February 19, 2012

Will ACTA compromise the European Court of Justice too?

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(Updated) The Commission will ask the Court of Justice an opinion on ACTA. It would have been better if the Commission would have withdrawn ACTA.

Earlier, the Court formulated an opinion on ACTA’s predecessor, the TRIPS agreement. The 1994 WTO TRIPS agreement spread out the enforcement of intellectual property rights over the world. Countries lost the ability to abolish their copyright and patent systems. For instance, the Netherlands abolished its suffocating patent system in 1869, and reintroduced patents in 1912. Since TRIPS, this is no longer possible.

TRIPS created global pricing problems. CDs en DVDs are sold for the same prices world wide. In emerging markets, 90% of the people can not afford to buy legal CDs and DVDs with software, games, music and movies. TRIPS locks countries in, and consumers out.

Worse, medicine is often sold world wide for the same price as well (with an exception for least developed countries).

A few years after the TRIPS agreement entered into force, the AIDS epidemic took millions of lives in Africa. Pharmaceutical companies sold AIDS medicine in Africa for prices higher than in the US (pdf). They only served a very small part of the market. The death toll was enormous. Despite the Doha Declaration, the problems are not solved.

In a worst case climate change scenario, fast diffusion of green technology will be necessary. But diffusion of green technology faces the same global pricing problem.

This is the present situation, under the TRIPS agreement.

Prior to the ratification of the TRIPS agreement, the European Court of Justice delivered an opinion on TRIPS. The Court ruled that the Community and its Member States were jointly competent to conclude TRIPs.

The Commission only asked the Court about competence, and no-one saw the global pricing problems and access to medicines problems coming.

But by now we know how devastating “trade agreements” can turn out. We know TRIPS should be rebalanced. We know it is irresponsible to go beyond TRIPS, as ACTA does.

An attempt to go beyond TRIPS damages our Union. ACTA has already seriously compromised the Commission for starting negotiations in secret. It compromised the Council for playing along (and wanting to criminalise everyday computer use).

The Commission refused to commission independent impact assessments of the effects ACTA may have on access to medicine, diffusion of green technology and fundamental rights. The Commission provides wrong information on ACTA.

ACTA seriously compromised the European Parliament as well. The Parliament lied about the existence of ACTA documents. It held secret meetings. Its legal service consistently overlooked known issues with ACTA. The Parliament declared its legal service’s opinion on ACTA secret, after the Legal Affairs committee decided to release it. The Parliament does not release ACTA’s earlier versions.

Now the Commission will ask the Court an opinion on ACTA. The Court, rightly, leaves the Union’s political processes much space. The Court will face the terrible task to either endorse a deeply flawed agreement, or to limit the Union’s political space.

The Commission’s irresponsible ACTA adventure compromises the Union’s Institutions. The Commission should do the right thing: withdraw its proposal for a Council decision on the conclusion of ACTA.