In his Opinion of 23 February 2016 in case Ognyanov (C-614/14, EU:C:2016:111, not available in English), Advocate General Bot addressed the question whether, regarding the content of a reference for a preliminary ruling, compliance with Articles 267 TFEU and 94 of the Rules of Procedure of the Court of Justice of the European Union (CJEU) by a domestic criminal court may impair the exercise of the rights guaranteed in Articles 47 (right to a fair trial) and 48 (presumption of innocence) of the Charter of Fundamental Rights of the European Union (CFR). AG Bot answers in the negative. He considers that a national rule that presumes that referring a case to the CJEU for a preliminary ruling is a breach of judicial impartiality, and therefore requires the referring criminal court to inhibit itself (and face disciplinary sanctions) upon having referred the case to the CJEU is contrary to EU law. In my view, AG Bot raises important points on the need to keep an effective level of judicial cooperation between the domestic courts and the CJEU, also when criminal matters are concerned. However, some parts of the reasoning in the Opinion are too formal and too heavy-handed in favour of the CJEU's monopoly of interpretation of EU law and the effectiveness of the preliminary reference mechanism, at the expense of a substantive assessment of the proper respect to the presumption of innocence guaranteed by Art 48 CFR. In my view, a more nuanced position would be preferable, even if it requires a revision of the rules of procedure of the CJEU in relation to preliminary references in criminal law matters.

The case at hand concerns criminal law enforcement in Bulgaria, where a domestic rule concerning breaches of judicial impartiality could be interpreted so as to require a referring national court that has laid out the factual background and the law applicable to the case for the purposes of the reference to the CJEU, to inhibit itself from any further decisions in a criminal case (and face disciplinary action).

In particular, the dispute is about the 'EU law-compliant' interpretation of Art 29(2) of the Bulgarian Code of Criminal Procedure (BCCP), which  establishes that 'A judge ... may not be part of the court composition due to some other circumstances on account of which he/she may be considered biased or interested, directly or indirectly, in the outcome of the case'. In stylised terms, the argument is that, by laying out the relevant facts and the rules applicable thereto, the national court expresses a 'preliminary view' on the substance of the case. By doing so before the case is at deliberation phase, and then refraining from inhibiting itself from further decisions in the case, the criminal court would be breaching its duty of impartiality (which is a fundamental guarantee of the right to a fair trial) and the accused's right to the presumption of innocence.

In case this interpretation was accepted, this would create a significant issue of coordination of EU law and domestic criminal law in the Member States--which may well be an unresolved issue in the deepening of judicial cooperation in criminal matters in the EU, since there are no special rules for the purposes of a reference for a preliminary ruling in criminal law matters under Art 94 of the rules of procedure of the CJEU (as acknowledge by AG Bot in para 19). Thus, the case is important beyond the technical point concerning the current rules applicable to the content of references for a preliminary ruling and their effects in criminal law cases, and could easily be pointing out to the need to create such special rules.

In addressing the question referred by the Bulgarian court, AG Bot indeed acknowledges that the referral mechanism 'can create difficulties in situations requiring delicate handling by domestic courts of all jurisdiction and rank' (para 6, own translation from Spanish). However, he rejects that the referral of a case for a preliminary ruling can be interpreted as requiring the inhibition of the referring criminal court (much less the imposition of disciplinary sanctions). His arguments are based both on the need to facilitate judicial cooperation, and on the specific rules applicable to the preliminary reference procedure (para 7). More specifically, AG Bot submits to the CJEU that such a requirement for the inhibition of the referring criminal court would neutralise the effectiveness of Art 267 TFEU and would prevent (Bulgarian) criminal courts from referring cases for a preliminary ruling to the CJEU, which would encroach upon the prerogatives of the Court under Art 267 TFEU--most notably, its monopoly on the interpretation of EU law, which is an issue that comes up again and again in the area of enforcement of fundamental rights under EU law, as became clear in relation to Opinion 2/2013 on the accession of the EU to the ECHR (EU:C:2014:2454; see comments here, here and here).

