We discovered a smoking gun on the criminal sanctions aspect of the Anti-Counterfeiting Trade Agreement (ACTA). A declassified document reveals that the Commission made proposals and fundamentally steered the negotiations on criminal sanctions in ACTA for which no corresponding EU harmonisation exists. There is no “Acquis” element on criminal enforcement of intellectual property rights, yet. Criminal sanctions in ACTA were formally negotiated by the Council “Presidency” on behalf of the EU member states. The findings reveal that the European Commission was much stronger involved than it previously admitted.
For the past past months Commissioner Karel De Gucht cheated the Members of the European Parliament about the lack of competence of the European Union to negotiate ACTA criminal measures, and overplayed the known fact in Plenary that there is no related Acquis existing. Many Members of Parliament trust De Gucht’s promises made that ACTA fully complies with the Acquis. Compliance with the Acquis was an argument for MEPs like German Daniel Caspary to support the controversial Treaty. I think it is a good thing that the acquis communautaire remains unchanged. Now Karel De Gucht is forced to admit that there is no criminal Acquis of the European Union existing and member states have to adapt their law when ACTA gets concluded.
Intellectual Property Watch quotes Axel Metzger, University Hannover:
“All criminal sanctions that go beyond ‘may’ clearly are outside of the EU acquis,” Metzger said.
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.
Parliamentary questions 12 October 2010 E-8295/2010
Question for written answer to the Commission Rule 117
Franziska Keller (Verts/ALE) and Oriol Junqueras Vies (Verts/ALE)
Subject: ACTA — outstanding issues
In its resolution of 10 March 2010, Parliament:
— was ‘deeply concerned that no legal base was established before the start of the ACTA negotiations and that parliamentary approval for the negotiating mandate was not sought’;
— instructed the Commission to conduct impact assessments ‘prior to any EU agreement on a consolidated ACTA treaty text’. A Commission trade spokesperson informed MEPs that the negotiators in Tokyo had ‘produced a consolidated and largely finalised text’ and that the Government of Japan had ‘hosted informal meetings’ with business leaders(1);
The Commission has silently withdrawn the IPRED2 proposal for a directive on criminal sanctions (2005/0127/COD)(2). The Commission relies on the studies produced for IPRED2 to assess the impact of implementing ACTA(3). 1. 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?
The MEPs from the Green Group in the European Parliament ask crucial technical questions about the Anti-Counterfeiting Trade Agreement as “priority questions”. These questions address the tip of an iceberg concerning technical issues with the ACTA, there is much more that can be raised. Any Member of the European Parliament is entitled to ask written and oral questions to the institutions which have to be answered. MEPs are more restricted towards filing priority questions which have to be answered on short notice by the institutions. SKA KELLER: ACTA – competence to negotiate criminal measures
The Criminal Enforcement section of ACTA concern provisions on criminal procedures, criminal liability, criminal offenses, criminal enforcement and penalties.
(Update: 3 January 2011)
The negotiating parties published the final ACTA text. The Anti-Counterfeiting Trade Agreement (ACTA)’s criminal measures criminalise ordinary companies and individuals. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders. A whistle blower or weblog author revealing a document in the public interest, may easily be prosecutable, for instance if the webpage contains advertisements. Remixers and others sharing a file are included if there is an advantage.