October 21, 2010

De Gucht 2nd Plenary intervention on ACTA

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Karel De Gucht, Member of the Commission (20 Oct 2010)

Mr President, first of all there have been several interventions claiming that the implementation of ACTA would lead to limiting civil liberties, and several pointed out the control of laptops, or of air passengers at borders for example.

The joint declaration of 16 April issued by all the ACTA parties is quite clear. There is no proposal to force ACTA participants to require border authorities to search travellers’ baggage or their personal electronic devices for infringing materials.

ACTA is about tackling large-scale illegal activity and pursuing criminal organisations. It is not about limiting civil liberties or harassing consumers. ACTA will be in line with the current EU regime for enforcement of IPRs, which fully respect fundamental rights and freedoms and civil liberties, such as the protection of personal data.

One example is the de minimis clause in the 2003 EU customs regulation that exempts travellers from checks if the infringing goods are not part of large-scale traffic.

EU customs, frequently confronted with drug trafficking, weapons or people, have neither the time nor the legal basis to look for a couple of pirated songs on an iPod or laptop computer, and we have no intention of changing this.

We will not change this, and we will ensure that ACTA parties can continue to apply such an exemption. However, we cannot impose the de minimis exemption as an absolute obligation, because some Member States acting under national rules have kept the authority to carry out certain controls of passengers.

Reference has been made again to the three-strike law or the HADOPI law in France which makes this possible. However, this is a national rule and the European Union does not have the authority to make a national state change this.

Several have also been asking for an impact assessment on fundamental rights, an impact study on privacy and an impact study on the acquis communautaire.

I have made several statements in this plenary that there has been no infringement whatsoever of fundamental rights or the acquis communautaire in any way, and I must say that in the three debates that we have already had in this Plenary none of you has given an example of problems related to fundamental liberties. Nobody has pointed to an infringement of the acquis communautaire. Nobody has been able to give an example. If you give us examples, we will look into them.

As for negotiating behind closed doors, Parliament has been asking for more transparency on the ACTA negotiations. It is the Commission that has made sure that this happens; that you have the text before you that was negotiated in Tokyo and that you got it a couple of days after it was finalised. You have it also with the reserves that still exist; three on the part of the European Union, three on the part of the United States. You have the result of the negotiations. How can you say that this has happened behind closed doors?

The question has been put to the Ombudsman. Maybe you do not trust me. I am the Commission. Maybe you do not trust the Council. Maybe you do not trust your governments. I have detected from a lot of speeches here that your trust in national governments is not very deep, but I think you at least trust the Ombudsman. The Ombudsman has said very clearly that we can keep documents confidential, and what we have been doing is making a large additional step in the direction of transparency.

You would expect that when you do that, you would be applauded. At least there would be some consideration for the fact, but some of you simply continue to say that we negotiate behind closed doors and that there is no transparency. So what is the use in making an effort to have more transparency if afterwards you still continue to say that there is no transparency? Maybe I would be better investing my time in something else.

As regards the possibility of the European Commission agreeing on a final text: in the Lisbon Treaty, there are in fact very clear rules on how international agreements are negotiated, by whom and how they are concluded and ratified, including the important role of the European Parliament.

There are also clear rules in the framework agreement as to how Parliament must be informed and heard during the negotiating process. I think we have respected these rules scrupulously. It is the Commission’s prerogative, as a negotiator, to determine the point at which negotiations are technically finalised and at which the agreement can be initialled. The agreement is not yet initialled and you have the possibility tonight to make your remarks before we even do the initialling and before we even decide to initial the agreement as such. We have not yet made a decision in the Commission on what we are actually going to do, because we still have a couple of reserves that we want to settle with the United States before making up our minds.

The initialling of the agreement is part of the Commission’s prerogatives and it does not definitely bind the Union. The agreement will become definitive once the European Parliament has given its consent.

So let us respect the treaty and let us respect the framework agreements. In the meantime we will continue to inform and engage with you as stipulated in the framework agreement.

By the way, according to the Treaty, it is the Council which authorises the signature of the agreements, but Parliament always has the last word. It has to ratify this agreement and if consent is refused, there is simply no agreement at all.

So be a little bit patient. There is no initialling yet. Once there is initialling, you have the translation, you have the check by the lawyer-linguists, and then it comes to the Council for signature and to Parliament for ratification. So no decision whatsoever has been taken at this moment in time, and you have another possibility tonight to make known all the comments that you have on your mind.

Some have also been asking how the EU would benefit by entering into such an agreement if it will go no further than its current laws and if, furthermore, other countries like the US also claim that it will not change domestic law.

This is not about substantive law. This agreement is about the enforcement of existing law, and that is why I have repeatedly stipulated that we are not going to change the acquis communautaire. The acquis communautaire is about substantive law and we are not changing that. An international treaty that would adopt standards similar to those of the EU, but also to those already in place in countries like the US or Japan, would still be a most valuable contribution to the current prevailing international standard as defined by the WTO TRIPS Agreement.

Our goal is to promote ACTA standards to key emerging partners, namely through our future trade agreements but also in multilateral venues. That being said, several ACTA parties have taken the momentum created by the ACTA negotiations to revise their domestic legislation along the agreed lines.

