[A2k] ACTA: EU Trade Committee not interested in fundamental rights
ante at ffii.org
Fri Aug 5 07:15:47 PDT 2011
Trade Committee not interested in fundamental rights
August 4, 2011
The European Parliament Committee on International Trade requested the
Parliament’s Legal Service an opinion on ACTA (pdf). Compared with the request
US Senator Wyden made, and seen the European academics Opinion on ACTA, the
questions are very narrow. The questions seem carefully designed to minimize
damage to ACTA.
Senator Wyden has asked in an October 8, 2010 letter that the American Law
Division of the Congressional Research Service of the Library of Congress
undertake and provide to Congress: “a written, independent determination of
whether the commitments put forward in the agreement diverge from our domestic
laws or would impeded legislative efforts that are currently underway. I ask
the Division pay particular attention to the provisions relating to
injunctions, damages, and intermediary liability.” It is an open question and
includes whether ACTA would impeded legislative efforts that are currently
underway. This is important for finding a solution for access to orphaned
copyrighted works and patent reform.
A group of prominent European academics published an opinion on ACTA. They
conclude: “Contrary to the European Commission’s repeated statements and the
European Parliament’s resolution of 24 November 2010, certain ACTA provisions
are not entirely compatible with EU law and will directly or indirectly
require additional action on the EU level.” They invite “the European
institutions, in particular the European Parliament, and the national
legislators and governments, to carefully consider the above mentioned points
and, as long as significant deviations from the EU acquis or serious concerns
on fundamental rights, data protection, and a fair balance of interests are
not properly addressed, to withhold consent.” The FFII also published a list
with deviations from current EU law (pdf).
A European Parliament commissioned study agrees on some point with the
academics. Further scrutiny is needed to see whether the academics overstated,
or the study understated the problems. The FFII suggested the Trade Committee
would ask broad questions. But in stead of asking open questions, the Trade
Committee asked very narrow questions: “- The conformity of ACTA with the EU
Acquis with regard to (a) border measures, (b) the criteria for damages in
ACTA in relation to the criterion of “appropriateness of the damage to the
actual prejudice suffered” as envisaged in Directive 2004/48/EC. and (c)
Seen all the questions still open, the request is too narrow. Concerns on
fundamental rights and compliance with the Treaties are missing. Regarding the
criminal measures, the question also does not refer to the European Parliament
position on the criminal measures directive proposal.
The Trade Committee also asked: “Is the Commission obliged to publicly
disclose preparatory works and previous versions of ACTA, according to the
Vienna Convention on Law of Treaties?”
But the point is not whether the Vienna Convention obliges the Commission to
disclose the texts. The point is that without publication, the public and
Parliament are not fully informed about ACTA. ACTA still is a dark horse. The
real question is: is this compatible with the EU Treaties?
Another question: “Is the European Parliament obliged to disclose documents
that originate from another EU institution?” It would be more appropriate to
investigate whether the Parliament can publish the ACTA documents. ACTA is
legislation, it has to be open. The Trade Committee is biased towards secrecy.
The request (OCR by FFII):
Committee on International Trade
Mr. Christian Pennera
Legal Service of the European Parliament
Subject: “Anti-Counterfeiting Trade Agreement” (ACTA)
Dear Mr Pennera,
I would like to request your Service’s opinion on the issue of the Anti-
Counterfeiting Trade Agreement (ACTA). On 24 June 2011, the Commission
forwarded its proposal to the Council (COM(2011)380 – 2011/0167(NLE), and the
Council has just referred it to Parliament under the consent procedure.
As you are certainly aware, the EU and a number of other WTO members began
working on ACTA in 2007. The negotiating parties are Australia, Canada. the
EU, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the
USA. ACTA will provide a WTO-plus legal framework (in addition to the TRIPS)
against counterfeiting and piracy and harmonised rules on civil and criminal
enforcement and on customs procedures, as well as improved cooperation between
authorities and stakeholders.
In this context, the Committee on International Trade would appreciate to
know your opinion on the following matters:
- The legal base or bases for adopting the ACTA. The Commission’s proposal
is based on Article 207 (4). 1st subparagraph. in conjunction with Article
218(6)(a)(v) TFEU. I wonder whether the Legal Service agrees with this choice.
- The conformity of ACTA with the EU Acquis with regard to (a) border
measures, (b) the criteria for damages in ACTA in relation to the criterion of
“appropriateness of the damage to the actual prejudice suffered” as envisaged
in Directive 2004/48/EC. and (c) criminal measures.
- The conformity of ACTA with the existing international obligations of
the EU and its member states: How does the Legal Service evaluate the
relationship between ACTA and the TRIPS Agreement?
- Finally, Parliament and myself have received various requests from NGOs
and Interest Groups for access to ACTA preparatory works as well as requests
that all relevant preparatory documents (drafts distributed by the European
Commission and associated briefing notes from the Commission) received by the
Parliament should be published and/or communicated directly to Stakeholders as
soon as possible: Is the Commission obliged to publicly disclose preparatory
works and previous versions of ACTA, according to the Vienna Convention on Law
of Treaties? Is the European Parliament obliged to disclose documents that
originate from another EU institution?
I thank you in advance for your cooperation.
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