February 15, 2012

Suggestion for a question to the Court

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Yesterday, the Dutch Parliament adopted a resolution asking the minister not to sign ACTA as long as it is not conclusively established that ACTA does not conflict with fundamental rights. The resolution mentions the possibility to ask the Court of Justice an opinion on ACTA.

Here is my suggestion for a question:

Whereas the Anti-Counterfeiting Trade Agreement (ACTA) has been negotiated behind closed doors,

Whereas EU law is already considerably more advanced than the current international standards,

Whereas the European Academics Opinion on ACTA and the EP INTA study point out possible incompatibility with the acquis with regards to, for instance, retail price damages, injunctions, provisional measures and border measures,

Whereas Korff and Brown apply fair balance tests to ACTA and conclude that, in their opinion, these tests show ACTA is manifestly incompatible with fundamental rights, rendering the safeguards in ACTA inadequate,

Whereas the European Academics Opinion, the EP INTA study and Korff and Brown note problems with the definition of commercial scale and note that the definition of the crime is vague and does not seem to have a de minimis clause, nor a general interest exemption,

Whereas, according to the Media Piracy in Emerging Economies study, in emerging economies, CDs and DVDs are often sold for the same prices as in the US and Europe; and 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; there is no distribution of legal CDs and DVDs outside the capitals and some 90% of the people in emerging economies can only turn to illegal media copies,

Whereas, in the opinion of Flynn and Madhani, ACTA is likely to make affordable medicines more scarce and dear in many countries; and ACTA only contains a reference to the Doha Declaration on the TRIPS Agreement and Public Health in the non binding preamble; and DG Trade uses a more limited interpretation of the Doha Declaration than the WTO; and ACTA has stronger measures than TRIPS and allegedly even stronger than the EU acquis,

Whereas article 15 UN International Covenant on Economic, Social and Cultural Rights reads: “1. The States Parties to the present Covenant recognize the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; (…)”

Whereas article 1 TEU paragraph 2 reads: “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.”

Whereas article 3.5 TEU reads: “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.”

Whereas article 5.4 TEU reads: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. (…)”

Whereas article 6.3 TEU reads: “Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”

Whereas article 21.1 TEU reads: “The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.”

Takes the view that there is legal uncertainty as to whether ACTA complies with international law and fundamental rights, and thus as to whether ACTA is compatible with the Treaties in these respects;

Takes the view that there is legal uncertainty as to whether ACTA is compatible with the Treaties in other respects as well;

Decides to seek an opinion from the Court of Justice on the compatibility of the ACTA with the Treaties.


The question is based on our analysis “EP legal service consistently overlooks known issues with ACTA“.

Update: Apparently, a member state of the Union (or Commission, Council or Parliament) can just ask one question: compatible with the Treaties? Example. So I rewrote the text.