As far as I am aware, for instance, both Japan and Canada are in the process of reviewing their internet enforcement regimes. Moreover, it is often overlooked that ACTA is not only about improved legal standards. It is also about cooperation between enforcement authorities, the adoption of best practices or the better coordination of technical assistance.

Although the EU has had very successful cooperation with the US in these areas for the last four to five years, we believe that ACTA can also improve those important aspects of the fight against IPR infringements.

We consider that the US enforcement system is generally effective and efficient in the protection of certain intellectual property rights. The Commission has stressed that ACTA is not a disguised means to circumvent their domestic legislative process and to devise their current laws and so has Parliament. It is understandable that US officials stress the same line.

Let me add that the principle of cooperation between rightholders is already in Article 15 of the e-Commerce Directive since 2003, so this is not a new concept. It is in the e-Commerce Directive and we are simply referring to that. We are referring to the existing EU law.

Let me further say that what is often overlooked in the debate on ACTA are the number of jobs of EU citizens that relate to intellectual property rights and we often discuss jobs on all sides of the House.

Millions of jobs in Europe depend on respect for intellectual property rights. Counterfeiting is a serious attack on European industry and on the European economy and on European innovation, because we are an innovation-based economy.

What we are really talking about is jobs. And I must say that I am a little bit surprised that in the three discussions that we have now had in this plenary, this has never in fact been mentioned. This reference to jobs has never been made. The references that are made are to fundamental rights and I am very sensitive to that, but without any confirmative example.

The reference is made to controls at the borders where it is clear that ACTA adds nothing to what already exists. There is a reference to privacy and I see no reason why privacy would be under attack. There are references to a kind of nebulous liberty and liberties that you think are under attack, but you do not give any examples of that. On the other hand, what is very clear and what is documented in all kinds of impact studies that have already been done by the way by the Commission, on all kinds of items, is that a lot of our jobs are linked to intellectual property rights and that is one of the reasons we attach such importance to that topic. I am a little bit surprised that this is very rarely mentioned by Parliament.

Observations

  1. Border control: A known distraction, the issue of individual border searches plays a minor role in the criticism of ACTA. Instead of answering the questions of MEPs De Gucht focusses on border searches. Contrary to what he claims MEPs didn’t express particular interest in the issue.
  2. Does not require: The statement is deceptive. While ACTA does not require the contracting parties to enact these mesaures it leaves them the opportunity to opt-out and recognises the right of other parties to carry out such border searches. Read the agreed text. There are different options how to word an exclusion of border searches and the contracting parties chose the worst variant: Parties may exclude from the application of this Section small quantities of goods of a non-commercial nature contained in travelers’ personal luggage.”
  3. The provisions far go beyond the current EU regime. In the case of penal sanctions there is no existing EU acquis and the Commission recently pulled her proposal for an Criminal IPR Enforcement directive due to lack of consensus from EU member states.
  4. As indicated above there are other, more common ways to word an exclusion e.g. by not making such cases subject to the agreement.
  5. Of course that is not true. The most obvious violation of the acquis is the inclusion of penal sanctions.
  6. De Gucht disputes the obvious, that despite at least four requests from the plenary the Commission was unwilling to adhere to Art 15 TFUE openness requirements, and it did hide between an confidentiality agreement with third nations (for which no parliament approval was sought) and the “international relations” exemption of Art 4 1049/2001/EC. The FFII highlighted in a press release that the Commission threatened other nations to leave the negotiations for inclusion of geographical indications but was unwilling to put the same weight behind the repeated requests of Parliament for full disclosure.
  7. The ombudsman answered to a complaint by the FFII.
  8. De Gucht defends his lack of transparency with arrogance.
  9. In other words, the final version of ACTA is no final text.
  10. With the Art 207 procedure (formerly 133 procedure) the Council formally authorizes negotiations but even the authorization (negotiation mandate) is prepared by the Commission. The Art 207 is a procedure for international trade agreements (tariffs&quota), not for international legislation.
  11. De Gucht misinforms Parliament about the Acquis. His statement “The acquis communautaire is about substantive law and we are not changing that” is blatantly false. The Acquis comprises adopted EU level substantive and enforcement laws.
  12. Improvement of “legal standards” is no objective of trade agreement. The formal objective underlying the WTO TRIPs precedent was not to improve international legal standards but reduce regulatory, non-tariff trade barriers.
  13. The Commissioner does not tell the truth. For instance there is no Acquis for penal sanctions. Such penal sanctions, for which the EU has formal competence, would be adopted according to the “ordinary legislative” process and through adoption then become part of the Acquis. The “ordinary legislative procedure” gives power to Parliament and Council, the Commission can just introduce a legislative proposal and guard compliance with the Treaties. The legal base would be Art 83(2). For details please refer to our analysis. ACTA circumvents the “ordinary legislative procedure” via Art 207. DG Trade captures legislative competences from parliament and council.
  14. The Commissioner refers to existing EU laws which differ from the ACTA negotiations results.
  15. It is not upon a Commissioner to criticize Parliament. The wording “nebulous libertydemonstrates the degree of arrogance and hypocrisy. The MEP Schaake just asked Commissioner de Gucht for an “impact assessment” on fundamental rights.