On 14 February 2017 the Court of Justice of the European Union ("ECJ") issued Opinion 3/15 on the question whether the Marrakesh Treaty (Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired of Otherwise Print Disabled) may be concluded by the EU acting on its own or whether the participation of the Member States is necessary for that purpose. Under Article 3(1) TFEU the European Union has exclusive competence for matters within the scope of the common commercial policy, including the commercial aspects of intellectual property. In its Opinion the ECJ concludes that the Marrakesh Treaty does not come within the ambit of the common commercial policy. First, the treaty is not intended to promote, facilitate or govern international trade in accessible format copies; its aim is rather to improve the position of beneficiary persons by facilitating, through various means, their access to published works. It follows that the body of obligations laid down by the Marrakesh Treaty falls within an area that is already covered to a large extent by ‘common EU rules’ and that the conclusion of the Treaty may affect those rules or alter their scope. Since the conclusion of the Marrakesh Treaty may affect the directive on copyright or alter its scope, the Court concludes that the EU has exclusive competence and that the treaty may be concluded by the EU acting on its own, without the participation of the Member States.

In our News Update of January 2017 we discussed the opinion of AG Sharpston regarding the competence of the EU to conclude the Singapore Free Trade Agreement. These questions of competence of the EU in external relations gain more interest and importance in the light of the negotiations and conclusion of agreements with the UK regarding Brexit.