AG Bot's point of departure is encapsulated in his consideration that 'case law and doctrine have sufficiently stressed that preliminary references are the cornerstone of the Union's judicial system, which exercise concerns the national courts' (para 36, own translation from Spanish). He further relies on Opinion 2/2013, where the CJEU stressed that 'by setting up a dialogue between one court and another, ... between the Court of Justice and the courts and tribunals of the Member States, [the preliminary ruling procedure] has the object of securing uniform interpretation of EU law ... thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties' (para 176). Moreover, he stresses that the proper exercise of the possibility to refer cases to the CJEU for a preliminary ruling is an integral part of the right to a fair trial, as recognised by the European Court of Human Rights (ECtHR) in Dhabbi v Italy (No. 17120/09) (para 38 of AG Bot's Opinion).

All the ensuing analysis concerning the content of the factual and legal requirements of Art 267 TFEU and Art 94 of the rules of procedure (paras 41-72) rests fundamentally on the importance of the exposition of facts and the explanation of the applicable domestic law that the domestic court needs to provide the CJEU for the purposes of enabling the Court to provide a ruling on the proper interpretation of EU law as it relates to the relevant domestic rules. AG Bot stresses that there is no reason to apply different requirements in criminal matters as compared with civil or administrative law cases (para 66, although he offers no further elaboration or support for this position); and that, if anything, the imposition of higher thresholds of precision and motivation in criminal cases would be justified by the impact that the CJEU's ruling can have on the accused's freedom (para 68).

AG Bot proceeds to consider the arguments regarding the lack of impartiality derived from the 'preliminary view' expressed by the criminal court in the referral (paras 73-87). Remarkably, he stresses that '[i]t is clear from settled case law of the European Court of Human Rights that the mere fact that a judge adopts resolutions before the process can not justify by itself any reproaches regarding his impartiality. What should be assessed is the extent of the measures which have been adopted ... Consequently, although a preliminary question before the Court is a court decision, it is not least true that stating, in that context, the circumstances of fact and legal issues inherent to the case constitutes only a mere statement by the national court, which, furthermore, does not to carry out any legal characterisation' (para 83, references omitted, own translation from Spanish, emphasis added). AG Bot supports this argument with his view that, in the specific case, there is no reason to believe that the referring court is biased or partial. This reasoning is, however, problematic because it tries to address a substantive requirement (ie assessment of the extent of the measures) with a formal justification (that, formally, the description of the legal rules applicable to the case by the domestic court does not necessarily imply a definite legal characterisation of the facts of the case).

Moreover, when it comes to the arguments on a potential breach of the presumption of innocence (paras 88-104), the Opinion seems to get into a muddy road. It starts off by acknowledging that the adoption of any preliminary view on the guiltiness of the accused would infringe the right to the presumption of innocence (para 89) and that, consequently, the key element in an analysis of compliance with Art 48 CFR would be to determine whether, in the referral for a preliminary ruling, the domestic criminal court has indicated that it considers the accused guilty, without guilt being duly proven. In my view, this is indeed the proper framework for the analysis. However, AG Bot proceeds to stress that, in the specific circumstances of the case, the accused cannot benefit from the presumption of innocence because he had already been convicted (para 91).

He also indicates that '[i]n any case, we must not forget that the request for a preliminary ruling by a national court is only intended to obtain a correct interpretation of EU law--whereas determining, on the basis of this interpretation, if the accused is to be found innocent or guilty of the facts, is a task that can only result from the unique and personal appreciation of that [national] court' (para 92, own translation from Spanish). Then, he proceeds once more to arguments on the neutralisation or deactivation of the preliminary reference mechanism should domestic courts be forced to inhibit themselves (and face disciplinary sanctions) in case they referred cases to the CJEU (which is circular and returns to the initial points). AG concludes on this point that 'there is no doubt whatsoever that European Union law, and in particular Articles 267 TFEU and 94 of the Rules of Procedure, precludes national legislation ... which, if maintained, could very seriously affect the preliminary ruling mechanism and, with it, the cooperation established between the Court and national courts, and threaten the primacy of EU law' (para 103, own translation from Spanish).

I find this line of reasoning exceedingly formal because it creates an absolute separation between a view on the need of asking for the interpretation of specific legal provisions and the domestic court's position on the need or likelihood to apply that law to the case. Granted, not every instance in which a request is made necessarily indicates that the referring court has reached a decision on whether the rules will be applicable (as this may, in fact, be affected by the outcome of the CJEU's interpretative exercise). However, in my view, it cannot automatically be ruled out that by its nature the content of a reference for a preliminary ruling is inapt to contain an indication of bias by the referring court, or a breach of the presumption of innocence of the accused. Where that was apparent, and in order to properly protect the rights of the individuals affected by the procedure under the CFR, the CJEU shall engage in a substantive assessment to determine whether Art 48 CFR was at risk and, where warranted, include adequate safeguards when deciding on the preliminary ruling--such as, in specific instances, requiring the referring court to inhibit itself in favour of a different court.

