On Monday 21 March 2011, the Legal Affairs Committee may vote on a proposal to ask the European Court of Justice (ECJ) an opinion on the Anti-Counterfeiting Trade Agreement (ACTA). The FFII strongly supports asking the ECJ an opinion. Unbalanced enforcement measures may heighten market entrance risks for innovators. Startup companies are often confronted with patent minefields. Even a mere allegation of infringement may easily lead to market exclusion. Startup companies often do not have enough resources to litigate.
A group of prominent European academics published an opinion on ACTA. They conclude: “Contrary to the European Commission’s repeated statements and the European Parliament’s resolution of 24 November 2010, certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level.” They invite “the European institutions, in particular the European Parliament, and the national legislators and governments, to carefully consider the above mentioned points and, 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, to withhold consent.”
For the sake of startup companies, enforcement measures beyond current EU legislation should be avoided. These “acquis plus” measures did not receive democratic scrutiny. It is questionable whether such measures are compatible with the Treaties.