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15 Article 17 Charter on the Right to Property and Intellectual Property: Do These Rights Represent Essential Values in a Democratic Society?

15 Article 17 Charter on the Right to Property and Intellectual Property: Do These Rights Represent Essential Values in a Democratic Society?

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5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



The Court of Justice leaves the Member States a wide margin of appreciation in

regulating the use of property, but limitations of use have to meet the test of proportionality. This margin of appreciation is important in the context of this book,

because it may mean that the standard of review the Court applies to the right to

property is less strict than the standard it applies to privacy and data protection. In

relation to intellectual property, the Court seems to confirm a difference with privacy and data protection. The Court ruled in Scarlet Extended336 that there is nothing “to suggest that that right [to intellectual property] is inviolable and must for that

reason be absolutely protected”.

This leads to a few remarks on the right to property itself. It is beyond doubt that

the right to property has a fundamental nature and relevance in society. The right has

a longstanding history. Locke, for instance, emphasised in Two Treatises of

Government, the essence of property.337 In his view, every individual has a property

in his own person; this is something that nobody else has any right to. This property

is linked to his labour. The right to property was also recognised in the American

and French revolutions,338 and in those days even linked to civil and political rights.

Only – male – citizens having property were considered to be stakeholders in society and were supposed to have a right to vote.339 The limitations on the right to

property in parts of Europe before the fall of communism are a further illustration

that the enjoyment of the right to property should not be taken for granted.340

The inclusion of the right to property in the main twentieth century international

fundamental rights instruments however was less obvious. The right to property is

included in Article 17 of the Universal Declaration of Human Rights, but not in the

International Covenant on Civil and Political Rights. The right to property is not

embodied in the European Convention on Human Rights itself, but was only added

in the First Protocol to the Convention after much debate. In literature, the right to

property is not systematically qualified as a civil or political fundamental right or as

a fundamental element of a democracy.341 Gerards calls the right to property a

­“borderline right”.342 Nevertheless, it is one of the most violated rights of the



 Case C-70/10, Scarlet Extended v Sabam, EU:C:2011:771, at 43.

 John Locke, Second Treatise of Government, point 27, available on: http://www.earlymoderntexts.com/pdfs/locke1689a.pdf.

338

 Article 2 of the Déclaration des Droits de l’Homme et du Citoyen du 26 août 1789: “Le but de

toute association politique est la conservation des droits naturels et imprescriptibles de l’Homme.

Ces droits sont la liberté, la propriété, la sûreté, et la résistance à l’oppression.”

339

 See on this: Micheline R. Ishay, The history of human rights: from ancient times to the globalization era, University of California Press, pp. 91–99, 2008.

340

 See: https://en.wikipedia.org/wiki/Human_rights_in_the_Soviet_Union#Economic_rights.

341

 See on this: C. Fabre, Constitutionalising Social Rights, The Journal of Political Philosophy,

Volume 6, Number 3, pp. 263–284, 1998.

342

 J.H. Gerards, ‘Fundamental rights and other interests – should it really make a difference?’, in:

E. Brems (ed.), Conflicts between Fundamental Rights, Intersentia, Antwerp, 2008, footnote 15 of

Chap. 1.

336

337



5.15  Article 17 Charter on the Right to Property and Intellectual Property: Do…



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Convention,343 because of government interference in the peaceful enjoyment by

individuals of their possessions.344

Moreover, the right to property has links with other rights. The European Court

of Justice combines this right with the freedom to choose an occupation and the

right to engage in work (Article 15 Charter) and the freedom to conduct a business

(Article 16 Charter), without specifying their interrelationship.345 In Pfleger,346 these

three provisions are taken together. In Sky Österreich,347 the obligation of a holder

of exclusive broadcasting rights to grant third parties the right to make short news

reports is not reviewed under Article 17 Charter as a limitation to the right to property, but as a limitation to the freedom to conduct a business under Article 16

