Fundamental rights as external constraints on copyright law: horizontal effect of the EU Charter after Funke Medien and Spiegel Online

The CJEU judgements in Funke Medien and Spiegel Online have been widely construed as rejecting the idea of fundamental rights as external constraints on copyright law. This appears to imply that the proper balance of (fundamental) rights and interests is exclusively struck by copyright law itself, where possible interpreted in light of those rights and interests. To the extent that an accommodating interpretation is not possible, one might fear a conflict with fundamental rights.
I suggest that the rulings in Funke Medien and Spiegel Online must be understood narrowly. First, they do not necessarily imply an outright rejection of horizontal direct effect. Secondly and arguably more importantly, those decisions did not concern the question of remedies. The acquis communau‐ taire has established a flexible approach to remedies which allows them to be refused in appropriate circumstances. Consequently, disproportionate interferences with fundamental rights can be largely avoided.
Although Member States likely possess a wide margin of discretion in tailoring remedies to the cir‐ cumstances of the case, compliance with the EU Charter of Fundamental Rights demands that na‐ tional courts in some cases refuse to enforce copyright. This article includes some suggestions as to the boundaries the Charter might set. Moreover, it is suggested that in Member States where nation‐ al law does not provide courts with any discretion in terms of remedies, for instance by making the grant of a (final) injunction automatic, the offending provision of national law must be disapplied when necessary to ensure that national courts can strike a fair balance.