We write to express our concerns about the Anti-Counterfeiting Trade Agreement (ACTA) under negotiation. The ACTA negotiation process violates the transparency requirements of the "Protocol on the role of the national parliaments in the European Union". We call upon you to ensure that these requirements are respected and not circumvented. In this letter we will address competence, subsidiarity, proportionality and transparency issues.
== Introduction on ACTA
Behind closed doors, the EU, US, Japan and other countries are negotiating the Anti-Counterfeiting Trade Agreement (ACTA). On its website, the European Commission calls ACTA "path breaking". A U.S. government spokesman said that the ACTA text will only be made public after the parties have agreed to the actual text. In the U.S., ACTA is treated as an Executive Agreement, meaning that it will not go through the US Congress for approval.
The U.S. Senate Judiciary Committee expressed concerns about this modus operadi: "We are concerned, however, that the ACTA under consideration will prescribe rules for protection so specifically that it could impede Congress's ability to make constructive policy changes in the future. (...) Regarding the potential breadth of ACTA, we strongly urge you not to permit the agreement to address issues of liability for service providers or technological protection measures." [senate]
More than a 100 public interest organisations from around the world have called on officials from the countries negotiating ACTA to immediately publish the draft text of the agreement. [100g] Based on leaked documents and industry comments on the proposed treaty, the groups expressed concerns that ACTA may:
+ Require Internet Service Providers to monitor all citizens' Internet communications;
+ Interfere with fair use of copyrighted materials;
+ Criminalize peer-to-peer electronic file sharing; and
+ Undermine access to low-cost generic medicines.
We share these concerns and support the call for transparency.
ACTA has three major legs: International Cooperation, Enforcement Practices, and Legal Framework. In this letter we will concentrate on ACTA providing a new legal framework.
+ ACTA will not be published prior to adoption in the Council. Adding a legal framework to a trade agreement circumvents the "Protocol on the role of the national parliaments in the European Union"'s transparency requirements for Community legislation. The Protocol stipulates that translations have to be available 6 weeks prior to adoption by the Council.
+ in the landmark ECJ judgment on the Turco case (joined cases C-39/05 P and C-52/05 P), the Court stressed the importance of the public right of access to the documents of the institutions, including preparatory ones, especially in the case of legislative acts.
+ while ACTA is not a legislative act in the strict sense, it will be legally binding for the member states. ACTA is therefore de facto legislation and ACTA texts should be made directly accessible.
+ keeping the ACTA texts secret makes both properly assessing ACTA's proportionality and subsidiarity issues, and political scrutiny, impossible.
== Community Competence
+ ACTA can not surpass present Community legislation. (TEC 133.3)
+ ACTA will relate to trade in cultural and audiovisual services and educational services. This falls within the shared competence of the Community and its Member States. (TEC 133.6)
+ the intention expressed in a leaked discussion paper to address non-commercial acts by civilians does not fall within TITLE IX Common Commercial Policy. The Community is not competent. And even if it would fall within TITLE IX, it does not fall within "commercial aspects of intellectual property" (TEC 133.5). Therefore, unanimity in the Council is needed and Parliament has to be consulted (TEC 133.7)
+ if a specific institutional framework is established by instituting cooperation procedures, assent of the European Parliament has to be obtained. (TEC 300.3) The same is true if ACTA entails amending an act adopted under the procedure referred to in Article 251.
+ ACTA cannot be concluded before the study on whether criminal measures are essential, is ready, and the criminal measures proven essential. (TEC 133.6, ECJ C-176/03) [study]
For more competence issues, we would like to refer you to the FFII analysis. [analysis]