January 20, 2011

ACTA resolution contains fundamental flaws

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The resolution on the Anti-Counterfeiting Trade Agreement (ACTA) adopted by the European Parliament on November 24th 2010, contains fundamental flaws. The resolution expresses a belief that ACTA can not change present EU laws. This belief is unfounded and scrutiny reveals that ACTA can and does change present EU laws. The FFII published a document comparing ACTA and EU legislation. European Academics found inconsistencies as well.

What went wrong?

The resolution expresses that ACTA is concerned solely with enforcement measures and does not include provisions modifying the substantive intellectual property rights law of the EU and therefore does not imply any change to present EU laws.

ACTA’s enforcement measures can indeed not change EU substantive intellectual property rights law. But they can and do change EU enforcement law. The Parliament here overlooks that some EU laws, such as the Enforcement of IPR Directive and the IPR Customs Regulation, regard enforcement measures. The source of the misconception is wrong information provided by EU trade Commissioner Karel De Gucht.

On July 13th 2010, during a European Parliament LIBE committee meeting, De Gucht made a confusing statement. Speaking about protection against laptop border searches, the EU IPR Customs Regulation and ACTA, De Gucht said: “This is in fact not part of ACTA, it’s part of the European law, whether you can do that or not. It is part of the material law, ACTA is procedural law. These provisions you do not find them in ACTA, but you have to fall back on either EU law or on national law. That’s the reason you don’t find this in the text of ACTA because ACTA is about procedures, about enforcement. It is not about what you can enforce, it is how you can enforce something. What you can enforce are not part of the material law of the European law in the example that was just given.” (video, at 18 minutes)

Contrary to what De Gucht said, whether border officials can do something or not is not part of material law, but is part of procedural (enforcement) law. The EU IPR Customs Regulation and ACTA both are about enforcement law. By saying that the EU law is in another field, De Gucht wrongly created the impression ACTA can not touch upon EU law. De Gucht mixed up basic legal concepts. The Parliament copied this misconception.

Conflicting with its earlier statement, the resolution later on acknowledges the existence of EU enforcement legislation. The resolution emphasises that ACTA will not change present EU laws in terms of IPR enforcement, because EU law is already considerably more advanced than the current international standards – following another Commission statement.

The EU laws indeed go beyond current international standards. On top of that, ACTA even goes beyond present EU legislation with regards to injunctions, damages, trade mark border measures and criminal measures. Despite prior Parliamentary questions, the Commission failed to address these issues during the legal verification. The Commission promised there would be no harmonisation or changes to EU legislation through the back door, but failed to deliver.