[A2k] ACTA: EU Trade Committee not interested in fundamental rights

Ante ante at ffii.org
Fri Aug 5 07:15:47 PDT 2011


http://acta.ffii.org/?p=702
with links


Trade Committee not interested in fundamental rights
August 4, 2011
By Ante

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) 
criminal measures.”

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
    The Chairman
    AM/ZU
    d(2011) 35697

    312222 18.07.2011
    `
    Mr. Christian Pennera
    Jurisconsult
    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.

    Yours sincerely

    Vital Moreira





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