[Ip-health] MEP questions Council and Commission on legal basis of negotiating ACTA

Malini Aisola malini.aisola at keionline.org
Mon Oct 4 18:09:09 PDT 2010

The following are questions by MEP Ska Keller to the Commission and
Council on the negotiating procedure for ACTA. 


        ACTA - outstanding issues
        While reminding the Commission that the Parliament in its 10
        March Resolution:
        - was "deeply concerned that no legal base was established
        before the start of the ACTA negotiations and that parliamentary
        approval for the negotiating mandate was not sought";
        - instructed the Commission to conduct impact assessments "prior
        to any EU agreement on a consolidated ACTA treaty text":
        We note that:
        - the Commission Trade Spokesperson has informed Members of
        Parliament that the negotiators in Tokyo "produced a
        consolidated and largely finalized text" and that the Government
        of Japan "hosted informal meetings" with business leaders [1];
        - the Commission has silently withdrawn IPRED2, the criminal
        sanctions directive proposal 2005/0127/COD [2];
        - the Commission relies on the studies made for IPRED2 to assess
        the impact of an implementation of ACTA [3].
        1. In the Commission's view, how does the legislative character
        of ACTA reflect on obligations under Article 15 of TFEU (good
        governance and the participation of civil society), Article 21
        of TEU (advancement of human rights and fundamental freedoms)
        and the Venice Convention (promoting democracy through law), in
        particular relating to enforcement procedures and so called
        "cooperative efforts" to address intellectual property rights
        infringement in the digital environment?
        2. The legal basis for IPRED2, Article 83 TFEU, does not say
        Parliament and Council may facilitate mutual recognition of
        criminal enforcement by means of trade agreements, but rather
        that the ordinary legislative procedure may establish minimum
        rules for the approximation of criminal laws and regulations.
        How will the Commission ensure that democratic prerogatives of
        Parliament previously foreseen for IPRED2 are not bypassed by
        ACTA? Is it the Commission's view that ACTA may enter into force
        in absence of an EU Acquis on criminal enforcement?
        [3] http://en.act-on-acta.eu/E_4292_10


        ACTA - "referendum to their respective authorities"
        On 2 October 2010, we received a joint statement[1] on behalf of
        all negotiating parties to ACTA that a "largely finalized text
        of the proposed agreement" will be "submitted ad referendum to
        their respective authorities". Moreover, we are aware that the
        Presidency has been negotiating the criminal enforcement
        provisions in ACTA, in a practice we understand was introduced
        under the name of "Friends of the Presidency" aimed at
        discussing "any criminal law aspects of the agreement that may
        1. Is the Council of the opinion that the Presidency is a
        negotiating party to ACTA? If so, can the Council explain in
        detail the legal basis for Presidency participation in the
        negotiations; the legal basis for the breadth of subject matter
        being negotiated by the Presidency; and if the result of
        negotiations relating to the Presidency's efforts will be
        submitted to a "referendum to their respective authorities"?
        2. Can the Council answer in detail, per Member State, which
        procedures for ratification are foreseen and their legal basis?
        Furthermore, in which Member States have public and
        parliamentary consultations on ACTA been held? 
        3. With regard to the role of the Parliament in upcoming
        ratification procedures, does the Council foresee them be
        limited to the portion of ACTA which falls within the competence
        of the European Union in a similar manner as with agreements
        reached in the Uruguay Round[3]?
        [2] http://www.se2009.eu/en/meetings_news/1.5187

Malini Aisola
Knowledge Ecology International
1621 Connecticut Avenue NW, Suite 500, Washington DC 20009
malini.aisola at keionline.org|Tel: +1.202.332.2670|Fax: +1.202.332.2673

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