[Ip-health] Legal questions about ACTA

Ante ante at ffii.org
Mon Jun 20 11:22:51 PDT 2011

(with links)

Legal questions about ACTA
June 20, 2011
By Ante

Sources say that the European Parliament's Trade Committee (INTA) will 
tomorrow consider asking the Parliament’s Legal service to answer questions 
about ACTA (Anti-Counterfeiting Trade Agreement). Here are some questions the 
FFII would like to suggest. The questions may resolve uncertainties regarding 

1. Does ACTA deviate from the EU acquis?

In January 2011, European academics issued an “Opinion of European Academics 
on ACTA“. The academics invite the European institutions, in particular the 
European Parliament, and the national legislators and governments to withhold 
consent of ACTA, “as long as significant deviations from the EU acquis or 
serious concerns on fundamental rights, data protection, and a fair balance of 
interests are not properly addressed”.

In April 2011, the European Commission’s services put on-line comments to the 
European Academics’ Opinion on ACTA. The Commission denies that ACTA is 
incompatible with EU law. The Commission’s services’ comments met criticism 
(IP-Watch / FFII)

2. Does ACTA endanger fundamental rights?

The European academics noted serious concerns on fundamental rights. UN 
Special Rapporteur on freedom of expression Frank La Rue warned that fearful 
Governments are increasingly restricting the flow of information on the 

3. Is the EU competent to ratify ACTA’s criminal measures?

The EU power to negotiate criminal measures in trade agreements is not 
unlimited. The criminal measures in trade agreements are limited by the same 
rules that limit the power to make internal EU legislation (Art 207.6 TFEU). 
Criminal IP measures have to be based on art 83.2 TFEU, the criminal measures 
have to be proven essential. This proof is missing.

4. Does ACTA comply with the UN International Covenant on Economic, Social and 
Cultural Rights and art 3.3 TEU?

The Media Piracy in Emerging Economies report observes that relative to local 
incomes in Brazil, Russia, or South Africa, the price of a CD, DVD, or copy of 
Microsoft Office is five to ten times higher than in the United States or Europe. 
Exclusionary pricing promotes piracy. As long as IP protected goods – whether 
they be medicines or media products – are priced in middle income countries as 
luxury goods affordable only to the rich, there will be a strong pull of the 
majority of consumers toward competitively produced products.

Some 90% of the people in emerging markets can only turn to illegal media 
copies to enjoy cultural media products. ACTA confronts these people with 
criminal and high civil measures. The UN International Covenant on Economic, 
Social and Cultural Rights recognizes the right of everyone to take part in 
cultural life; and to enjoy the benefits of scientific progress and its 
applications (art 15.1 (a) and (b)).

Art 3.3 TEU: [The Union] “shall combat social exclusion and discrimination, 
and shall promote social justice and protection (…)” (second paragraph)

5. Was the agreement to keep ACTA negotiations confidential in violation with 
the Treaties?

Art 1 TEU: “This Treaty marks a new stage in the process of creating an ever 
closer union among the peoples of Europe, in which decisions are taken as 
openly as possible and as closely as possible to the citizen.”

Art 15.1 TFEU: “In order to promote good governance and ensure the 
participation of civil society, the Union institutions, bodies, offices and 
agencies shall conduct their work as openly as possible”

The Commission agreed on secrecy while ACTA contains norm setting.

6. Does ACTA comply with art 3.3 TEU?

Art 3.3 TEU: “The Union shall establish an internal market. It shall work for 
the sustainable development of Europe based on balanced economic growth and 
price stability, a highly competitive social market economy, aiming at full 
employment and social progress, and a high level of protection and improvement 
of the quality of the environment. It shall promote scientific and 
technological advance.” (first paragraph)

The Commission did not make an impact assessment on the effects ACTA may have 
on the diffusion of green technology, needed to fight climate change. The lack 
of impact assessments makes it impossible to establish whether ACTA complies 
with art 3.3 TEU.

7. Does ACTA comply with art 3.5 TEU?

Art 3.5 TEU: “In its relations with the wider world, the Union shall uphold 
and promote its values and interests and contribute to the protection of its 
citizens. It shall contribute to peace, security, the sustainable development 
of the Earth, solidarity and mutual respect among peoples, free and fair 
trade, eradication of poverty and the protection of human rights, in 
particular the rights of the child, as well as to the strict observance and 
the development of international law, including respect for the principles of 
the United Nations Charter.”

The issues noted above may indicate that ACTA does not comply with art 3.5 
TEU. Furthermore, the Commission did not make an impact assessment on the 
effects ACTA may have on access to medicine.

8. Does ACTA comply with the principle of proportionality?

ACTA’s intrusive criminal measures and other articles may not be proportional.

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