Commentary on ECJ 29 JULY 2019, CASE C-516/17, SPIEGEL ONLINE; ECJ 9 MARCH 2021, CASE C-392/19, VG BILD-KUNST

The two judgments Spiegel Online and VG Bild-Kunst concern copyright law. In both decisions, the Charter of Fundamental Rights of the European Union (hereinafter: ‘the Charter’) plays a central role in the interpretation of EU secondary law, particularly Directive 2001/29/EC (hereinafter: ‘Copyright Directive’ or ‘the Directive’). The present chapter comparatively analyses the two judgments by focusing on the application of EU fundamental rights. Thereby, the positions taken by the Court of Justice of the European Union (ECJ) in the two judgments are observed in light of the previous ECJ case law and scholarly writings on EU fundamental rights.
Specifically, the fundamental rights at stake in the two judgments are freedom of expression, enshrined in Article 11 of the Charter (and Article 10 ECHR), and freedom to conduct a business, enshrined in Article 17(2) of the Charter. Section 2 and Section 3 of this chapter analyse the fundamental rights-related aspects of the two judgments separately, and then, Section 4 compares them and takes a position in the debate.