December 5, 2010

Beyond Wikileaks: How to get legal access to ACTA documents

Print More

In a Guardian interview this week Wikileaks founder Julian Assange stressed the importance of their disclosure of the secret Anti-Counterfeiting Agreement (ACTA). European observers do not have to rely on leaks because public transparency is a right of citizens under the Lisbon treaty.

You can request legal access to ACTA related documents from the Council. Either documents are available through the register or for the confidential ones just fill out a form with your address and mention the requested document numbers. The Council will either enable public access to the documents and sent you a pdf or deny your request and state reasons for that or they sent you a crippled, a redacted version. If your request is refused you can file a confirmatory application and when that is denied again, you can go to court or complain at the EU ombudsman. In the case of ACTA the confidentiality at the Council was so rigid. Many first applications were rejected which is quite unusual. Therefore there are quite some confirmatory requests for public access to ACTA documents in the document archive of the Council, here is a recent confirmatory application:

[Confirmatory application sent by e-mail on 22 November 2010 – 13:39]
Dear Mr Thomsen,
I hereby submit a confirmatory application in case 10/2076-nh/ank, on the following grounds:

I. The European Parliament has now called on the other institutions to allow public access to ACTA documentation on at least four occasions, in resolutions and by a written declaration. It therefore seems a foregone conclusion that there is no justification for assuming a “public interest” in keeping this documentation confidential. The Article 207 procedure is specifically required to abide by the principles set out in Article 21 of the EU Treaty; the public interest must therefore be defined on a democratic basis, and the best way of doing that is through parliament.

II. As you will be aware, criminal provisions for the enforcement of intellectual property rights are not part of the acquis at present.

Where such provisions are needed at European level, the “ordinary legislative procedure” has to be followed, with due regard for the specific conditions of Article 83(2) TFEU, to incorporate criminal sanctions into the acquis.

The Member States would first be required to harmonise criminal enforcement in Europe by European law. Given this “gap” in the acquis, negotiating criminal sanctions in this area with third countries may well be in breach of the Treaties and fails to take account of the European Parliament’s prerogatives. It may be that Article 207 TFEU does not provide a proper legal basis for negotiations of this type with third countries. Legislation on enforcement, especially in criminal matters, goes beyond “commercial aspects of intellectual property” within the meaning of Article 207. Member States are not allowed to “change forum” by bringing in third countries, undermining the European Parliament’s extended powers post Lisbon.

In the European Parliament recently, Trade Commissioner De Gucht claimed that the term acquis applied only to substantive law, as if implementing legislation such as Directive 2004/48/EC were not part of the acquis. He said that the ACTA was “about the enforcement of existing law, and that is why I have repeatedly stipulated that we are not going to change the acquis communautaire. The acquis communautaire is about substantive law and we are not changing that.” In other statements the Trade Directorate confuses the corpus of existing EU law (acquis communautaire) with the question of European treaty options for EU legislation. This curious understanding of the law on the part of the Commission shows the need for scrutiny, for which transparency about the conduct of the negotiations is essential. It is particularly unclear on what legal basis the Council Presidency is conducting negotiations on criminal sanctions.

There is therefore considerable public interest in uncovering any abuse of authority or any Treaty violation in this case. Protecting the public interest in regard to international relations outweighs the institutional interest in concealing the fact that the Presidency does not have the authority to conduct these negotiations. Conducting negotiations without having an adequate basis in the European Treaties is prejudicial to the EU’s international relations and transparency is needed to clarify these practices. The question whether Europe is conducting these negotiations legally can only be answered by looking at the documents.

If there were no proper negotiating remit, this would adversely affect the atmosphere of trust in future negotiations with third countries and hamper open and constructive cooperation.

III. Article 15(1) TFEU places a duty on the institutions to be as open as possible. Article 15(2) applies to the Council and its Presidency. There is no legal basis in the Treaties for withholding information or for concluding confidentiality agreements with third countries. The requirement for openness under Article 15(2) and (3) takes precedence, particularly in legislative matters. These are purely legislative issues, being pursued under the cover of a trade agreement in form, but not in substance. It is clear from the outset that there is no basis in the EU Treaties for holding secret legislative negotiations with third countries. Retrospectively applying Article 4 of Regulation (EC) No 1049/2001 (which has not yet been adjusted to the Lisbon arrangements, by the way) does not make up for the fact that there is no basis in law for keeping these negotiations confidential.

The classification of documents is irrelevant for the purposes of Article 15 of Regulation (EC) No 1049/2001. Furthermore, the Council can always withdraw its negotiating directives and terminate the negotiations if third countries make procedural requests which would prevent the Union from complying with the EU Treaty, in particular rights under Article 15 TFEU.

IV. Apart from genuine trade agreements, it is not usual for international legislative or regulatory dialogue to be kept confidential. It is customary for negotiations to be open in the case of legislative agreements, since disclosure of the entire negotiating history is essential for subsequent interpretation of the law (“historical method of interpretation”). Under Article 25 of the German Basic Law, the general rules of international law form an integral part of federal law and are therefore relevant to the Presidency’s representation of Germany. The principles of Article 21 of the EU Treaty in conjunction with Article 207 TFEU apply.

I would therefore ask you to reconsider your opinion.

Yours sincerely