ACTA – outstanding issues (E-8295/2010)

Parliamentary questions 12 October 2010 E-8295/2010

Question for written answer to the Commission Rule 117
Franziska Keller (Verts/ALE) and Oriol Junqueras Vies (Verts/ALE)

Subject: ACTA — outstanding issues

In its resolution of 10 March 2010, Parliament:
— was ‘deeply concerned that no legal base was established before the start of the ACTA negotiations and that parliamentary approval for the negotiating mandate was not sought’;
— instructed the Commission to conduct impact assessments ‘prior to any EU agreement on a consolidated ACTA treaty text’.

A Commission trade spokesperson informed MEPs that the negotiators in Tokyo had ‘produced a consolidated and largely finalised text’ and that the Government of Japan had ‘hosted informal meetings’ with business leaders(1);

The Commission has silently withdrawn the IPRED2 proposal for a directive on criminal sanctions (2005/0127/COD)(2).

The Commission relies on the studies produced for IPRED2 to assess the impact of implementing ACTA(3).

1. In the Commission’s view, how does the legislative character of ACTA reflect on obligations under Article 15 TFEU (good governance and participation of civil society), Article 21 TEU (advancement of human rights and fundamental freedoms) and the Venice Convention (promoting democracy through law), in particular in respect of enforcement procedures and so-called ‘cooperative efforts’ to address infringements of intellectual property rights in the digital environment?

2. The legal basis for IPRED2 (Article 83 TFEU) does not say that Parliament and the Council may facilitate mutual recognition of criminal enforcement by means of trade agreements, but rather that the ordinary legislative procedure may establish minimum rules for the approximation of criminal laws and regulations. How will the Commission ensure that the democratic prerogatives previously envisaged for Parliament under IPRED2 are not bypassed by ACTA? Is it the Commission’s view that ACTA could enter into force in the absence of any EU acquis in relation to criminal enforcement?



  • The second part of her question goes to the heart of the criminal chapter. The Criminal chapter of ACTA corresponds to the proposed Criminal Enforcement Directive (“IPRED2”) under Art 83 legal base which failed to reach Council consensus. Recently the European Commission has withdrawn the IPRED2 proposal and thus terminated the IPRED2 directive process.
  • Comparison:
    ACTA Criminal Chapter: Negotiated behind closed doors by the Council Presidency with external Trade partners. Parliament(s) may ratify ACTA. No corresponding Acquis existing.
    IPRED2: Legal base Art 83 limits the extent of EU harmonisation. Ordinary Legislative Process. Full democratic scrutiny by Parliament. Adoption would make the act part of the Acquis.
  • Result: Council attempts to circumvent the new Lisbon powers of the European Parliament under Art 83 via Art 207. It is a highly sensitive constitutional question if a circumvention is permissible.
  • No Acquis for criminal enforcement of Intellectual Property Rights is available as the MEPs stress, not even a pending proposal anymore. For clarity, Acquis Communautaire = “body of law accumulated by the European Union”. Acquis is EU level law. Even an identical legal status quo in all EU member states would not constitute the Acquis. Neither does the EU competence under Art 83 qualify as Acquis unless an act is adopted under that legal base.


We know it is complicated, this is how to find out yourself:

Read the now obsolete IPRED2 (and the proposal voted by Parliament 1st reading) and compare provisions with the ACTA Criminal Chapter

– Read the post-Lisbon Legal Base Art 83 TFEU (for “IPRED2”) and Art 207 TFEU (ACTA negotiations). Compare the process.

– Find out why member states represented in the Council usually have issues with criminal harmonisation within the EU, and why they were unwilling and unable to adopt IPRED2 (proposed 2005, withdrawn 2010)

– If the Commission wanted to propose the contents of the ACTA criminal chapter as new legal proposal “IPRED2+” under Art 83 what would an “ordinary legislative” process be like? Would the contents adhere to the specific EU competence requirements of Art 83?

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