[A2k] (ACTA) Certainly, the professors should know better

Ante ante at ffii.org
Tue Jan 25 10:14:39 PST 2011


Certainly, the professors should know better
January 25, 2011
By Ante

Already on 24 or 25 November 2010, the Commission and Council Presidency
initialled ACTA. This became clear at the Ad hoc meeting –
Anti-Counterfeiting Trade Agreement (ACTA), a DG Trade meeting to inform
and consult civil society about ACTA. Mr Pedro Velasco Martins, Deputy
Head of Unit, Public Procurement and Intellectual Property
Directorate-General for Trade, represented the Commission.

Mr Velasco Martins stated that ACTA will not change the current EU
legislation, EU law provides higher enforcement levels than ACTA. The
current EU legislation, the acquis, is scrupulously respected. He regarded
fundamental rights as a non issue.

The Signatories of the Opinion of European Academics on the
Anti-Counterfeiting Trade Agreement disagree: “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.”

Confronted with the Opinion, Mr Velasco Martins said they will study it
later. At first sight, it didn’t look convincing to him. He ridiculed the
issues raised in the document with remarks like: Certainly, the professors
should know better.

The game the Commission plays became clear when Mr Velasco Martins said:
“ACTA may be approved even if it goes beyond the acquis.” The Commission
will just deny ACTA goes beyond the acquis, the current legislation, and
hopes to get it adopted. And then, ACTA will bind the EU.

The Commission is very happy with the criminal measures. Note that,
according to our analysis, ACTA’s criminal measures criminalise ordinary
companies and individuals.

The EU can only harmonise criminal measures if approximation of criminal
laws and regulations of its Member States proves essential to ensure the
effective implementation of a Union policy. The same is true for
harmonisation by way of trade agreement.

Vrijschrift asked for proof the criminal measures are essential. Mr
Velasco Martins seemed not to understand it makes a difference whether
ACTA’s criminal measures bind the member states or the member states and
the EU. This made his earlier statement that ACTA will not bind the EU
less convincing. He didn’t know the construction used for the TRIPS
agreement (criminal measures only signed by the member states), nor the
European Court ruling regarding TRIPS.

David Hammerstein mentioned that the US does not regard ACTA as a treaty,
that ACTA will bind the EU, not the US. Mr Velasco Martins said that under
the Geneva Convention (that is what I wrote down) ACTA is a treaty and the
US is bound by it. He probably meant the Vienna Convention (and possibly
also said that). Note that the US did not ratify the Vienna Convention on
the law of Treaties. Hammerstein’s remarks still stand.

Mr Velasco Martins did not agree that it is a strategical mistake to
accept more obligations than other parties.

ACTA was negotiated as a mixed agreement. Now the negotiations are
concluded, the competence will be settled soon. It may have to be ratified
as a mixed agreement, meaning the member states have to ratify as well,
giving the national parliament power over ACTA.

Mr Velasco Martins also said China could have entered the negotiations at
the preparatory stage.

More questions were asked, see also the Tweets about the meeting.

vriendelijke groet,


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