[Ip-health] Can Poland stop ACTA?

Ante ante at ffii.org
Mon Feb 6 08:17:02 PST 2012


Can Poland stop ACTA?
http://acta.ffii.org/?p=1122

February 4, 2012
By Ante

Update: I rewrote the text on Monday 6 February.

The EU Council and Commission have opposing opinions on whether Poland can 
stop ACTA.

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 
union.”

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 
states.”

The EU Commission and Council provide opposing information on the ratification 
process.

If we look at the Lisbon Treaty, the Union is competent with regards to civil 
and border measures. [1] 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.

Details

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.

[1] Article 207.4 lists some exceptions where unanimity is needed.




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