January 25, 2011

Certainly, the professors should know better

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Already on 24 or 25 November 2010, the Commission and Council Presidency initialled ACTA. This became clear at the Ad hoc meeting – Anti-Counterfeiting Trade Agreement (ACTA), a DG Trade meeting to inform and consult civil society about ACTA. Mr Pedro Velasco Martins, Deputy Head of Unit, Public Procurement and Intellectual Property Directorate-General for Trade, represented the Commission.

Mr Velasco Martins stated that ACTA will not change the current EU legislation, EU law provides higher enforcement levels than ACTA. The current EU legislation, the acquis, is scrupulously respected. He regarded fundamental rights as a “non issue”. (43 MB mp3 sound recording, at 10.30 minutes)

The Signatories of the Opinion of European Academics on the Anti-Counterfeiting Trade Agreement disagree: “Contrary to the European Commission’s repeated statements and the European Parliament’s resolution of 24 November 2010, certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level.”

Confronted with the Opinion, Mr Velasco Martins said: “We intent to look at it carefully and when we have to reply, we will reply in detail” and “In spite of some catchy titles here and there, when we look at the content we are not talking any more about fundamental rights and civil liberties and this and that, we are talking about different legal interpretations, that are legitimate, that can be discussed, sometimes that can be explained. This brings the debate into much more rational and realistic area, and we are happy for that.” (at 27 minutes)

Alas for Mr Velasco Martins, the Opinion does mention fundamental rights: “the Signatories of the Opinion invite the European institutions, in particular the European Parliament, and the national legislators and governments, to carefully consider the above mentioned points and, as long as significant
deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressed, to withhold consent.”

The Opinion gives many examples of missing safegards. Mr Velasco Martins just said that it is not necessary to repeat the safeguards already available in the TRIPS-agreement: “ACTA certainly does not repeal (?) or contradict any obvious safeguard that are put in place, there is no need to repeat what is obvious”. His remark was beside the point, for instance because, since ACTA provisions, “after strengthening enforcement measures, fail to introduce corresponding safeguarding measures”. The old safeguards are not enough then.

He also said the professors should know better: “I think any lawyer should know, and certainly these proficient professors should know, in an international treaty, when you have a “may” in stead of a “shall”, this means something. It means that this option was not acceptable, was not in line with the legislation of some of the countries, and therefore the possibility is open there for some to put it in place, for other not to do it. This seems quite obvious and nevertheless it is a criticism that is made.” (at 31 minutes)

The professors write: “recognizing that (…) (g) certain controversial provisions were not fully removed from ACTA but are in some cases formulated as non-binding (“may”) clauses, which signifies international political incitement to implement these clauses into contracting Party`s law;”

Mr Velasco Martins was wrong, the professors certainly do know the difference between shall and may. They criticise incitement.

I see a pattern here. The Commission uses cheap, deceptive, arguments. That works very well. Earlier, wrong information ended up in the European Parliament ACTA resolution.

Mr Velasco Martins stated that if ACTA goes beyond the current legislation, the Commission violated its mandate. Questioned whether ACTA will have to be re-negotiated if analysis shows that ACTA goes beyond the current EU legislation, Velasco Martins said: “No, that is not correct. If that would happen, our initial analysis doesn’t show any indication that that would be the case, but we are speaking theoretically, if that would happen, it could mean one thing, that the Commission had gone beyond its mandate, that is perfectly possible also in negotiations. (…) Then there are institutions who adopt the final treaty. (…) Even it goes beyond the acquis, it can be approved. That is a fact that belongs to Council and European Parliament. Council and European Parliament can adopt ACTA if it goes beyond the EU acquis. But here we are really talking theoretically.” (at 1.33.00)

Not that theoretically, seen the Opinion (and the FFII analysis).

After all assurances that “ACTA does not require the introduction of any modification of EU legislation and will not require any legislative implementation in Europe”, the Commission admits it could just as well happen. Legislation ex machina.

Mr Velasco Martins referred to the Position of the European Parliament adopted at first reading on 25 April 2007 with a view to the adoption of Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (EP-PE_TC1-COD(2005)0127) as “an opinion”.

Regarding the criminal measures, “The Commission is very happy with this chapter, we think it is a very good chapter” (at 7.30)

Note that, according to our analysis, ACTA’s criminal measures criminalise ordinary companies and individuals. As the guardian of the treaties, the Commission should note they are disproportional.

The EU can only harmonise criminal measures if approximation of criminal laws and regulations of its Member States proves essential to ensure the effective implementation of a Union policy. The same is true for harmonisation by way of trade agreement.

Vrijschrift asked for proof the criminal measures are essential. Mr Velasco Martins seemed not to understand it makes a difference whether ACTA’s criminal measures bind the member states or the member states and the EU. This made his earlier statement that ACTA will not bind the EU less convincing. He didn’t know the construction used for the TRIPS agreement (criminal measures only signed by the member states), nor the European Court ruling regarding TRIPS.

David Hammerstein mentioned that the US does not regard ACTA as a treaty, that ACTA will bind the EU, not the US. Mr Velasco Martins said that under the Vienna Convention ACTA is a treaty and the US is bound by it. (at 32.50) Note that the US did not ratify the Vienna Convention on the law of Treaties. Hammerstein’s remarks still stand. The Commission’s reply fails.

Parties may exclude patents from the scope of ACTA. The US, long time ardent supporter of stronger enforcement, will exclude patents from the scope of ACTA. This will give the US the freedom to reform its patent enforcement regime. China is building up a massive patent portfolio. When the competitive advantage shifts to China, the EU may like to assess its patent policy. But, after signing ACTA, the EU will have no way to reform its intellectual property rights enforcement regime.

Mr Velasco Martins did not agree that it is a strategical mistake to accept more obligations than other parties. Mr Velasco Martins: “History will tell which one of us is right, what I can tell you is that for the moment our competitive concern, for instance with China, is precisely to one we trying to address with ACTA, including infringements of patents. I don’t know in the long term, we will see who is right, today, tomorrow and the day after, I’m quite sure the problem is much more infringement of patents, for instance in China, than ignoring them. And that is what we have in our legislation.” (at 1.17.00)

But why would China sign ACTA? They can just aim to build up a bigger patent portfolio than the EU. And then the excessive measures will hurt the EU, without possibility for reform. The Commission seems a bad chess player. With ACTA, the Commission follows a short term policy, disregarding future effects. We maintain this is a strategical mistake.

Mr Velasco Martins also said China could have entered the negotiations at the preparatory stage: “ACTA was open to countries willing to join and China was not willing to join.” (at 1.24.00)

Mr Velasco Martins provided wrong information when he said that three strikes Internet disconnection was “never proposed or introduced in ACTA by any of the parties (…) nobody proposed a three strikes mechanism in ACTA.” (at 13 minutes) He forgot the leaked document with the footnote mentioning three strikes.

ACTA was negotiated as a mixed agreement. Now the negotiations are concluded, the competence will be settled soon. It may have to be ratified as a mixed agreement, meaning the member states have to ratify as well, giving the national parliaments power over ACTA.

Sound recording

See also La Quadrature du Net , TACD and Tweets about the meeting.