August 4, 2011

Trade Committee not interested in fundamental rights

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The European Parliament Committee on International Trade requested the Parliament’s Legal Service an opinion on ACTA (pdf). Compared with the request US Senator Wyden made, and seen the European academics Opinion on ACTA, the questions are very narrow. The questions seem carefully designed to minimize damage to ACTA.

Senator Wyden has asked in an October 8, 2010 letter that the American Law Division of the Congressional Research Service of the Library of Congress undertake and provide to Congress: “a written, independent determination of whether the commitments put forward in the agreement diverge from our domestic laws or would impeded legislative efforts that are currently underway. I ask the Division pay particular attention to the provisions relating to injunctions, damages, and intermediary liability.” It is an open question and includes whether ACTA would impeded legislative efforts that are currently underway. This is important for finding a solution for access to orphaned copyrighted works and patent reform.

A group of prominent European academics published an opinion on ACTA. They conclude: “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.” The FFII also published a list with deviations from current EU law (pdf).

A European Parliament commissioned study agrees on some point with the academics. Further scrutiny is needed to see whether the academics overstated, or the study understated the problems. The FFII suggested the Trade Committee would ask broad questions. But in stead of asking open questions, the Trade Committee asked very narrow questions: “- The conformity of ACTA with the EU Acquis with regard to (a) border measures, (b) the criteria for damages in ACTA in relation to the criterion of “appropriateness of the damage to the actual prejudice suffered” as envisaged in Directive 2004/48/EC. and (c) criminal measures.”

Seen all the questions still open, the request is too narrow. Concerns on fundamental rights and compliance with the Treaties are missing. Regarding the criminal measures, the question also does not refer to the European Parliament position on the criminal measures directive proposal.

The Trade Committee also asked: “Is the Commission obliged to publicly disclose preparatory works and previous versions of ACTA, according to the Vienna Convention on Law of Treaties?”

But the point is not whether the Vienna Convention obliges the Commission to disclose the texts. The point is that without publication, the public and Parliament are not fully informed about ACTA. ACTA still is a dark horse. The real question is: is this compatible with the EU Treaties?

Another question: “Is the European Parliament obliged to disclose documents that originate from another EU institution?” It would be more appropriate to investigate whether the Parliament can publish the ACTA documents. ACTA is legislation, it has to be open. The Trade Committee is biased towards secrecy.

The request (OCR by FFII):

Committee on International Trade
The Chairman
AM/ZU
d(2011) 35697

312222 18.07.2011
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Mr. Christian Pennera
Jurisconsult
Legal Service of the European Parliament

Subject: “Anti-Counterfeiting Trade Agreement” (ACTA)

Dear Mr Pennera,
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I would like to request your Service’s opinion on the issue of the Anti-Counterfeiting Trade Agreement (ACTA). On 24 June 2011, the Commission forwarded its proposal to the Council (COM(2011)380 – 2011/0167(NLE), and the Council has just referred it to Parliament under the consent procedure.
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As you are certainly aware, the EU and a number of other WTO members began working on ACTA in 2007. The negotiating parties are Australia, Canada. the EU, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, Switzerland and the USA. ACTA will provide a WTO-plus legal framework (in addition to the TRIPS) against counterfeiting and piracy and harmonised rules on civil and criminal enforcement and on customs procedures, as well as improved cooperation between authorities and stakeholders.

In this context, the Committee on International Trade would appreciate to know your opinion on the following matters:

– The legal base or bases for adopting the ACTA. The Commission’s proposal is based on Article 207 (4). 1st subparagraph. in conjunction with Article 218(6)(a)(v) TFEU. I wonder whether the Legal Service agrees with this choice.

– The conformity of ACTA with the EU Acquis with regard to (a) border measures, (b) the criteria for damages in ACTA in relation to the criterion of “appropriateness of the damage to the actual prejudice suffered” as envisaged in Directive 2004/48/EC. and (c) criminal measures.

– The conformity of ACTA with the existing international obligations of the EU and its member states: How does the Legal Service evaluate the relationship between ACTA and the TRIPS Agreement?

– Finally, Parliament and myself have received various requests from NGOs and Interest Groups for access to ACTA preparatory works as well as requests that all relevant preparatory documents (drafts distributed by the European Commission and associated briefing notes from the Commission) received by the Parliament should be published and/or communicated directly to Stakeholders as soon as possible: Is the Commission obliged to publicly disclose preparatory works and previous versions of ACTA, according to the Vienna Convention on Law of Treaties? Is the European Parliament obliged to disclose documents that originate from another EU institution?

I thank you in advance for your cooperation.

Yours sincerely

Vital Moreira