Will ACTA be binding on the US, EU, France, Romania, the Netherlands and Singapore? Confusion over whether the Anti-Counterfeiting Trade Agreement (ACTA) is binding is mounting. On 1 December 2010, Dutch Trade Minister Verhagen said in a parliamentary commission meeting: “It has never come up to implement ACTA in the Netherlands. It so happens that ACTA is not superior to European or national law.” This is a remarkable statement.
Greens/EFA MEPs Engström, Sargentini, Beliér, Albrecht ask question on ACTA and Vienna Convention. KEI has the story. See also ACTA may shift the competitive advantage to the US and China.
Brussels, 7 February 2011 — A study commissioned by the European Commission advocates the abolition of the national prosecutor’s discretion whether to prosecute and how to charge the defendant. It also argues in favor of a European criminal court and for the criminalisation of patent infringements. The main question the EU study had to answer is whether EU criminal measures aimed at ensuring the enforcement of intellectual property rights are essential. The EU is only competent to adopt criminal measures if the criminal measures have been proven “essential”. The Foundation for a Free Information Infrastructure (FFII) observes that the study fails to prove EU criminal measures aimed at ensuring the enforcement of intellectual property rights are needed.
Already on 24 or 25 November 2010, the Commission and Council Presidency initialled ACTA. This became clear at the Ad hoc meeting – Anti-Counterfeiting Trade Agreement (ACTA), a DG Trade meeting to inform and consult civil society about ACTA. Mr Pedro Velasco Martins, Deputy Head of Unit, Public Procurement and Intellectual Property Directorate-General for Trade, represented the Commission. Mr Velasco Martins stated that ACTA will not change the current EU legislation, EU law provides higher enforcement levels than ACTA. The current EU legislation, the acquis, is scrupulously respected.
Here it is, the missing answer to Dutch MEP M. Schaake, which as the document shows was indeed published far too late although referenced in earlier statements to other parties. The Commission arrogant as ever simply disputes the substance. For the first time the Commission states that the provisions in ACTA such as civil and criminal sanctions relate to the “commercial aspects of IPR” legal base in Art 207 of the Treaties, a legal opinion that you would like to see get tested at the ECJ. Furthermore the answer contains an outright contradiction to an earlier statement (“will not require any legislative implementation in Europe.” [1]).
The resolution on the Anti-Counterfeiting Trade Agreement (ACTA) adopted by the European Parliament on November 24th 2010, contains fundamental flaws. The resolution expresses a belief that ACTA can not change present EU laws. This belief is unfounded and scrutiny reveals that ACTA can and does change present EU laws. The FFII published a document comparing ACTA and EU legislation. European Academics found inconsistencies as well.
“Contrary to the European Commission’s repeated statements and the European Parliament’s resolution of 24 November 2010, certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level. The following is a non-exhaustive list of illustrations that indicate the general tendency of ACTA: (…/…)
Taking above into account,
the Signatories of the Opinion invite the European institutions, in particular the European Parliament, and the national legislators and governments,
to carefully consider the above mentioned points and, 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, to withhold consent.”
Member of Parliament Jan Philipp Albrecht (Greens) wants to ask the “legal service of the Parliament if the final Version of ACTA and its foreseen legislative procedure is in line with the Treaties of the European Union and which legal possibilities there are for the European Parliament to challenge this in front of the European Court of Justice”. It seems Chairman Klaus-Heiner Lehne (EPP) is rather hesitant to do this. The Anti-Counterfeiting Trade Agreement’s criminal measures criminalise ordinary companies and individuals. The measures seem to violate the Treaties. Update: Decision postponed, awaits interpretation of RoP XVI.4.
We blogged earlier that ACTA Parliamentary question E-8847 from MEP Marietje Schaake is still not answered, even though the Commission refers to it. The FFII yesterday filed a request for documents. If the answer exists, we should have it soon now:
Detailed response to Question E‑8847/10
In its answer to Parliamentary Question E-8295/2010, the Commission writes: “As the Commission has explained in its detailed response to Question E‑8847/10(1)” [1] But the European Parliament website does not contain a link to the answer. [2] I would like to receive the detailed response to Question E‑8847/10. [1] http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2010-8295&language=EN
[2] http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2010-8847&language=EN
The European Commission quickly mentions ACTA in the Christmas review paper on the EU enforcement directive, the 2004 directive which roughly correspondonds to the civil enforcement chapter of ACTA:
Infringements of intellectual property rights taking place outside of the EU also constitute a major source of concern. The Commission is addressing them in different ways, for instance by including ambitious chapters on intellectual property rights in bilateral trade agreements and through participation in international initiatives, such as the on-going negotiation of the ACTA agreement. Quotes are taken from the REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS Application of Directive 2004/48/EC of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights, SEC(2010) 1589 final, 22 Dec 2010
The report on the IPRED1 implementation, the implementation of the Fourtou Directive, does not mention anymore the exaggarated dangers of Balkan product fakes which resulted in a rushed adoption of the directive, in fact the document is used to advocate for expanding of the enforcement framework. The analysis shows that certain provisions of the Directive including the relationship with other Directives are understood in different ways in the different Member States and have given rise to different interpretations and application in practice. These provisions could warrant further clarifications to make the Directive fully effective.
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