[A2k] ACTA: Legal Affairs committee meeting 20 December

Ante ante at ffii.org
Wed Dec 21 09:57:34 PST 2011


A EP legal service's representative said that experts agree pretty much with 
the conclusions they reached:  "It appears that the agreement per se does not 
impose any obligation on the Union that is manifestly incompatible with 
fundamental rights."

best,

Ante

Legal Affairs committee meeting 20 December
http://acta.ffii.org/?p=1010
with links

December 21, 2011
By Ante

On 20 December 2011, the European Parliament Legal Affairs committee discussed 
ACTA. Video, debate starts at 11.31

According to MEP Marielle Gallo, rapporteur for ACTA, ACTA is compatible with 
the acquis, the current EU laws. In her draft opinion, which she will launch 
in January, she will try to respond to all criticism raised with respect to 
and against ACTA. She said that her dear colleagues should be aware that ACTA 
is compatible with the Community acquis.

She referred to art 6 ACTA, which is a provision to be applied horizontally 
and which guaranties against all abuse. It also guaranties respect for the 
principle of proportionality. She called to look at ACTA at its merits, and 
forget about rather far-fetched opinions.

She also referred to ACTA art 27, paragraph 2 and 3 containing safeguards.

Beyond the safeguard clauses which are in the agreement, interpretations of 
provisions can only be done in the light of European Court of Justice case 
law, no Institution or member states can go against limits which are 
established by the highest level of EU legal system.

Pirate MEP Christan Engström said the Legal Service’s opinion confirms many 
concerns raised about the ACTA agreement whether it is compatible with 
fundamental rights in the EU and elsewhere in the world. In paragraph 40 the 
language is extremely guarded: "It appears that the agreement per se does not 
impose any obligation on the Union that is manifestly incompatible with 
fundamental rights." If I ever listened to guarded legal language, that’s it. 
The Opinion is quite rightly so guarded because very much depends on how this 
agreement is actually implemented in member states’ law or directives.

He gave the example that damages should be proportional, mentioned that ACTA’s 
damages are based on retail price. A 2 terabyte disk can hold roughly half a 
million songs, if you calculate that at the market price of 1 euro per song, 
which is normal, the damages for having a 2 terabyte disk, full of music, 
would be half a million euro.

"Now would that be proportionate or not? This is not an extreme example, this 
is something that lots of teenagers do. Is it really proportionate that a 
family would have to sell their house and all their possessions if it were 
found out? This legal opinion seems to be of the opinion that well, yes, 
perhaps that could be."

"The lawyers who wrote the assessment for the INTA committee in June this year 
where of the opposite opinion. They said this raises real concerns about 
whether this is proportional or not. The ACTA agreement is at the very least 
borderline when it comes to respect of fundamental rights."

"We have a case where there are opposing opinions from quite serious and 
qualified lawyers at both sides. The ones of the INTA assessment saying this is 
probably not proportionate, the legal service suggesting may be it is or not."

"This strengthens the case for what we are asking for that we should send the 
ACTA agreement to the European Court of Justice to get clear and proper 
guidance as to how it should be implemented, if it can be implemented in a way 
that is compatible with fundamental rights and the acquis."

Mr Engström said the legal service mentioned that three strikes were taken 
out. A year ago the Commission had replied to Engström’s question that three 
strikes never were discussed.

"As the legal service points out, the problem with the ACTA agreement is that 
it is very vague. It is not at all obvious how various things should be 
interpreted."

"One of the core aspects of the ACTA agreement is cooperation between rights 
holders and Internet service providers and the business community in general. 
Earlier is was clear that meant three strikes. But now it is unclear what this 
cooperation is supposed to mean."

Mr Engström mentioned that China is not a party to ACTA, and asked whether 
ACTA is worthwhile at all. With signing ACTA we will lose all our moral high 
ground in relation to China.

Liberal MEP Thein supported transparency and the call for a European Court 
opinion.

Austrian Green MEP Eva Lichtenberger said we have to get clarification from the 
Court and legal certainty. These things can be used against citizens and also 
against competitors.

A EP legal service's representative said that experts agree pretty much with 
the conclusions they reached. In the draft agreement there is no provision 
allowing us to conclude that there is a contradiction per se with fundamental 
rights, of course, obviously, you have to look at the application of such 
provisions. He said the Parliament can ask the European Court of Justice an 
opinion on ACTA.

He said that regarding access to the legal service’s opinions the Secretary-
General was the final authority.

Mrs Gallo said that asking the Court an opinion on ACTA would lose two years 
and that would have disastrous effects on the economy of the EU.

Comment: It is rather shocking the legal service’s representative said that 
experts agree pretty much with the conclusions they reached. It is rather the 
opposite. See the Further analyses section of our 19 December letter.

For instance, Korff and Brown: “Human rights were effective ignored, apart from 
the inclusion in the Agreement of vague and ineffective ‘without prejudice’ 
clauses that fail to redress the balance, and are little more than fig-leaves.”

See also TACD.




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