June 20, 2011

Legal questions about ACTA

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Sources say that the European Parliament’s Trade Committee (INTA) will tomorrow consider asking the Parliament’s Legal service to answer questions about ACTA (Anti-Counterfeiting Trade Agreement). Here are some questions the FFII would like to suggest. The questions may resolve uncertainties regarding ACTA.

1. Does ACTA deviate from the EU acquis?

In January 2011, European academics issued an “Opinion of European Academics on ACTA“. The academics invite the European institutions, in particular the European Parliament, and the national legislators and governments to withhold consent of ACTA, “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”.

In April 2011, the European Commission’s services put on-line comments to the European Academics’ Opinion on ACTA. The Commission denies that ACTA is incompatible with EU law. The Commission’s services’ comments met criticism (IP-Watch / FFII)

2. Does ACTA endanger fundamental rights?

The European academics noted serious concerns on fundamental rights. UN Special Rapporteur on freedom of expression Frank La Rue warned that fearful Governments are increasingly restricting the flow of information on the Internet.

3. Is the EU competent to ratify ACTA’s criminal measures?

The EU power to negotiate criminal measures in trade agreements is not unlimited. The criminal measures in trade agreements are limited by the same rules that limit the power to make internal EU legislation (Art 207.6 TFEU). Criminal IP measures have to be based on art 83.2 TFEU, the criminal measures have to be proven essential. This proof is missing.

4. Does ACTA comply with the UN International Covenant on Economic, Social and Cultural Rights and art 3.3 TEU?

The Media Piracy in Emerging Economies report observes that relative to local incomes in Brazil, Russia, or South Africa, the price of a CD, DVD, or copy of Microsoft Office is five to ten times higher than in the United States or Europe. Exclusionary pricing promotes piracy. As long as IP protected goods – whether they be medicines or media products – are priced in middle income countries as luxury goods affordable only to the rich, there will be a strong pull of the majority of consumers toward competitively produced products.

Some 90% of the people in emerging markets can only turn to illegal media copies to enjoy cultural media products. ACTA confronts these people with criminal and high civil measures. The UN International Covenant on Economic, Social and Cultural Rights recognizes the right of everyone to take part in cultural life; and to enjoy the benefits of scientific progress and its applications (art 15.1 (a) and (b)).

Art 3.3 TEU: [The Union] “shall combat social exclusion and discrimination, and shall promote social justice and protection (…)” (second paragraph)

5. Was the agreement to keep ACTA negotiations confidential in violation with the Treaties?

Art 1 TEU: “This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.”

Art 15.1 TFEU: “In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible”

The Commission agreed on secrecy while ACTA contains norm setting, even beyond the acquis.

6. Does ACTA comply with art 3.3 TEU?

Art 3.3 TEU: “The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.” (first paragraph)

The Commission did not make an impact assessment on the effects ACTA may have on the diffusion of green technology, needed to fight climate change. The lack of impact assessments makes it impossible to establish whether ACTA complies with art 3.3 TEU.

7. Does ACTA comply with art 3.5 TEU?

Art 3.5 TEU: “In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.”

The issues noted above may indicate that ACTA does not comply with art 3.5 TEU. Furthermore, the Commission did not make an impact assessment on the effects ACTA may have on access to medicine.

8. Does ACTA comply with art 5 TEU, the principle of proportionality?

ACTA’s intrusive criminal measures and other articles may not be proportional.