Luxembourg, we have a problem: Where have the Advocates General gone?

... Or that I need you at all?

What is the story with the Court of Justice of the European Union (CJEU), its references for a preliminary ruling, and what looks like a sentiment of increasing uneasiness of the Court towards its Advocates Generals, at least in the area of copyright?

Over the past few months the CJEU has ruled on key copyright issues, that spanned from the scope of exclusive rights (Case C-466/12 Svensson [here, here, here, here and here]; Case C-351/12 OSA [here and here]) and related exceptions and limitations (Case C-435/12 ACI Adam [here and here]; Case C-360/13 Public Relations Consultants Association [here]) to enforcement (Case C-170/12 Pinckney [here, here and here]; Case C-387/12 Hi Hotel [here]; Case C-314/12 UPC Telekabel [here]), and everything in between, including the evergreen (because still highly unclear) database right (Case C-202/12 Innoweb [here]).

What most of these cases had in common was the role – or better: lack thereof – of Advocates General. The CJEU either departed significantly from their Opinions or ruled without seeking one in the first place. 

The former is possible because Opinions of Advocates General are not binding on the CJEU. The Court made this eloquently clear in recent references that required consideration of controversial issues, such as the criteria for determining jurisdiction in case of alleged online infringements (Pinckney) or the requirements of blocking injunctions (UPC Telekabel). 

The latter is expressly allowed by Article 20 of the Court’s Statute in those instances that raise “no new point of law”. This was the case, for instance, of Svensson, Public Relations Consultants Association, Hi Hotel, and Innoweb. In general terms, the CJEU has increasingly reverted to this possibility, as the 2013 Annual CJEU Report made clear together with the fact that in that year the number of references for a preliminary ruling was 33% higher than 2009.

By not seeking the Opinion of an Advocate General, the CJEU implied that there was no need for a detailed analysis of the legal aspects of the case at hand. By departing from the Opinion sought, the CJEU showed that it did not share the legal analysis conducted by the designated Advocate General. Either way, the CJEU appeared to suggest that it knew better than its Advocates General.

What appears like an emerging trend may thus prompt a specific question: Have Advocates General and their Opinions become a waste of time and resources in this area of the law?

Still adequate?

It is unlikely that the response is that copyright is an “easy” area of the law or the issues it has been presenting recently do not require much thought. 

Was it straightforward to say that hyperlinking falls outwith the scope of copyright protection? Was it easy to determine that the courts of a given Member States have jurisdiction to hear cases of alleged online copyright infringements just because the website where allegedly infringing content is available can be accessed from that particular territory? Was it so clear that the database right might come into question when operating a meta search engine?

One may wonder whether all this, instead, may be a consequence of the fact that, similarly to the judges of the Court, Advocates General are not IP and copyright specialists. Would the statistics on Advocates General and their Opinions change at all if there were (more) subject specialists among them and – possibly – also among the judges of the Court? What if, elaborating upon Article 252 of the Treaty on the Functioning of the European Union, the duty of Advocates General, acting with complete impartiality and independence, was to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court, require not just their involvement, but also their specific competence?

Opinions of Advocates General are usually more thoughtful than subsequent judgments, especially where the Court agrees with the Opinion. But when it comes to copyright, what is and – most importantly – should be the role of Advocates General? Is #saveourAGs the answer (and relevant hashtag of course)? If so, how can this be done?

NOTE: This post is a forthcoming Editorial for the Journal of Intellectual Property Law & Practice which - incidentally - has also a blog and Twitter account.