Charter. The Court exercised this review whereas, at the same time, it seemed to

indicate that, because of its wording, Article 16 Charter offers less protection than

Article 17 Charter. As the Court stated, the wording of Article 16 differs from the

wording of other fundamental freedoms and is similar to certain provisions of Title

IV of the Charter on solidarity.348

In short, the right to property is an essential value in a democratic society and

recognised as such. However, its status as a fundamental right is ambiguous. The

close connection of the right to property with the rights under Article 15 and 16

Charter justifies the qualification of the right to property as an economic right,

which aims to protect economic values. However, this qualification does not take

into account that the right to property also encompasses a moral value in society, as

Locke already underlined.349



5.15.1  I ntellectual Property Becomes Complicated

in the Information Society and Copyright Is

the Example of a Right Difficult to Enforce

Torremans explains that intellectual property rights were not always considered to

be fundamental rights.350 He describes two schools, one that is based on the presumption of a conflict between fundamental rights and intellectual property rights

343



 See: http://echr-online.com/right-to-property-article-1-of-protocol-1-echr/introduction.

 Wording of Article 1 of the Additional Protocol to the ECHR.

345



Ferdinand Wollenschläger on Article 17, The EU Charter of Fundamental Rights, A

Commentary, Edited by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart

Publishing, pp. 467–468, 2014.

346

 Case C-390/12, Pfleger, EU:C:2014:28.

347

 Case C-283/11, Sky Österreich, EU:C:2013:28.

348

 At 46 of the ruling.

349

 The moral value of property is also explained by C. Fabre, Constitutionalising Social Rights,

The Journal of Political Philosophy: Volume 6, Number 3, pp. 263–284, 1998.

350

 In his description on Article 17, The EU Charter of Fundamental Rights, A Commentary, Edited

by Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward, Hart Publishing 2014,

pp. 492–494.

344



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5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



and a second one that focuses on the interaction and balance between both types of

rights. The European Court of Justice followed the second school of thought in

Promusicae,351 by mentioning the need to reconcile the various rights and interests

and by giving guidance for the balancing of those rights and interests. This case,

which was adjudicated before the entry into force of the Lisbon Treaty, qualified

intellectual property as a fundamental right and balanced it on an equal footing with

data protection.

Intellectual property rights are based on legislative intervention: laws determine

the existence and enjoyment of intellectual property rights. The European Union

has adopted an extensive body of legislation on intellectual property rights, mostly

based on Article 352 TFEU, which is a supplementary competence that allows the

Council to legislate, by unanimity and with the consent of the European Parliament,

in a domain where no specific legal basis is provided and if EU action proves to be

necessary to achieve an objective of the Treaties.352

The information society has an impact on the right to intellectual property. First,

the information society complicates the protection and enforcement of intellectual

property rights with copyright as the prime example: the information society enables

the infinite copying of information and information is ubiquitously available.

Moreover, the notion of open data deliberately aims at diminishing the importance

of intellectual property.353

Second, the relationship between enforcement of intellectual property rights and

privacy and data protection was recognised by the EU legislator in Directive

2004/48, but only in a very generic way.354 On the internet, this relationship gets a

new dimension because rights holders develop new methods of enforcement. The

mechanisms that are or must be put in place to discourage the illegal downloading

of copyright protected materials illustrate the importance of the relationship. These

mechanisms could encompass the monitoring of internet users and the filtering and

blocking of communications.

In Scarlet Extended,355 the Court of Justice dealt with a filtering mechanism that

required installing a system for filtering that was applied to all customers, as a preventive measure in order to monitor behaviour on the internet for the purpose of

protecting copyright. This filtering system “would involve a systematic analysis of

all content and the collection and identification of users’ IP addresses from which

unlawful content on the network is sent. Those addresses are protected personal



 Case C-275/06, Promusicae, EU:C:2008:54, at 65–68.

 Koen Lenaerts and Piet van Nuffel, European Union Law, Third edition, Sweet & Maxwell

2010, at 7-018 and 7-019.