Granted, the main difficulty is that there is no procedural avenue for this as Art 94 of the rules of procedure stands--which in my view seems to be more than a good reason to revisit the assumption that the same rules apply for civil/administrative and criminal references for a preliminary ruling (see para 66 of AG Bot's Opinion).

Beyond these issues, I find it troubling that AG Bot submits to the CJEU that it also needs to rule that a discretionary inhibition by the referring court should also be declared contrary to EU law. Specifically, when considering 'whether EU law prevents [the referring national court] from opting, in application of the national rule under dispute, to inhibit itself because that rule ensures a higher level of protection of fundamental rights of the individuals concerned' (para 113, own translation from Spanish), AG Bot argues considers that the question is actually whether 'European Union law precludes the national court's application of a national rule that has been declared contrary to EU law [by the CJEU]?' (para 114, own translation from Spanish). Of course, AG Bot considers that the answer is that EU law indeed prevents the referring court from relying on that rule to opt for discretionary inhibition. 

However, in my view, given that the domestic rule at stake is the fundamental rule for the disqualification of judges in criminal proceedings, this seems way too far fetched. In particular, because Art 29(2) BCCP establishes a general, open-ended standard to ensure judicial impartiality (see above), there seems to be no reasonable way to conclude that, even if the mere fact of having referred the case to the CJEU for a preliminary ruling does not necessarily trigger the application of Art 29(2) BCCP, its application should be completely excluded for the reasons discussed by AG Bot in his Opinion. More leeway is necessary for the referring court to exercise her own discretion and decide whether, all things considered, she is no longer in a position to make further decisions in the criminal process in an impartial way. Any other interpretation would be, in my submission, a breach not only of Article 48 CFR, but also of Article 6(1) of the European Convention on Human Rights, as it ensure the right to a 'fair and public hearing ... by an independent and impartial tribunal established by law'.

Therefore, overall, I would like to see the CJEU decide this case in a more nuanced way than AG Bot proposes. I do not hold very high hopes, though.

Parody and the protection of fundamental rights under EU law: No laughing matter? (C-201/13)

In his Opinion of 22 May 2014 in case C-201/13 Deckmyn and Vrijheidsfonds (once again, not available in English), AG Cruz Villalon has assessed the concept of 'parody' under Art 5(3)(k) of Directive 2001/29/CE on the harmonisation of certain aspects of copyright and related rights in the information society (Copyright Directive). 

The Opinion is interesting because it concerns the degree to which fundamental rights' protection needs to be taken into consideration (as a matter of EU law) when making the relevant determination of the extension of the 'parodic' exception to copyright in a civil procedure. 

This is one of the myriad of cases in which the Court of Justice of the EU (CJEU) will soon be concerned with the EU Charter of Fundamental Rights and, consequently, the proposals on the integration/coordination of these issues that the AG puts forward may be interesting beyond the scope of application of the Copyright Directive.

In the case at hand, a political party used a parody of a comic to criticise the then mayor of Ghent (Belgium). In the parodied copy, the name of the original author (Vandersteen) was included, with a reference that indicated that the current version was a "free adaptation" of the original work made by a second author (Fre) -- both designs are reproduced below, as they appear on AG Cruz Villalon's Opinion (original on the right).


The controversy basically derived from the fact that the parody had a discriminatory or racist content and, consequently, the heirs of the original author and the companies that currently hold the rights to the exploitation of his works tried to prevent such a use of Vandersteen's comic. The claim was technically framed as a challenge to the proper use of the materials as a parody, given that it was not the original work that was being parodied, but Ghent's mayor of the time. According to the claimants, that use would not be covered by the exception under Art 5(3)(k) of Directive 2001/29/CE.

AG Cruz Villalon, anticipating potential criticisms to his Opinion on the interpretation of the concept of parody, establishes important limitations to the scope of his arguments, where he makes clear that they do not include any elements regarding the moral rights of the author, the "three-step" test that Art 5(5) of the Copyright Directive establishes as a balancing requirement between the exceptions therein regulated and the protected rights, or the caveat that Belgian law introduced to the fact that parody is only acceptable provided it is conducted "in observance of good manners".

