February 2, 2012

Smoking gun on ACTA Criminal Sanctions

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We discovered a smoking gun on the criminal sanctions aspect of the Anti-Counterfeiting Trade Agreement (ACTA). A declassified document reveals that the Commission made proposals and fundamentally steered the negotiations on criminal sanctions in ACTA for which no corresponding EU harmonisation exists. There is no “Acquis” element on criminal enforcement of intellectual property rights, yet. Criminal sanctions in ACTA were formally negotiated by the Council “Presidency” on behalf of the EU member states. The findings reveal that the European Commission was much stronger involved than it previously admitted.

[National] Delegations proceeded to an exchange of views on the scope to be covered by the proposed criminal provisions. In this respect, the Commission representative indicated that the scope should be extended to include all Intellectual Property Rights enumerated in the Statement by the Commission concerning Article 2 of the Directive 2004/48 EC on the enforcement of Intellectual Property Rights, except for patent rights. ES, IT and PT were also of the view that the scope should be enlarged, in particular to include geographical indications and designs. However, the JHA Counsellors after being reminded of the content of the Directives for the negotiation of ACTA concluded that the scope of the criminal provisions’ chapter should remain unchanged as proposed in the joint Japan-USA proposal as of 12 September 2008.

Anti-Europarlament “forum shopping”

The European Commission made their own proposals for the criminal chapter of ACTA, the document shows. Criminal measures are not harmonised within the EU yet. With the ACTA member states and third nations harmonise them outside the EU. The European Commission conspired with EU member states to reach an agreement with third nations, disloyal to the “ordinary legislative procedure” within the EU framework. The “ordinary legislative procedure” puts the European Parliament representatives in the driving seat, even more so under the new Lisbon Treaty. With the ACTA process Members of Parliament only get the option to refuse their consent after negotiations are completed and the agreement is signed by member states. ACTA measures would prejudice their future EU legislation under the “ordinary legislative procedure”.

So far the Commission publicly said that it was not involved in the negotiations on the ACTA criminal sanctions and refused to answer all related questions.