353

 See Chap. 6, Sect. 6.7.

354

 Article 8(3)(e) of Directive 2004/48/EC of the European Parliament and of the Council of 29

April 2004 on the enforcement of intellectual property rights, OJ L195/16. The recitals mention

Directive 95/46 and the Charter, however in the latter case specifying Article 17(2), not 7 and 8.

355

 Case C-70/10, Scarlet Extended, EU:C:2011:771. Other cases on this relationship are: Case

C-461/10, Bonnier Audio, EU:C:2012:219, and Case C-275/06, Promusicae, EU:C:2008:54.

351

352



5.15  Article 17 Charter on the Right to Property and Intellectual Property: Do…



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data because they allow those users to be precisely identified.”356 In this case, the

Court ruled that IP addresses are personal data and considered that the mechanism

at stake was not in conformity with EU law, as construed in the light of fundamental

rights.357 The Court observed that a fair balance must be struck between the right to

intellectual property and the right to data protection,358 without specifying the nature

of such balancing.359

Furthermore, Directive 2000/31 on eCommerce,360 as interpreted by the Court in

L’Oréal and others,361 precludes an active monitoring of all customers data in order

to prevent any future infringement of intellectual property rights via a provider’s

website, albeit for economic reasons not related to fundamental rights. The Court

also mentioned that Article 3 of Directive 2004/48 on the enforcement of intellectual property rights has the same consequence.362



5.15.2  D

 oes the Right to Property Represent Human Dignity

in the Same Way as Privacy and Data Protection?

The case law does not give clear guidance as to whether the right to property must

be balanced on an equal footing with privacy and data protection. In Scarlet

Extended,363 the European Court of Justice did not deal with this question in any

detail, although it did emphasise the non-absolute character of the right to intellectual property.

There are, however, indications in the case law and literature that both (sets of)

rights have a different value.364 Moreover, intellectual property – a subset of the

right to property – does not seem to represent the same value. Hence, a tentative

conclusion could be that the Court’s case law allows a certain distinction in the level

of protection given by fundamental rights, whereby the level is higher for privacy



 Case C-70/10, Scarlet Extended, EU:C:2011:771, at 51.

 In its ruling, the CJEU also pointed at a number of EU law instruments, also outside the area of

privacy and data protection. See also the opinion of AG Cruz Villalón.

358

 Case C-70/10, Scarlet Extended, EU:C:2011:771, at 53.

359

 Important questions remain unanswered; see: Stefan Kulk, Frederik Zuiderveen Borgesius,

Filtering for Copyright Enforcement in Europe after the Sabam cases, European Intellectual

Property Review, 2012, issue 11, pp. 54–58.

360

 Article 15(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June

2000 on certain legal aspects of information society services, in particular electronic commerce, in

the Internal Market (‘Directive on electronic commerce’), OJ L 178/1.

361

 Case C-324/09, L’Oréal and Others, EU:C:2011:474, at 139.

362

 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the

enforcement of intellectual property rights, OJ L195/16.

363

 Case C-70/10, Scarlet Extended, EU:C:2011:771.

364

 As explained in Sect. 5.7.

356

357



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5  Understanding and Assessing the Contribution of the CJEU to the Mandate Under…



and data protection (and on an equal footing, the freedom of expression and information) in comparison with the protection accorded to the right to property.

This tentative conclusion is relevant because the developments in the information society influence the exercise of the right to property, including the right to

intellectual property. Examples are the filtering mechanisms put in place to enforce

copyright, requiring a monitoring of customers. These developments in the information society illustrate that balancing property and intellectual property on an

equal footing with privacy and data protection may weaken the level of data protection when internet monitoring by copyright holders is accepted as a means to protect

copyright.



