Modalities of Fundamental Rights Balancing in EU Copyright Law: Understanding the Use and Abuse of the EU Charter and the Concept of “Fair Balance”

This article critically examines the ECJ’s use of fundamental rights and balancing rhetoric in its copyright case law. It distinguishes between its use in two main contexts: the interpretation of EU secondary legislation itself and the delineation of the limits of the discretion left to Member States in that legislation. It explains how the ECJ, despite heavy use of balancing rhetoric, applies context-specific techniques to avoid actual substantive balancing of normative arguments and suggests that it has context-specific reasons for doing so. This context-sensitive examination of the case law not only helps us to better understand the problems with the ECJ’s reliance on balancing rhetoric, but it also elucidates the relationship between balancing by the ECJ and balancing in individual cases by national courts, as well as between the EU Charter and national fundamental rights