Will ACTA be binding on the US, EU, France, Romania, the Netherlands and Singapore? Confusion over whether the Anti-Counterfeiting Trade Agreement (ACTA) is binding is mounting. On 1 December 2010, Dutch Trade Minister Verhagen said in a parliamentary commission meeting: “It has never come up to implement ACTA in the Netherlands. It so happens that ACTA is not superior to European or national law.”
This is a remarkable statement. It is in direct conflict with an EU Commission’s answer to a European Parliament question. It is also in conflict with the Vienna Convention on the Law of Treaties, which was ratified by the Netherlands. The minister misinformed parliament.
A group of prominent European academics state that ACTA will directly or indirectly require additional action on the EU level. ACTA goes beyond current EU law. ACTA is legislation by the back door.
Minister Verhagen’s statement resembles United States Trade Representative’s statements that ACTA will not be binding upon the US. Whether that is true is uncertain. The US did not ratify the Vienna Convention on the Law of Treaties. Will this provide the US with an escape? This would give the US a competitive advantage: more policy space. (See also TACD.) Four members of the European Parliament asked a follow-up question.
The European Union did not ratify the Vienna Convention either. If ACTA does not bind the US, will it bind the EU? Most European countries did ratify the Vienna Convention, yet France and Romania didn’t.
Singapore didn’t ratify the Convention either.
A joint submission by 30 legal and international trade scholars warned that the Obama Administration’s plan to implement ACTA without Congressional consent as a “sole executive agreement” is unconstitutional. Could that be the US defense? Sorry, we didn’t have the competence to bind the US?
The EU should not give the US a competitive advantage.
(Dutch text Verhagen: “Er is echter nooit sprake van geweest om ACTA in Nederland te incorporeren. ACTA gaat namelijk niet boven Europese of nationale wetgeving.”)