5.16  A

 Strict Review of Measures Aiming at a High Level

of Security with an Impact on Privacy and Data

Protection

The security of individuals, physical and otherwise, is not recognised in the Charter,

but it is an objective of the European Union. For instance, Article 67(3) TFEU provides that the Union shall endeavour to ensure a high level of security. Providing

security is a core task of any government. It is the justification of the very existence

of the state: it is there to protect life and liberty, or as Thomas Jefferson already

wrote in 1776, governments are instituted to secure life, liberty and the pursuit of

happiness.365 The exercise of the rights of privacy and data protection is limited by

the task of governments to guarantee their citizens’ security, an objective of general

interest in the sense of Article 52(1) Charter.



5.16.1  Privacy and Security: A Trade-Off

The relationship between privacy and security has elements of a trade-off.366 On the

one hand, privacy is seen as inhibiting the appropriate protection of our societies

against threats caused by terrorist attacks or by serious crime and, on the other hand,

privacy is considered a value that should prevail against the risks of unconditioned

surveillance. A trade-off should therefore be made; but how?

One could, for instance, think of a trade-off based on objective data, for instance

by balancing surveillance’s negative effects on the essential values of our society

with the number of potential casualties if persons were not under surveillance. This



365



 In the US Declaration of Independence of 1776.

 The trade-off model was the subject of the PRISMS project (not to be confused with PRISM, the

programme of the NSA), sponsored by the EU under the 7th Framework Programme; see: http://

prismsproject.eu/.

366



5.16  A Strict Review of Measures Aiming at a High Level of Security…



245



is not pure theory. Habermas367 describes a case – not relating to privacy, but to

human dignity – before the German constitutional court, where the German Aviation

Security Act, which was adopted following the attacks of 9/11, was declared unconstitutional.368 The German law authorised German authorities to shoot down passenger aircrafts in situations similar to 9/11. As Habermas explains, the German

constitutional court decided in favour of the dignity of the passengers (their right to

life) against security of the wider population. This example also shows that this

trade-off cannot always be made on a rational basis.

The balancing between privacy and security may in the end boil down to making

a comparison between adverse effects on privacy, which can reasonably not be

quantified, and imprecise prognoses about casualties in case considerations of privacy and data protection prevail and authorities are limited in the use of personal

information. After a terrorist attack – the attacks in France and Belgium in 2015 and

2016 being a logical example – privacy advocates argue that the attack would not

have been prevented if authorities had had more facilities to access data.369 Persons

and authorities responsible for security claim they need more data.370 Neither side

bases its arguments on verifiable figures. The example of terrorist attacks demonstrates the difficulty of a trade-off. It also illustrates that, in these circumstances,

arguments based on perceived threats to security tend to be more convincing in the

political debate than arguments based on the value of privacy. The argument of privacy is not strong, against an allegation – whether or not based on fact – that it

would put the lives of individuals at risk.



5.16.2  T

 he Case Law of the ECtHR Helps Understanding

Privacy, in Its Relation to Security

The European Court of Human Rights has repeatedly ruled on justifications for

public authorities’ interferences with the right to privacy under Article 8

ECHR. Various rulings deal with the storing, monitoring and interception of information for police purposes. As illustrated by Digital Rights Ireland and Seitlinger,

the European Court of Justice regularly refers to these cases and builds on these

rulings when developing its own case law under EU law.

More specifically, the European Court of Human Rights scrutinises the interference of privacy for the purpose of national security. The Court is particularly strict,

because a system of secret surveillance designed to protect national security entails

367



 Jürgen Habermas, The Crisis of the European Union, A Response, Cambridge 2012, at 72.

 Bundesverfassungsgericht, 1 BvR 357/05 – Ruling of 15 February 2006.

369

 MEP Sophie in’t Veld, reacting on a proposal to facilitate access to PNR data; see: http://www.

volkskrant.nl/dossier-europese-unie/tusk-bepleit-haast-met-database-van-vliegtuigpassagiersnaar-eu~a3826625.

370

 E.g., Joint statement issued following a meeting of the ministers of the interior in Paris, 11

January 2015, following Charlie Hebdo.

368



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