November 20, 2011

Confirmatory application for legal service’s opinion on ACTA

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Today I refiled a confirmatory application for the European Parliament legal service’s opinion on ACTA.

See also: http://acta.ffii.org/?p=904

Dear Mr Welle,

On 17 November, I filed a confirmatory application for A12541 – legal service’s opinion on ACTA. Apparently our letters crossed. Now that I received your letter, I will update my confirmatory application below.

In your letter, you give three reasons for not providing access to major parts of the legal service’s opinion. I will address your arguments and provide an overriding public interest in disclosure of this document.

= First reason

“Firstly, pursuant to Article 4(1)(a) third indent of Regulation (EC) No. 1049/2001, ‘The Institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards international relations’. The legal opinion under consideration has been drawn up as advice for a committee of the European Parliament in the context of the EU ratification process of the Anti-Counterfeiting Trade Agreement (ACTA).

Important trading partners of the EU, such as the United States, Canada, Japan, Korea and Switzerland are contracting parties to the ACTA agreement. Disclosure of the parts of the legal opinion under consideration dealing with questions 1, 2 and 3 would seriously interfere with the complex ratification procedures of the ACTA agreement and the EU’s relations with the other contracting parties, as it might prejudice the ratification procedures by these countries.”

If this argument would be true, it would be true for all documents on ACTA, including the already published INTA study, the upcoming draft committee opinions, (minutes of) committee meetings, committee opinions, draft INTA report, INTA report, draft resolution on ACTA, (minutes of) plenary meetings and even the resolution on ACTA, once adopted by plenary. And let’s not forget any public statement by Commission, Council, and Members of Parliament.

The Parliament suggests to suspend democracy? Basically, this argument is unrelated to the legal service’s opinion. It is an argument against open societies, frank and free discussions. So this argument fails against providing access to the legal service’s opinion – since, if taken seriously, it would kill democracy.

There are already many academic opinions on ACTA. A sound legal service’s opinion can hardly depart from these. The academic opinions did not prejudice the ratification processes, they made them richer. Publication of the legal service’s opinion will do this too.

The negotiations are over. there is no confidentiality agreement for the ratification process. The ACTA text is published. Everyone can now analyse it. Finally, discussions can be free and informed.

The biggest proponent of secrecy, the United States government, will not ask Congress to ratify ACTA. It is impossible to prejudice the ratification process in the US – there isn’t any. There may be more partners without a ratification process.

The countries with a ratification process are self confident democracies, like Canada. Or they have a ruler that is self confident.

The Congressional Research Service of the Library of Congress published most of its report on ACTA. This does not prejudice the ratification processes in other countries.

The Mexican parliament already decided not to ratify ACTA, documents are available. This does not prejudice the ratification processes in other countries.

The ratification process isn’t complex. Committees will formulate opinions and plenary will vote. For a parliament, this is everyday business.

The INTA committee questions are specific and regard the EU context, they will probably not influence, and most certainly not prejudice, other ratification processes.

There are other ratification processes in parallel. They may influence each other. More information only makes the ratification process richer, better informed. On a daily basis, parliaments cope with a world full of information. Information does not prejudice decision making processes. Does the Parliament suggest to abolish the freedom of the press?

The Parliament uses the formulation “might prejudice”, a weak formulation. The Parliament does in no way make this weak statement credible.

The Parliament fails to make the point that disclosure would “seriously interfere”.

The Parliament often adopts resolutions dealing with the rest of the world. The Parliament is a proud parliament, expressing strong opinions. For instance, the Parliament recently adopted a resolution on the United States Stop Online Piracy Act (SOPA). This was a direct and official interference with an other country’s law making process. Which is much stronger than the publication of a legal service’s opinion on specific EU legal matters.

The Parliament isn’t shy, is not afraid its actions undermine the protection of the public interest as regards international relations. Why then try this argument on European civilians? This is clearly a case of selective over anxiety.

The Parliament easily takes on the world, but is afraid of its own citizens.

This first reason is totally overstretched.

= Second reason

“Secondly, under Article 4(2) second indent of Regulation (EC) No.1049/2001, ‘The Institutions shall refuse access to a document where disclosure would undermine the protection of legal advice’. The process of legal advice provided by the Legal Service to political bodies of the European Parliament in the context of the ongoing ratification process of ACTA has not been completed.”

