December 26, 2010

Alternate Reality

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Transparency of the Anti-Counterfeiting Trade Agreement was widely criticized. This month leaked US diplomatic cables demonstrated that the EU Council rotating presidencies were highly aware of the lack of transparency and due process. Commissioner Karel De Gucht, however, presents to an MEP his arrogant alternate reality.

.. the Commission has carefully ensured, at every step of the negotiations, respect for Article 15 TFEU [*] in particular by providing regular information to civil society and access to documents on the basis of the relevant legislation.

and

Since the entry into force of the Treaty of Lisbon, the Commission has ensured that the results of the negotiations are in line with the general principles governing external relations, on the basis of Article 205 TFEU, which in turn refers to Chapter I of Title V of the Treaty on European Union (which includes Article 21 TEU). The Commission participates in the work of the European Commission for Democracy through Law (the “Venice  Commission”) which is a consultative body but fails to see how ACTA would affect this work.

This was the Question:

In the Commission’s view, how does the legislative character of ACTA reflect on obligations under Article 15 TFEU (good governance and participation of civil society), Article 21 TEU (advancement of human rights and fundamental freedoms) and the Venice Convention (promoting democracy through law), in particular in respect of enforcement procedures and so-called ‘cooperative efforts’ to address infringements of intellectual property rights in the digital environment?

As you can see the question of the MEP was not to remind the Commission of its obligations but to ask how the “legislative nature” reflects on these obligations. Apparently adopting legislative measures by confidential trade agreements does not meet standards in a democratic environment where laws are made by Parliament and receive massive review. Apparently Trade Agreements are instruments for trade matters such as tarrifs and quota for imported and exported goods, not international legislation. Commissioner De Gucht himself highlighted the special circumstances of the ACTA process in an interview with Frankfurter Allgemeine Zeitung:

Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten so.
Parliament gets informed about the progress of the negotiations and can say “Yes” or “No” in the end, nothing more. That applied to international negotiations in all states.

Notabene the Commission is not the elected government of a state. But it is the guardian of the Treaty and the democratic principles enshrined in it.

*) Article 15 (ex Article 255 TEC)
1. 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.
2. The European Parliament shall meet in public, as shall the Council when considering and voting
on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office
in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices
and agencies, whatever their medium, subject to the principles and the conditions to be defined in
accordance with this paragraph. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.
Each institution, body, office or agency shall ensure that its proceedings are transparent and shall
elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in
accordance with the regulations referred to in the second subparagraph. …