[A2k] FFII asks EU Court to accept amicus curiae briefs on ACTA
ante at ffii.org
Thu Nov 22 02:58:48 PST 2012
FFII asks EU Court to accept amicus curiae briefs on ACTA
November 22, 2012
Today the FFII sent an open letter to the President of the Court of Justice of
the European Union, Mr Vassilios Skouris. In the letter the FFII asks the
Court to reconsider the Court’s rules on amicus curiae briefs in opinion
procedures and accept amicus curiae briefs in the ACTA referral.
FFII’s Amicus Curiae Brief to EU Court of Justice and
EU Court refuses FFII amicus curiae brief on ACTA.
Open letter to the President of the Court of Justice of the European Union,
Mr Vassilios Skouris
22 November 2012
Dear Mr Vassilios Skouris,
We are writing to ask you to reconsider the Court’s rules on amicus curiae
briefs in opinion procedures.
The European Commission has asked the Court: "Is the Anti-Counterfeiting Trade
Agreement (ACTA) compatible with the European Treaties, in particular with the
Charter of Fundamental Rights of the European Union?"
On 13 November 2012, the Foundation for a Free Information Infrastructure
(FFII) submitted an amicus curiae brief regarding this referral to the Court.
A few hours later, the Registry of the Court answered: "In reply to your e-
mail, I must inform you that only the Member States, the European Parliament,
the Council and the European Commission may participate in the Opinion
procedure and submit written statements. The Court does not accept amicus
curiae briefs from third parties."
We find the Court’s refusal to accept amicus curiae briefs in opinion
procedures which concern human rights problematic.
In 1994, the Court ruled in an opinion procedure that the Community and its
member states were jointly competent to conclude the Agreement on Trade
Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement
caused serious human rights issues, especially access to medicine problems,
which still have not been solved. Since the TRIPS agreement, new global
intellectual property rights related challenges emerged, such as climate
change and Internet governance. Understandably, ACTA, a TRIPS plus agreement,
with an Internet section, without an environmental impact assessment, and
negotiated in secrecy, met with distrust. Worldwide, citizens have voiced many
concerns over ACTA.
The ACTA referral explicitly concerns human rights. A decision on citizens’
rights, without hearing citizens, creates a real risk of overlooking essential
information. An "about the people, without the people" approach may undermine
the credibility of the Court’s opinion.
In the past, opinion procedures regarded the question whether the Community /
Union was competent to conclude an agreement. In December 2009, with the entry
into force of the Lisbon Treaty, the Charter of Fundamental Rights of the
European Union was given binding legal effect equal to the Treaties. Opinion
procedures can also regard, as in the ACTA case, human rights. The entry into
force of the Lisbon Treaty could have been a moment to reconsider the Court’s
rules on amicus curiae briefs.
Courts have allowed amicus curiae interventions for millenia. The Court allows
them in some disputes. The European Court of Human Rights allows them (with
the permission of the court), and regularly does accept them.
The Court is a strong defender of taking decisions as openly as possible and
as closely as possible to the citizen, for instance in the Turco case. The
Court’s refusal to accept amicus curiae briefs in opinion procedures does not
seem in line with article 1 Treaty on European Union, the Court’s decisions
and the Guiding principles on human rights impact assessments of trade and
investment agreements. 
The EU has an obligation to respect, protect and fulfil human rights, and it
must desist from acts and omissions that create a real risk of nullifying or
impairing these rights. Therefore, an assessment of ACTA has to be as
inclusive as possible. In our opinion, the Court should take notice of at
least three opinions: Korff and Brown, ARTICLE 19 and FFII. 
The ACTA referral is neither a preliminary ruling, nor a case between Member
States, between institutions of the Union or between Member States and
institutions of the Union. The Statute of the Court does not seem to be an
obstacle to accepting amicus curiae briefs. The Court’s rules of procedure do
not mention amicus curiae briefs in opinion procedures, the rules of procedure
do not have to be an obstacle either. The EU is obliged to create an enabling
environment conducive to the universal fulfilment of human rights.
We respectfully ask the Court to reconsider the Court’s rules on amicus curiae
briefs in opinion procedures and accept amicus curiae briefs in the ACTA
On behalf of the Foundation for a Free Information Infrastructure,
 Schutter, De, O., (2011), Report of the Special Rapporteur on the right to
food, Addendum: Guiding principles on human rights impact assessments of trade
and investment agreements, (A/HRC/19/59/Add.5),
 Korff, D. and Brown, I., (2011), Opinion on the compatibility of the Anti-
Counterfeiting Trade Agreement (ACTA) with the European Convention on Human
Rights & the EU Charter of Fundamental Rights, http://rfc.act-on-
ARTICLE 19, (2011), European Parliament: Reject Anti-Counterfeiting Trade
FFII, (2012), FFII amicus curiae brief on ACTA,
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