While the process of legal advice provided by the Legal Service has not been completed, this document is ready. The European Court of Justice Turco case, which regarded a legal opinion, can be fully applied.

Turco case 45: “In that respect, it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble to Regulation No 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.”

Waiting with the release of the document only hampers citizens in participating “more closely in the decision-making process”. While publication would result in “the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system”. It is amazing the Parliament isn’t interested in this!

ACTA will be binding upon the Union. Transparency is even more important with international agreements than in the case of EU legislation, since EU legislation can be changed afterwards, while the Union can not easily withdraw from international agreements.

Turco case 46: “Those considerations are clearly of particular relevance where the Council is acting in its legislative capacity, as is apparent from recital 6 of the preamble to Regulation No 1049/2001, according to which wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.”

European citizens want to effectively exercise their democratic rights.

I will provide additional overriding public interest in disclosure below.

= Third reason

“Thirdly, according to the first paragraph of Article 4(3) of Regulation (EC) No. 1049/20001, ‘Access to a document, drawn up by an institution for internal use which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’

So far, the Parliament has not yet taken its final decision on the matter. The procedure for the conclusion of ACTA is still at its very early stage as explained in my reply of 29 September concerning your request A(2011)9722. Following the Commissions proposals of 24/6/2011 [2], INTA Committee requested this legal opinion from the Legal Service but has not yet discussed this matter.”

The Parliament makes the point that the decision has not been taken by the institution. But the Parliament does not substantiate in any way that disclosure would seriously undermine the institution’s decision-making process.

It is the other way around. Disclosure will help the institution’s decision-making process. There will be a deeper, better informed debate in Europe, the Members of Parliament will have better input and feedback. Publication of a legal opinion is of general interest and helps the decision-making process.

Disclosure would strengthen democracy by allowing citizens to scrutinize the document. The possibility for citizens to find out the considerations underpinning the debate is a precondition for the effective exercise of their democratic rights. European citizens want to effectively exercise their democratic rights – and this will help the decision-making process.

I will provide additional overriding public interest in disclosure below.

= Overriding public interest in disclosure

Parliament will have to balance the interest to be protected by non-disclosure and public interest in disclosure. While doing this, the Parliament will have to take into account art 103 of its Rules of Procedure: “1. Parliament shall ensure that its activities are conducted with the _utmost transparency_ , in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union.” (emphasis added)

1. ACTA is a matter of life and death

ACTA’s predecessor, the TRIPS agreement, killed millions of people. The world faces major challenges: access to medicine, diffusion of green technology needed to fight climate change, and a balanced Internet governance. While flexibility is essential to solve these major issues, ACTA codifies heightened measures.

“Remember, governance is a big word that includes human rights, freedom of speech, economic transactions on a worldwide basis — it touches everything. It’s everywhere, and that’s why Internet governance is topic A in many corners.” Vincent Cerf, one of the godfathers of the Internet [2]

500 Million Europeans, and billions abroad, are entitled to full transparency.

2. World wide discourse on ACTA

Prior to the legal service’s opinion, civil society and prominent academics analysed ACTA and found that ACTA goes beyond the current EU legislation and violates fundamental rights. [3]

Opinion of European Academics on ACTA: “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.” They 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.”

Health groups pointed out ACTA harms access to medicine. See for instance: Public Citizen on ACTA and access to medicine and Oxfam Statement regarding ACTA and Public Health.

The European Commission’s services comments to the European Academics’ Opinion on ACTA is very weak. In one case, the Commission actually even states it insisted ACTA would go further than current EU legislation. See: FFII: The EU Commission lacks basic reading skills.

A study commissioned by the European Parliament INTA committee evaluated the prior discussion, and concluded that ACTA indeed goes beyond the current EU legislation.

European Parliament INTA study on ACTA: “for those European Parliamentarians for whom conformity with the EU Acquis is sine qua non for granting consent, this study cannot recommend that they provide such consent to ACTA as it now stands.” See also FFII comments on the INTA study.

After that, Douwe Korff and Ian Brown, fundamental rights experts, confirmed ACTA violates a list of fundamental rights.

