[Ip-health] Can Poland stop ACTA?
ante at ffii.org
Mon Feb 6 08:17:02 PST 2012
Can Poland stop ACTA?
February 4, 2012
Update: I rewrote the text on Monday 6 February.
The EU Council and Commission have opposing opinions on whether Poland can
According to ZDNet, Poland may not ratify ACTA, which could spell the end of
ACTA for the entire European Union:
“Tusk’s backtracking could spell the end of ACTA for the entire European
Union. If Poland or any other EU member state, or the European Parliament
itself, fails to ratify the document, it becomes null and void across the
ZDNet added: “The European Commission confirmed to ZDNet UK that if just one
member state does not ratify ACTA, the deal will not enter into force anywhere
within the EU.”
But an IP Watch article of 21 December by Monika Ermert has opposite
information on the ratification process:
“A spokesperson of the EU Council told Intellectual Property Watch that while
member states would ratify ACTA according to their national laws, the parts of
the agreement that do not touch criminal law issues would fall under the
competence of the Community – and henceforth become valid across all member
The EU Commission and Council provide opposing information on the ratification
If we look at the Lisbon Treaty, the Union is competent with regards to civil
and border measures.  This could suggest that the Council is right.
But the Council spokesperson overlooked something. The Commission is not
exercising the Union’s full competence, it presented the ACTA proposal as a
mixed agreement. Such agreements require the common accord of the Member
States. Poland does have a veto.
The Commission proposal says:
“6. ACTA contains a number of provisions on criminal enforcement that fall
within the scope of Article 83(2) TFEU. Those parts of the agreement, in
distinction to those parts falling under Article 207, fall under the area of
shared competences (Article 2(2) TFEU). Where a matter falls under shared
competence either the European Union or Member States may legislate and adopt
legally binding acts. Regarding the signature and conclusion of ACTA, the
Commission has opted not to propose that the European Union exercise its
potential competence in the area of criminal enforcement pursuant to Article
83(2) TFEU. The Commission considers this appropriate because it has never
been the intention, as regards the negotiation of ACTA to modify the EU acquis
or to harmonise EU legislation as regards criminal enforcement of intellectual
property rights . For this reason, the Commission proposes that ACTA be signed
and concluded both by the EU and by all the Member States.”
The last sentence says: “both by the EU and by all the Member States.”
The ACTA negotiations started under the European Community Nice Treaty. While
the European Court of Justice had given the Community the right to make
criminal law (yes, sounds a lot like a coup d’état), the Community member
states did not accept that. The Commission left the negotiations on the
criminal measures to the member states.
During the negotiations the Lisbon Treaty entered into force, making the Union
in principle competent to make criminal law. But the Commission did not want
to push the limits, avoided the risk of a competence fight (which earlier had
killed the IPRED2 proposal).
So ACTA is presented as a mixed agreement. The rules for that can be found in
the Nice Treaty. Under (Nice) Treaty establishing the European Community art
133.6 “the negotiation of such agreements shall require the common accord of
the Member States”. Common accord: the EU member states do have a veto.
Poland, or any other member state, can stop ACTA.
The Parliament can stop ACTA as well.
And Commission, Council, Parliament and member states can ask the European
Court of Justice whether ACTA is compatible with the Treaties.
 Article 207.4 lists some exceptions where unanimity is needed.
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