After confirming that, in his view, the concept of 'parody' (for the purposes of the Copyright Directive) is an autonomous concept of EU Law (paras 32-39), the AG goes on to consider that "Parody is [...] structurally, 'imitation' and, functionally, 'burlesque'" (or mocking, para 48, own translation from Spanish), and provides a significant amount of details as to his interpretation of both these structural (paras 49-58) and functional (paras 59-70) requirements. In my view, the most interesting part of his Opinion concerns paras 71-88, where he engages in a discussion on the incidence of the protection of fundamental rights on the (acceptable) content of the parody. The difficult question to be answered is, basically, "To what extent can the interpretation of the scope of the exception for parody given by the civil judge be determined by the protection of fundamental rights?" (para 76, own translation from Spanish).

The AG approaches the issue both as a matter of principle and introducing an exception. As a matter of principle, the AG submits that "always under the assumption that parody effectively meets the requirements already mentioned, an interpretation of the notion of parody by the civil court should, as a matter of principle, favor the exercise of freedom of expression through this unique medium" (para 81, own translation from Spanish). However, given that freedom of expression is never unlimited, 
Considering the "presence" to be recognized to fundamental rights in the legal system as a whole, I understand that, in principle and from the narrow perspective of the concept of parody, a certain image cannot be excluded from this notion for the simple fact that the message is not shared by the author of the original work, or by the rejection that it may deserve from much of the public. Still, those deformations of the original work that, in the form or substance, convey a message radically contrary to the deepest convictions of society, and in which the European public space is ultimately built, and ultimately exists, should not be accepted as a parody, and the authors of the parodied work are entitled to enforce that restriction as well (para 85, own translation from Spanish, emphasis added).
Nonetheless, the final test proposed by the AG is rather mild and, in my view, is unnecessarily inconclusive, as he proposes the CJEU to find that "When interpreting the term 'parody', the civil court must be guided by the fundamental rights proclaimed in the Charter of Fundamental Rights of the European Union and proceed to the necessary balancing between those rights when the circumstances of the case at hand require".

I consider that the (self)restraint that AG Cruz Villalon shows in the final part of his Opinion in Deckmyn and Vrijheidsfonds is a clear indicator of the pusillanimous approach that we can expect the CJEU to adopt in cases like this one. Given that the concept of parody is a concept of EU law (for the purposed of the Copyright Directive, anyway) and that the CJEU holds the ultimate competence for the interpretation of the EU Charter [as coordinated with the European Convention on Human Rights and the case law of the European Court of Human Rights per art 52(3) EUCFR] the AG could have been more aggressive.

In my view, the AG should have clearly proposed that the CJEU interpreted that the concept of parody does not include 'those deformations of the original work that, in the form or substance, convey a message radically contrary to the deepest convictions of society' and, in particular, those that are racist, xenophobic or, in any other way, attempt against cultural, religious and linguistic diversity as protected in Article 22 of the EU Charter. Such a finding would still require the domestic courts of the Member States to determine whether, on the basis of the facts and circumstances of a given case, the intended parody is or not covered by the EU concept. However, the message would be much stronger and the CJEU would be effectively acting as a constitutional court for Europe, at least as the protection of the rights recognised in the EU Charter is concerned.

On the contrary, by deferring all judgment and providing no clear indication as to the way the balance is likely to tilt, the AG (and the CJEU if they follow the 'soft, self-restrained' approach in Deckmyn and Vrijheidsfonds) would once more be refusing to exercise their function as a constitutional court and, in my view, would indicate that all the fuss and complicated negotiations of the (prior involvement mechanism in order to authorise) accession of the EU to the European Convention of Human Rights would have been unnecessary and superficial, given their lack of commitment to a substantive and effective enforcement of the necessary protections of fundamental rights in the EU (for a critical assessment of the process and mechanisms involved in the accession, see the various contributions to Tzevelekos et al, The EU Accession to the ECHR).

From this perspective, I will be eagerly awaiting the CJEU's final ruling in Deckmyn and Vrijheidsfonds, although I must say that I do not hold high expectations and I would bet that they will follow the approach suggested by the AG (maybe including one or two 'strong' obiter dicta but) refusing to provide a clear indication of the way the balance of fundamental rights should tilt. 

Let's hope the wait is over soon.