[A2k] [acta] Suggestion for a question to the Court

Ante ante at ffii.org
Wed Feb 15 04:03:39 PST 2012

Suggestion for a question to the Court
with links

February 15, 2012
By Ante

Yesterday, the Dutch Parliament adopted a resolution asking the minister not 
to sign ACTA as long as it is not conclusively established that ACTA does not 
conflict with fundamental rights. The resolution mentions the possibility to 
ask the Court of Justice an opinion on ACTA.

Here is my suggestion for a question:

Whereas ACTA has been negotiated behind closed doors,

Whereas the European Academics Opinion on ACTA and the EP INTA study point out 
possible incompatibility with the acquis with regards to retail price damages, 
injunctions, provisional measures and border measures,

Whereas Korff and Brown apply fair balance tests to ACTA and conclude that, in 
their opinion, these tests show ACTA is manifestly incompatible with 
fundamental rights, rendering the safeguards in ACTA inadequate,

Whereas the European Academics Opinion, the EP INTA study and Korff and Brown 
note problems with the definition of commercial scale and note that the 
definition of the crime is vague and does not seem to have a de minimis clause, 
nor a general interest exemption,

Whereas, according to the Media Piracy in Emerging Economies study, in 
emerging economies, CDs and DVDs are often sold for the same prices as in the 
US and Europe; and relative to local incomes in Brazil, Russia, or South 
Africa, the price of a CD, DVD, or copy of Microsoft Office is five to ten times 
higher than in the United States or Europe; there is no distribution of legal 
CDs and DVDs outside the capitals and some 90% of the people in emerging 
economies can only turn to illegal media copies,

Whereas, in the opinion of Flynn and Madhani, ACTA is likely to make affordable 
medicines more scarce and dear in many countries; and ACTA only contains a 
reference to the Doha Declaration on the TRIPS Agreement and Public Health in 
the non binding preamble; and DG Trade uses a more limited interpretation of 
the Doha Declaration than the WTO; and ACTA has stronger measures than TRIPS 
and allegedly even stronger than the EU acquis,

Is ACTA compatible with the Treaties, and specifically with articles 1, 3.3, 
3.5, 5 and 21 TEU and with art 15.1 (a) and (b) UN International Covenant on 
Economic, Social and Cultural Rights?


The question is based on our analysis "EP legal service consistently overlooks 
known issues with ACTA".

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