The conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled does not fall within the common commercial policy defined in Article 207 TFEU. Consequently, the European Union does not have exclusive competence under Article 3(1)(e) TFEU to conclude that treaty.

The Marrakesh Treaty is, in essence, intended to improve the position of ‘beneficiary persons’ by facilitating their access to published works, through various means, including the easier circulation of accessible format copies. Concerning, next, the content of that treaty, the latter makes clear that the Contracting Parties must use two separate and complementary instruments in order to achieve its objectives. First, Article 4(1) of the treaty provides that Contracting Parties are to provide for an exception or limitation to the rights of reproduction, distribution and making available to the public, in order to make accessible format copies more readily available for beneficiary persons. Secondly, Articles 5 and 6 of the Marrakesh Treaty impose certain obligations relating to the cross-border exchange of accessible format copies.

As regards, in the first place, the harmonisation of the exceptions and limitations to the rights of reproduction, distribution and making available to the public, recital 12 in the preamble to the said treaty specifically states that such harmonisation is undertaken with a view to facilitating the access to, and use of, works by beneficiary persons. Furthermore, Article 4 of the Marrakesh Treaty is not capable of bringing about an approximation of national laws serving to facilitate international trade significantly, given that the Contracting Parties have a broad discretion with regard to the implementation of that article and that it follows from Article 12 of that treaty that the latter has neither the object nor the effect of preventing such parties from introducing in their own national laws other exceptions and limitations in favour of beneficiary persons than are provided for by the treaty. Moreover, the argument that, of the rules governing intellectual property, only those relating to moral rights are not encompassed by the concept of commercial aspects of intellectual property, as referred to in Article 207 TFEU, cannot be accepted, as it would lead to an excessive extension of the field covered by the common commercial policy by bringing within that policy rules that have no specific link with international trade. In those circumstances, the rules of the Marrakesh Treaty which provide for the introduction of an exception or limitation to the rights of reproduction, distribution and making available to the public cannot be held to have a specific link with international trade such as to signify that they concern the commercial aspects of intellectual property referred to in Article 207 TFEU.

As regards, in the second place, the rules of the Marrakesh Treaty governing the export and import of accessible format copies, there is no doubt that those rules relate to international trade in such copies. However, the objective of such rules must be taken into consideration for the purpose of assessing their connection with the common commercial policy. It must be held that Articles 5, 6 and 9 of the treaty are not specifically intended to promote, facilitate or govern international trade in accessible format copies, but are rather intended to improve the position of beneficiary persons by facilitating such persons’ access to accessible format copies reproduced in other Contracting Parties. That being so, the facilitation of the cross-border exchange of accessible format copies appears to be a means of achieving the non-commercial objective of the Marrakesh Treaty rather than an independent aim of the treaty. Furthermore, in view of its characteristics, the cross-border exchange for which the Marrakesh Treaty provides cannot be equated with international trade for commercial purposes.

In those circumstances, the mere fact that the scheme introduced by the Marrakesh Treaty may possibly apply to works which are, or may be, commercially exploited and that it may, in that event, indirectly affect international trade in such works does not mean that it is within the ambit of the common commercial policy.

(see paras 70-73, 83-91, 100, 101)