Citizen enjoy a right of access to documents enshrined in the EU treaties. However, when they ask about documents from the ongoing trade negotiations (TTIP, TISA,…) access had usually been refused by the institutions. The reason for that unwillingness is the legal base of the public requests: EC/1049/2001. The EU sunshine law regulation EC/1049/2001 is from 2001 and does not:
– include European case law after 2001
– new rights under the Lisbon treaty
– transparency for trade procedures, even when they enter the regulatory domain
2008 a recast reform was launched. This reform was voted in Parliament but struck down in the Council under the Danish Presidency.
A few years ago, an amendment making sure that parallel importation was not criminalised in the EU disappeared after it was adopted in the European Parliament. This summer, the Chairman of the International Trade committee (INTA), Mr Vital Moreira, rewrote a question the INTA committee asked the Parliament’s Legal Services regarding ACTA (Anti-Counterfeiting Trade Agreement). The INTA Chairman among others things left out a reference regarding parallel importation. Up until now, no member of the INTA committee questioned the behavior of the INTA Chairman. (See update below.)
While prominent legal experts conclude ACTA is not compatible with EU law, EU Treaties and fundamental rights, MEPs (Members of the Parliament) expect the Legal Services to conclude ACTA is fine.
Pedro Velasco Martins, EU ACTA negotiator, today answered FFII’s 30 December 2010 questions on the initialling of ACTA. ACTA was initialed on 25 November 2010, through an electronic procedure. The Commission chief-negotiator initialled all the pages of the text, including the criminal measures. The Commission added negotiators’ notes in the course of the negotiations. The EU has not decided yet whether it will publish its negotiators’ notes.
Here it is, the missing answer to Dutch MEP M. Schaake, which as the document shows was indeed published far too late although referenced in earlier statements to other parties. The Commission arrogant as ever simply disputes the substance. For the first time the Commission states that the provisions in ACTA such as civil and criminal sanctions relate to the “commercial aspects of IPR” legal base in Art 207 of the Treaties, a legal opinion that you would like to see get tested at the ECJ. Furthermore the answer contains an outright contradiction to an earlier statement (“will not require any legislative implementation in Europe.” ).
ACTA Parliament question E-8847 from MEP Marietje Schaakes is still not answered, even if Commission refers to it. E-8294 De Gucht answer to MEP Keller, excerpt:
As the Commission has explained in its detailed response to Question E-8847/10 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. 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. Where is the “detailled response” to Marietje Schaake’s question?
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.
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.
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.
The negotiating parties published the consolidated Anti-Counterfeiting Trade Agreement (ACTA) text. FFII statement:
“The EU still wants punitive measures against patent infringements in ACTA. In our opinion, this is irresponsible. The software field is plagued by patents and holders of huge patent portfolios could decide to eliminate competition from startups, small and medium sized enterprises and open source projects, on their own, or by using a proxy, a patent troll. The inclusion of patents in ACTA also could cause issues with regards to access to medicine, and even more with other technology not protected by the Doha Declaration on TRIPS and Public Health, including much wanted ‘green technology’.”
Berlin, Sept 15th 2010 — A European Parliament majority accepted a written declaration on the Anti-Counterfeiting Trade Agreement (ACTA) which iterates the calls to European Commissioner Karel de Gucht for more legislative transparency. In a speech before the European Parliament Commissioner Karel De Gucht threatened the United States to leave negotiations when geographical indications would be “discriminated”, that is excluded from the scope of the negotiations on ACTA. Geographical indications cover, for instance, camembert de Normandie, parmesan cheese or champagne, and other marks of origin. The United States oppose their inclusion in ACTA. The United States also aim to keep the negotiated ACTA draft text confidential.