January 25, 2011

Commission’s lost answer to Schaake question arrived

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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.” [1]).

Answer given by Mr De Gucht
on behalf of the Commission

1. The Commission does not share the Honourable Member’s views as regards lack of transparency in the conduction of the ACTA negotiations. Since the launch of negotiations (June 2008), the Commission has continuously informed the public about the objectives and general thrust of the negotiations, including the summarising of reports after every negotiation round. At the request of the Commission, the negotiating text was released for the first time in April 2010. The latest version was published on 6 October 2010.

Furthermore, the Commission organised three stakeholder conferences on ACTA which were open to all – citizens, industry, NGOs and press.

Additionally, the Commission kept the Parliament regularly informed, both at the Plenary (which the Member of the Commission responsible for Trade has addressed 3 times in the last 8 months) and through the INTA (International Trade) Committee. The Commission has provided dedicated briefings to interested Members of the Parliament on all aspects of the negotiations, after each negotiating round since March 2010.

Regarding the first question about whether ACTA qualifies as a trade agreement, the issue that needs to be settled is under which competences the Union can potentially ratify the Agreement. It is clear that the EU’s competence under the common commercial policy (Article 207 TFEU), which includes “the commercial aspects of intellectual property”, provides an EU competence for the matters regulated in ACTA. In this sense, therefore, ACTA can be considered a “trade” agreement.

ACTA does not require the introduction of any modification of EU legislation and will not require any legislative implementation in Europe. At the same time, it builds upon the main international standards, which are set by the Agreement on Trade- Related Aspects of Intellectual Property Rights, which is one of the World Trade Organisation’s treaties. For these main reasons, it was negotiated under a general trade heading, but with the full participation of all competent Commission services.

The penal enforcement provisions were negotiated by the rotating Presidency on behalf of Member States.

2. As regards transparency, trade agreements, based on Article 207 TFEU, are subject to the same rules on transparency as applicable to other negotiations, but Article 207 requires that the Parliament be kept fully informed. International negotiations are always subject to a certain degre of confidentiality because the parties need a minimum level of confidentiality to feel comfortable enough to make concessions or to try different options.

3. As explained in the response to the first question, ACTA is a trade agreement. The fact that it falls under Article 207 means that the standard rules on ratification apply. The Commission will need to formally decide whether to propose the agreement for ratification, the Council will need to decide whether to sign and conclude the agreement, and the Parliament will be required to give its consent. To the extent that the agreement is mixed, i.e. it concerns both EU and Member States’ competences, it will require ratification by the Member States.

4. The document “Maintaining Confidentiality of Documents” reflects the content of an informal agreement among the ACTA Parties expressing the understanding that intergovernmental negotiations dealing with issues that have an economic impact, may not necessarily take place in public and that negotiators are bound by a certain level of discretion.

5. Since this issue is currently the object of a court case lodged by an Member of the European Parliament against the Commission, the Commission does not wish to address the question in more detail at this stage.

However, the Commission would like to refer the Honorable Member to a recent Decision by the European Ombudsman1 concluding that the refusal of the Council to publicly disclose certain documents related to the ACTA negotiations was justified, as making them public would have a negative effect on the prevailing climate of confidence in the negotiations, and that open and constructive co-operation might be hampered.

Marietje Schaake’s question was:

Parliamentary questions
28 October 2010
Question for written answer
to the Commission
Rule 117
Marietje Schaake (ALDE)

Subject: ACTA — a law enforcement treaty?

There is public concern worldwide about the lack of formal transparency in the ACTA negotiation process, such as illustrated in the article ‘ACTA Guide, Part Three: Transparency and ACTA Secrecy’, by Professor Michael Geist (see http://www.michaelgeist.ca/content/view/4737/125/). Other articles and open letters can be found at the following shortened addresses: http://bit.ly/4EdMKK, http://bit.ly/4CJv2n, http://bit.ly/bdUGlx and http://bit.ly/aQDUO2.

Parliament has repeatedly asked the Commission for transparency in the ACTA negotiations, but to no avail.

1. Does the Commission accept that an agreement which contains specific and extensive civil and criminal law enforcement measures does not qualify as a trade agreement, but as a law enforcement treaty? If not, why not?

2. Does it agree that the classification of ACTA as a trade agreement has enabled the parties to seek non-transparent negotiations? If not, why not?

3. Is it willing to contest the classification of ACTA as a trade agreement, on the grounds that it in fact seeks to regulate illegal and criminal activities? If not, why not?

4. Can it explain the legal status of the document ‘Maintaining Confidentiality of Documents’, which can be found at http://bit.ly/b23KAc? Does the Commission’s negotiating mandate authorise it to agree to the conditions set out in this document? Is it bound by the language used in this document, for example the opening sentence: ‘First, we agree that documents relating to the proposed Anti-Counterfeiting Trade Agreement (ACTA) will be held in confidence’? Did it sign this document?

5. Does it agree that by complying with other negotiating parties’ demands for non-transparency, it has compromised the rules and regulations on access to information and transparency in the European Union, as laid down in the Lisbon Treaty and in Regulation (EC) No 1049/2001(1)? If not, why not?

(1) OJ L 145, 31.5.2001, p. 43.

[1] Contradiction in a nutshell

Karel de Gucht answer (21.1.2011) ACTA

will not require any legislative implementation in Europe.

Karel De Gucht answered (P-9179/10EN 15 Dec 2010):

On one area covered by ACTA on which there is no EU acquis, i.e. penal enforcement, it is possible that some Member States may need to adapt domestic legislation to comply with commitments they have undertaken in the negotiation of the ACTA section on penal enforcement.