An academic study by Sean Flynn and Bijan Madhani confirmed ACTA harms access to medicine.

Let’s take one example. In EU law, damages are based on actual loss suffered, including lost profits. ACTA goes beyond actual loss. Suggested retail price damages are higher than actual prejudice. Amount multiplied by suggested retail price may lead to enormous damages, this has a chilling effect on mass digitization projects. ACTA’s damages are also a threat to consumers, for instance, if someone copies a hard disk. A 2 terabyte hard disk can contain 540.000 songs. Copyright holders can claim a euro per song damages multiplied by 540.000 = 540.000 euro. While the actual loss may be zero.

Civil society, prominent academics and the INTA study pointed this out. The INTA study recommends: “Seeking clarification, before ratification of ACTA, from the European Court of Justice that the criteria envisaged by the ACTA for the quantification of the compensatory damages would not amount to a violation of the criterion of “appropriateness of the damage to the actual prejudice suffered” envisaged in the Enforcement of IPRs Directive;”

Korff and Brown, fundamental rights experts, conclude: “In our opinion, here too ACTA is deficient: without express clarification to the effect that damages awarded to right holders must be a reasonable reflection of actual loss, equitably assessed by a court (rather than an exaggerated assessment based on an unchallengeable but rigged formula), the Agreement violates both the right to property and the right to a fair (civil) trial of the defendants.”

ACTA’s damages beyond actual loss upset millennia of legal tradition. The decision to do this, is a grave decision. It should not be taken lightly, nor should the importance and the detrimental effects be obfuscated. Even, since the decision violates fundamental human rights, it can not be taken.

ACTA also includes criminal measures. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders; whistle blowers and weblog authors revealing documents in the public interest and remixers and others sharing a file if there is an advantage. This advantage may be indirect, a concept the FFII believes to be too unclear to incorporate in criminal law.

Regarding ACTA’s criminal measures, Korff and Brown conclude: “In our opinion, ACTA, by not including a de minimis exception to its compulsory and draconian enforcement regime, fails to ensure adequate protection of the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, and the right to the peaceful enjoyment of one’s possessions, and thus violates those rights.”

After all the discussion in public on ACTA, in particular after the release of the final text, it is hard, or even impossible, to conclude that ACTA does not go beyond the current EU legislation and does not violate fundamental rights. To convincingly state that ACTA stays in line with current EU legislation and fundamental rights, one has to address the prior findings, eliminate the doubts, and do this in public.

3. The legal service’s opinion

According to a European Digital Rights initiative publication, in response to the question about whether ACTA is in line with existing EU legal provisions, the legal service explains that the text is open to interpretation but, on the face of it, the agreement appears to be in line with current EU law. [4]

This is rather amazing. The legal service goes against the academic communis opinio, it fails to notice that ACTA’s damages beyond actual loss upset millennia of legal tradition and fails to notice violations of fundamental human rights.

Reports on the opinion indicate that the legal service did not address the prior findings, nor did it eliminate the doubts. The opinion certainly isn’t public. The legal service shows contempt for the world wide discourse on ACTA. It fears scrutiny.

4. The Parliament’s services are not independent enough

On 25 April 2007 the European Parliament rejected criminalisation of parallel importation when it voted on the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (COD 2005/127).

Parallel importation is not counterfeiting, a genuine product is bought and sold. Parallel importation is also important for access to medicine, a matter of life and death.

In the consolidated text the amendment excluding parallel importation from criminalisation, was missing. The amendment was deliberately left out by the rapporteur, MEP Mr Zingaretti, who was responsible for the dossier. Only after Mr Zingaretti left Parliament, the President of the European Parliament decided to restore the amendment that excludes criminalisation of parallel importation. Prior to that, the Parliament had not answered any of the civil society calls to restore democracy. [5]

The FFII discovered the missing amendment. After discovery, the FFII alerted the Parliament’s services. At some point, the services agreed this wasn’t correct. But they couldn’t do anything since the rapporteur had taken the decision.

Making a consolidated text is a technical job. But, apparently, in the European Parliament, even this technical job is politicized.

The Parliament’s register and INTA secretariat denied the existence of the INTA coordinators’ minutes four times (see below). The INTA secretariat provided the register with wrong information. The secretariats identify themselves too much with the political process.

