[A2k] ACTA resolution contains fundamental flaws

Ante ante at ffii.org
Thu Jan 20 08:18:07 PST 2011

A group of prominent European academics has released today an opinion on the 
Anti-Counterfeiting Trade Agreement (ACTA). The opinion identifies the most 
critical aspects of ACTA and invites European and national institutions to 
carefully consider the opinion before ratifying the
Agreement or withholding consent. 


Below an FFII blog post explaining European Parliament resolution flaws 
originate in Commission statements. 


ACTA resolution contains fundamental flaws
January 20, 2011
By Ante

The resolution on the Anti-Counterfeiting Trade Agreement (ACTA) adopted by 
the European Parliament on November 24th 2010, contains fundamental flaws. The 
resolution expresses a belief that ACTA can not change present EU laws. This 
belief is unfounded and scrutiny reveals that ACTA can and does change present 
EU laws. The FFII published a document comparing ACTA and EU legislation. 
European Academics found inconsistencies as well.

What went wrong?

The resolution expresses that ACTA is concerned solely with enforcement 
measures and does not include provisions modifying the substantive 
intellectual property rights law of the EU and therefore does not imply any 
change to present EU laws.

ACTA’s enforcement measures can indeed not change EU substantive intellectual 
property rights law. But they can and do change EU enforcement law. The 
Parliament here overlooks that some EU laws, such as the Enforcement of IPR 
Directive and the IPR Customs Regulation, regard enforcement measures. The 
source of the misconception is wrong information provided by EU trade 
Commissioner Karel De Gucht.

On July 13th 2010, during a European Parliament LIBE committee meeting, De 
Gucht made a confusing statement. Speaking about protection against laptop 
border searches, the EU IPR Customs Regulation and ACTA, De Gucht said: “This 
is in fact not part of ACTA, it’s part of the European law, whether you can do 
that or not. It is part of the material law, ACTA is procedural law. These 
provisions you do not find them in ACTA, but you have to fall back on either 
EU law or on national law. That’s the reason you don’t find this in the text 
of ACTA because ACTA is about procedures, about enforcement. It is not about 
what you can enforce, it is how you can enforce something. What you can 
enforce are not part of the material law of the European law in the example 
that was just given.” (video, at 18 minutes)

Contrary to what De Gucht said, whether border officials can do something or 
not is not part of material law, but is part of procedural (enforcement) law. 
The EU IPR Customs Regulation and ACTA both are about enforcement law. By 
saying that the EU law is in another field, De Gucht wrongly created the 
impression ACTA can not touch upon EU law. De Gucht mixed up basic legal 
concepts. The Parliament copied this misconception.

Conflicting with its earlier statement, the resolution later on acknowledges 
the existence of EU enforcement legislation. The resolution emphasises that 
ACTA will not change present EU laws in terms of IPR enforcement, because EU 
law is already considerably more advanced than the current international 
standards – following another Commission statement.

The EU laws indeed go beyond current international standards. On top of that, 
ACTA even goes beyond present EU legislation with regards to injunctions, 
damages, trade mark border measures and criminal measures. Despite prior 
Parliamentary questions, the Commission failed to address these issues during 
the legal verification. The Commission promised there would be no 
harmonisation or changes to EU legislation through the back door, but failed 
to deliver.


vriendelijke groet,


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