problematic because it is liable to

interfere with the political choice of the EU legislature for national diversity.

128

Here,

balancing would be used to determine not how rights are best reconciled, but whether

national law respects the level of protection guaranteed by the Charter. To what degree such

a review is deemed appropriate is a question of higher-order balancing: between respecting

125

Cf. already Metronome Musik v Music Point Hokamp (C-200/96) EU:C:1998:172, in which the ECJ evaluated

the compatibility with the freedom to pursue a trade or profession of the newly introduced harmonised

exclusive rental right without conducting any serious proportionality analysis.

126

See, e.g., T. Marzal, “From Hercules to Pareto: Of bathos, proportionality, and EU law” (2017) 15(3) Int’l. J.

Const. L. (I·CON) 621 (regarding the ECJ's approach to evaluating Member State limitations on free movement)

and L. Dalla Corte, "On proportionality in the data protection jurisprudence of the CJEU" (2022) 12 International

Data Privacy Law 259 (regarding the ECJ's proportionality analysis in the context of data protection law).

127

See Sganga, “A decade of fair balance doctrine, and how to fix it” (2019) 41(11) Eur. Int. Prop. Rev. 683, 695.

128

Cf. K. Lenaerts, "The Role of the EU Charter in the Member States" in M. Bobek & J. Adams-Prassl (eds), The

EU Charter of Fundamental Rights in the Member States (Oxford: Hart, 2020), p. 28.

this legislative choice and ensuring full respect for Charter rights.

129

In either context, there

may be upsides to open balancing, namely laying bare the reasoning of the Court, and fuller

protection of Charter rights, respectively. The answer to the question of whether these

upsides outweigh the perceived downsides requires reflection on the specific role that

balancing would fulfil in either context.

129

Cf. Alexy, A theory of constitutional rights (2002), p. 414-422 on the balancing of formal principles to

determine legislative discretion.

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Jan 2012

E G Angelopoulos

Modalities of Fundamental Rights Balancing in EU Copyright Law: Understanding the Use and Abuse of the EU Charter and the Concept of “Fair Balance”

Abstract

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