Website owners can link to protected works, court rules

AILEEN MURTAGH

January and February have seen a number of EU law developments.

In Case C-466/12 (Nils Svensson and Others v Retriever Sverige AB) a question on interpretation of EU law was raised by a Swedish court before the Court of Justice regarding press articles written by Swedish journalists which were published on a freely accessible basis on the website of the Göteborgs-Posten newspaper.

Retriever Sverige, a Swedish company, operates a website that provides hyperlinks to articles published on other websites, including Göteborgs-Posten . It did not ask the journalists concerned for authorisation to establish hyperlinks to the articles published on the site.

On February 13th, the Court of Justice responded to the Swedish court’s request. It concluded that the owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site. This is so even if the internet users who click on the link have the impression that the work is appearing on the site that contains the link.

In Case C-367/12, Mrs Sokoll-Seebacher, who wanted to open a pharmacy in Pinsdorf, had her request for authorisation rejected under Austrian law on the ground that no need for such a pharmacy existed within that Austrian municipality.

Also on February 13th, the Court of Justice found that demographic criteria applied under Austrian law regarding the opening of new pharmacies were incompatible with the EU principle of freedom of establishment. By not allowing derogations to take account of particular local conditions, those criteria did not respect the requirement of consistency of application of national legislation.

Even if the national proceedings had no cross-border element, the relevant Austrian legislation was capable of falling within the remit of freedom of establishment since it might also apply to nationals of other member states who may wish to move to Austria to set up a pharmacy there.

Away from the EU Courts, the EU has initiated a number of reforms to increase the resilience of banks and to reduce the probability and impact of bank failure.

Risky business
On January 29th, 2014, the EU Commission adopted a proposal for a regulation to stop the biggest banks from engaging in the risky activity of proprietary trading.

The new rules would also give supervisors the power to require those banks to separate certain potentially risky trading activities from their deposit-taking business if their pursuit compromised financial stability. In addition, the commission adopted measures to increase the transparency of certain transactions in the shadow banking sector.

On February 4th, the European Parliament approved the commission's proposal for a directive on criminal sanctions for market abuse (ie, insider dealing and market manipulation in EU financial markets). This would lead to a common set of criminal sanctions in the EU including fines and imprisonment of four years for insider dealing/market manipulation and two years for unlawful disclosure of inside information.

This is the first legislative proposal based on the new article 83(2) of the Treaty on the Functioning of the EU, which provides for the adoption of common minimum rules on criminal law when this proves essential to ensure the effective implementation of a harmonised EU policy.

Alan McCarthy and Aileen Murtagh are committee members of the Irish Society for European Law