For the past past months Commissioner Karel De Gucht cheated the Members of the European Parliament about the lack of competence of the European Union to negotiate ACTA criminal measures, and overplayed the known fact in Plenary that there is no related Acquis existing. Many Members of Parliament trust De Gucht’s promises made that ACTA fully complies with the Acquis. Compliance with the Acquis was an argument for MEPs like German Daniel Caspary to support the controversial Treaty.
I think it is a good thing that the acquis communautaire remains unchanged.
Now Karel De Gucht is forced to admit that there is no criminal Acquis of the European Union existing and member states have to adapt their law when ACTA gets concluded.
Karel De Gucht answered (P-9179/10EN 15 Dec 2010):
On one area covered by ACTA on which there is no EU acquis, i.e. penal enforcement, it is possible that some Member States may need to adapt domestic legislation to comply with commitments they have undertaken in the negotiation of the ACTA section on penal enforcement. This section was negotiated by the rotating EU Presidency on the behalf of the Member States. However, the Commission wishes to stress that this does not concern EU legislation, since penal enforcement of Intellectual Property Right infringements is an area that is not yet harmonised in the European Union, and is still subject to the domestic legislation of Member States. In other words, there is no “EU acquis” in this area.
The acquis communautaire remains unchanged as there is no European acquis existing. That is an interpretation where you can assume that not all MEPs were able to get the cynical trick.
ACTA Criminal Chapter is like IPRED2 without a role for the European Parliament
What is interesting about the criminal sanctions in ACTA (that he admits effects changes of member states’ criminal laws) is that there is a legal base in the Treaty for harmonization of such criminal sanctions within the EU which would give Parliament much more say than a conclusion of ACTA, namely the “ordinary legislative procedure” for Council and Parliament as envisaged by Article 83(2) TFEU. With the very legal base an EU acquis for criminal sanctions for IPR infringements would then be created.
A pending legal proposal for IPR criminal sanctions from the European Parliament, known as IPRED2, was withdrawn by the Commission recently because member states failed to reach consensus for years. Now ACTA provides for the criminal sanctions but without the safeguards (e.g. Fair Use provision) proposed by the European Parliament and without any say of the European Parliament on the contents of the changes to national laws.
With other word, ACTA circumvents the new Lisbon competences of the European Parliament. The criminal chapter of ACTA corresponds to IPRED2 without a role for the European Parliament, without transparency and is negotiated outside the treaties.
The question remains if it is legally possible to circumvent the Treaties ordinary legislative procedures by trade agreements with third nations, and the European Court of Justice should be asked for an opinion on the matter.
In Frankfurter Allgemeine Commissioner De Gucht explained the anti-democratic trick with trade agreements of legislative nature:
Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten so.
Parliament is informed about the progress of the negotiations and may tell in the end “yes” or “no”, nothing more. That common for all international negotiations in all states.
The procedure for the member states to negotiate penal sanctions in absence of an EU Acquis stays obscure. Acoording to rumours criminal sanctions were negotiated by the Council Presidency together with a “Friends of the Presidency” group. To MEP Ska Keller the Commissioner De Gucht explained the procedure in more details (P-9029/2010 30 Nov 2010):
“ACTA addresses issues that are unquestionably exclusive competences of the European Union. Therefore, the Commission needed to seek negotiating authorisation and negotiating directives from the Council in order to negotiate the Agreement. At the time the Commission sought authorisation, a debate took place with Member States as to the conduct of negotiations on certain aspects of the agreement dealing with the enforcement of intellectual property rights through criminal procedures. In April 2008, the Council authorised the Commission to negotiate ACTA, pursuant to the then Article 133 of the EC Treaty (now Article 207 TFEU) and agreed that the rotating Presidency of the EU, on behalf of the Member States, would fully participate in the negotiations on matters falling within Member States competence. Such matters included the type and level of criminal penalties to be applied by ACTA parties for infringements of intellectual property rights and dispositions on penal procedural law, but not provisions on aiding and abetting.”