The Parliament’s services are not independent enough from the Parliament’s political processes. This compromises the Parliament’s integrity.

5. Publication of legal service’s opinions will, over time, lead to better opinions

The legal service is the Parliament’s house lawyer. Its task is to defend the Parliament’s positions in court. The legal service is not an impartial organisation. It is not an independent court. Before the legal service’s opinion was ready, Members of Parliament already expressed their expectation that the opinion would state that ACTA is in line with the current EU legislation – seen the Academics’ Opinion and INTA’s own study, a remarkable expectation. These members possibly see the legal service as an oracle – able to provide a text in which everyone sees his opinion confirmed. The formulation “open to interpretation but, on the face of it…” suggests an oracle approach.

These Members, and the legal service, did not avoid the appearance that the legal service delivered what was asked for. Only publication of the opinion may restore the Parliament’s credibility.

Publication of legal service’s opinions will, over time, lead to better opinions.

6. Europeans expect transparency

“3. Calls on the Commission and the Council to grant public and parliamentary access to ACTA negotiation texts and summaries, in accordance with the Treaty and with Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents;”

“4. Calls on the Commission and the Council to engage proactively with ACTA negotiation partners to rule out any further negotiations which are confidential as a matter of course”

“6. Deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation;”

European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations, P7_TA(2010)0058 (2010) [6]

7. A cultus of secrecy

In violation of the Treaties, the INTA committee and legal service cultivate secrecy.

– on 13 July 2010, the coordinators of the INTA committee decided to commission an external study on the impact of ACTA on access to medicines,

– on 25 October 2010, the coordinators decided to convert the study on “Impact of ACTA on Access to medicines (AVC)” into a fully fledged ACTA Impact Assessment,

– on 21 June 2011, the coordinators of the INTA committee decided to ask the Parliament’s legal service an opinion on ACTA. [7]

– all these decisions were illegal for two reasons. First, the ACTA text had already been published, the discussions should have taken place in public. Second, coordinators can prepare decisions, but can not take them,

– the Parliament’s register and INTA secretariat denied the existence of the INTA coordinators’ minutes four times, [8]

– the legal service keeps its opinion confidential,

– the Committee on International Trade has on its agenda for 23 November a presentation of the legal opinion on ACTA by the EP Legal Service. This presentation will take place in camera.

The secrecy has to stop now. The utmost transparency regime necessitates that the Parliament publishes the legal service’s opinion prior to the INTA committee meeting.

Yours sincerely,

Ante Wessels

[1] http://action.ffii.org/acta/Analysis#Attachment:_The_Turco_case

[2] http://venturebeat.com/2011/11/14/vint-cerf/

[3] FFII ACTA analysis:
http://action.ffii.org/acta/Analysis

Opinion of European Academics on ACTA:
http://www.iri.uni-hannover.de/acta-1668.html

European Commission’s services comments to the European Academics’ Opinion on ACTA.
http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147853.pdf

FFII: The EU Commission lacks basic reading skills
http://acta.ffii.org/wordpress/?p=598

European Parliament INTA study on ACTA:
http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf
http://acta.ffii.org/?p=681

Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, 2011:
http://rfc.act-on-acta.eu/fundamental-rights

Oxfam Statement regarding ACTA and Public Health:
http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

Public Citizen on ACTA and access to medicine:
http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-Affairs-on-the-ACTA.pdf

Sean Flynn and Bijan Madhani, ACTA and Access to Medicines, 2011:
http://rfc.act-on-acta.eu/access-to-medicines

Internet Society:
http://www.isoc.org/internet/issues/acta.shtml

[4] European Digital Rights initiative:
http://www.edri.org/edrigram/number9.20/acta-ep-legal-service-opinion

[5] http://acta.ffii.org/?p=767

[6] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0058+0+DOC+XML+V0//EN&language=EN.

[7] INTA coordinators’ minutes 21 June 2011 http://people.ffii.org/~ante/acta/INTA-minutes/Coordinators%27s%20minutes%202011%200621.pdf

[8] European Parliament releases “nonexistent” coordinators’ minutes on ACTA
http://acta.ffii.org/?p=849
http://people.ffii.org/~ante/acta/INTA-minutes/