[A2k] MEP questions Council and Commission on legal basis of negotiating ACTA
malini.aisola at keionline.org
Mon Oct 4 18:09:09 PDT 2010
The following are questions by MEP Ska Keller to the Commission and
Council on the negotiating procedure for ACTA.
ACTA - outstanding issues
While reminding the Commission that the Parliament in its 10
- was "deeply concerned that no legal base was established
before the start of the ACTA negotiations and that parliamentary
approval for the negotiating mandate was not sought";
- instructed the Commission to conduct impact assessments "prior
to any EU agreement on a consolidated ACTA treaty text":
We note that:
- the Commission Trade Spokesperson has informed Members of
Parliament that the negotiators in Tokyo "produced a
consolidated and largely finalized text" and that the Government
of Japan "hosted informal meetings" with business leaders ;
- the Commission has silently withdrawn IPRED2, the criminal
sanctions directive proposal 2005/0127/COD ;
- the Commission relies on the studies made for IPRED2 to assess
the impact of an implementation of ACTA .
1. In the Commission's view, how does the legislative character
of ACTA reflect on obligations under Article 15 of TFEU (good
governance and the participation of civil society), Article 21
of TEU (advancement of human rights and fundamental freedoms)
and the Venice Convention (promoting democracy through law), in
particular relating to enforcement procedures and so called
"cooperative efforts" to address intellectual property rights
infringement in the digital environment?
2. The legal basis for IPRED2, Article 83 TFEU, does not say
Parliament and Council may facilitate mutual recognition of
criminal enforcement by means of trade agreements, but rather
that the ordinary legislative procedure may establish minimum
rules for the approximation of criminal laws and regulations.
How will the Commission ensure that democratic prerogatives of
Parliament previously foreseen for IPRED2 are not bypassed by
ACTA? Is it the Commission's view that ACTA may enter into force
in absence of an EU Acquis on criminal enforcement?
ACTA - "referendum to their respective authorities"
On 2 October 2010, we received a joint statement on behalf of
all negotiating parties to ACTA that a "largely finalized text
of the proposed agreement" will be "submitted ad referendum to
their respective authorities". Moreover, we are aware that the
Presidency has been negotiating the criminal enforcement
provisions in ACTA, in a practice we understand was introduced
under the name of "Friends of the Presidency" aimed at
discussing "any criminal law aspects of the agreement that may
1. Is the Council of the opinion that the Presidency is a
negotiating party to ACTA? If so, can the Council explain in
detail the legal basis for Presidency participation in the
negotiations; the legal basis for the breadth of subject matter
being negotiated by the Presidency; and if the result of
negotiations relating to the Presidency's efforts will be
submitted to a "referendum to their respective authorities"?
2. Can the Council answer in detail, per Member State, which
procedures for ratification are foreseen and their legal basis?
Furthermore, in which Member States have public and
parliamentary consultations on ACTA been held?
3. With regard to the role of the Parliament in upcoming
ratification procedures, does the Council foresee them be
limited to the portion of ACTA which falls within the competence
of the European Union in a similar manner as with agreements
reached in the Uruguay Round?
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