Have a look at Article 207 TFEU and check for yourself if there is a legal base for negotiating criminal sanctions for IPR infringement with other nations. It casts doubts whether criminal sanctions concern the “commercial aspects of intellectual property”. But apparently criminal measures are negotiated outside a legal base in the treaties by the rotating presidency. Criminal harmonisation within the EU framework would bound by Article 83(2) limits.
A few questions to the European Council members (under the premise that Art 207 is not a sufficient legal base and nations act as souvereign powers):
A. Is criminal harmonisation beyond the EU framework by EU member states, acting as souvereign powers represented by the rotating EU Presidency, permissable?
- Is prior harmonisation within the EU framework under Article 83(2) a prerequisite for negotiations beyond the EU framework?
- How does a delegation of national representation powers to the rotating presidency work?
- Are negotiations beyond the EU bound by the same limitations and principles as Article 83(2)?
- Is it possible to mix acquis/EU related and souvereign powers in a single agreement and in the Article 207 environment?
B. If member states failed to agree on the IPRED2 criminal harmonization as presented by the European Parliament because they don’t want EU interference in their diverse national criminal laws why do they presumably agree with ACTA criminal measures? How is the contradiction explained?
C. Is it possible to generally circumvent the European Parliament prerogatives under the Lisbon Treaty, their powers within the “ordinary legislative procedure” by concluding “Trade Agreements” of legislative nature instead between the Council member states and a nation X. Nation X beeing e.g. Switzerland, Liechtenstein, Norway or the Democratic Republic of Bananas.
I have to admit that I don’t fully understand your arguments. As long as there is no harmonization at all of these criminal sanctions in the EU, I would imagine that Member States are free to enter into any kind of agreements in this area without consulting the EU or its Parliament? If this is the case, why should they not be allowed to do this together? In other words, is there anything preventing Member States themselves to join a treaty relating to criminal sanctions while the EU as such joins other parts of the same treaty (those covered by the acquis)?
That’s an interpretation. But why is then a member states’ government represented by the “rotating presidency”, i.e. foreign diplomates, in these international negotiations?
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1) You are using a font which is very difficult to read!
2) There’s too much text, meaning there is not even a summary: what’s the conclusion?
The matter is technically complicated but only technical matters matter.
Conclusion is, let your MEP finally ask the Council(!) about the legal base of the ACTA Criminal chapter negotiations. We know for 3 years that there is no Acquis for criminal sanctions but no one formally asked the Council about it. Now after weaseling the Commission also admits that there is no Acquis but they promise everyone that ACTA would not go beyond the acquis. Whatever the criminal chapter includes “goes beyond” the current non-existing acquis or literally “does not go beyond” because there is none.
Acquis means a “European level law” exists. The Treaties enable the EU to adopt a European Law concerning criminal sanctions for IPR infringements, yet there is no adopted EU law, thus no Acquis. The legal base for an EU law would be Art 83(2) and the adoption process would give a strong role to the European Parliament. A proposal for such a European law, IPRED2, was pulled, because member states wanted to keep that as their national competence.
ACTA Criminal Chapter contents is like IPRED2, except that
* ACTA includes more nations than EU members e.g. USA, NZ
* ACTA is more unbalanced and one-sided and does not include safeguards as IPRED2 did
* the negotiations provide little say to Parliament, it is a trade process not legislation
And that raises questions about the procedural legality:
* ACTA Criminal Chapter is not negotiated by the Commission (because there is no acquis) but the rotating presidency. On what legal base does the rotating presidency negotiate the ACTA criminal chapter?
* Is it possible to adopt an international treaty by EU members when there is no corresponding Acquis, in other words “forum shopping”?
* Is is possible to mix acquis and non-acquis in the same agreement and how would it then be adopted?
If the ACTA process does not adhere to the rule of law because the negotiators lacked authorisation, ACTA (or at least its criminal chapter) cannot be adopted and are null and void.
Probably, this needs investigation by the European Court of Justice or at least EU legal expert review, you may not negotiate a trade agreement with legal provisions which go beyond the current EU laws (acquis) and you may also not negotiate a trade agreement with legal provisions when there is no EU law existing but just national laws. In this case member states may have an obligation under the treaties to adopt an EU law before they go beyond the EU.
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