Wednesday, 5 October 2011

Greens challenge ACTA legality

The European Commission has made two connected ACTA proposals:

Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America; Brussels, 24.6.2011 COM(2011) 379 final

Proposal for a COUNCIL DECISION on the conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America; Brussels, 24.6.2011 COM(2011) 380 final

The Council needs the consent of the European Parliament before the conclusion of the the agreement. See Article 218(6)(a)(v) TFEU. You can follow the procedure on Oeil, the Legislative Observatory of the EP, under the reference 2011/0167 (NLE).


Commission asserts

The European Commission knows that the less than open negotiating process leading to ACTA increased mistrust in many quarters. Some of the issues and proposals discussed during the negotiations have been criticised on Constitutional and civil rights grounds, as well as for being slanted in favour of big business interests – holders of intellectual property rights (IPR) - against the wider public (citizens, consumers, other users).

In the superficial and brief explanatory memorandum, which seems to be identical in the signing and the conslusion proposals, the Commission tries to sell the benefits of stricter IPR enforcement in international trade. It also makes assertions intended to eliminate obstacles, calm doubts and to promote the smooth passage of the proposal. Here a few picks:


* ACTA does not modify the EU acquis, because EU law is already considerably more advanced than the current international standards

* ACTA is a balanced agreement, because it fully respects the rights of citizens and the concerns of important stakeholders such as consumers, internet providers and partners in developing countries

* It has never been the intention, as regards the negotiation of ACTA to modify the EU acquis or to harmonise EU legislation as regards criminal enforcement of intellectual property rights


Fundamental Rights

The Green group in the European Parliament has constantly scrutinised supposedly illiberal proposals from the Commission or member states in relation to the digital environment and the Internet.

This time the Greens/EFA have commissioned a legal study of the compatibility of ACTA with civil rights. The press release offers the conclusions in a nutshell: New study underlines rights concerns with ACTA, strengthens calls for deal to be scrapped.

Yesterday, the Green MEP Jan Philipp Albrecht said that the ACTA agreement violates binding fundamental rights, and that the EU and its member states have a duty to scrap the ACTA agreement as it stands.

Those who are interested in the individual arguments, can read the full study, or at least the Summary and Conclusions (page 58-61):

Douwe Korff & Ian Brown: OPINION on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights

The experts conclude:

Our analysis shows that ACTA, as currently drafted, seriously threatens fundamental rights in the EU and in other countries, at various levels.

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The assertions by the European Commission are not enough. The European Parliament and national parliaments need to look closely at the legal implications of ACTA, however keen they might be to promote the interests of IPR holders in international trade and the internal market.



Ralf Grahn