The European Political Order and Internet Piracy: Accidental or Paradigmatic Constitution-Shaping?

Abstract

In November 2007, the French President Sarkozy made a first move towards adopting a statute, dubbed Loi Hadopi, which would sanction illegal downloading of intellectual property contents from the Internet, such as music, films and software. The infringing user's Internet access would be cut without a prior court decision to that effect. In the same time, the European Commission initiated a comprehensive legislative reform of the EU telecommunications sector. These two parallel legislative processes became dramatically intricate when the opposition in the French Parliament decided to connive with their counterparts in the European Parliament in order to frustrate the French Government's plans. The MEPs indeed adopted an amendment that would require a court decision before Internet access could be cut. Since French law would now contravene EU law, the Commission and the European Parliament admonished the French Government. The French Government, for its part, lobbied the Commission and the Council. Furthermore, while the French parliamentary majority partly relied on a judgment of the European Court of Justice to support the Government, the opposition turned to the Conseil constitutionnel. The Conseil constitutionnel’s key findings were that Internet access could only be suspended through a court procedure, that the presumption of innocence had to be upheld, and that any restriction of Internet access had to be necessary and proportionate. Pertinently, the latter two principles were inscribed into the EU telecoms package. In the era ruled by the Internet, legal developments could not stand by. The struggle for enshrining the Internet as a fundamental freedom is a fascinating example of interdependence between the European Union and the Member States and their respective institutions. In the cases of the French Loi Hadopi and the EU telecoms reform package, political actors at the national and EU levels interacted and invoked political arguments and judicial pronouncements from the 'other' level in order to achieve a common goal. This means that politics as a process tends to cross the formal boundaries of legal systems where circumstances conducive to it arise. European politics, therefore, encompasses not only EU politics but to a great extent also national politics.

Keywords: National parliaments, democracy, interdependence, European Union