We write to express our concerns about the Anti-Counterfeiting Trade Agreement (ACTA) under negotiation. ACTA will contain a new international benchmark for legal frameworks on "intellectual property" rights enforcement. While ACTA takes the form of a trade agreement, it is de facto legislation. Being a trade agreement, ACTA circumvents Community transparency and democratic safeguards regarding legislation.
ACTA will only be made public once all parties have already agreed to it. None of the EU's national parliaments nor the European Parliament will be able to scrutinize its contents in any meaningful way. ACTA constitutes a loss of parliamentary legislative power.
On the other hand, in the case of trade agreements, both the national parliaments and the European Parliament have vetoes on aspects of the trade agreement. Taking an active role, parliaments can restore some of their legislative power. Unfortunately, parliaments seem unaware of the vetoes, the power, they have.
We call upon you to take an active role, to set parliamentary scrutiny reservations, in order to safeguard transparency and parliamentary legislative power. We will show ACTA is important enough, deserves an active role.
== 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". 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.
Since this open letter, a document released by the Canadian government has confirmed that many topics mentioned are indeed part of the negotiations.
== Stealth legislation
ACTA will not be published prior to adoption in the Council. The Council both denies the right of access to Community documents (art 255 TEC); and the right to translations the national parliaments have under the "Protocol on the role of the national parliaments in the European Union". The Protocol stipulates that translations have to be available 6 weeks prior to adoption by the Council.
The Community acquis on "IPR" enforcement was developed in a transparent and democratic way. Both the national parliaments and the European Parliament were involved. As regards to international intellectual property agreements, they have traditionally been conducted in a more open and transparent manner. ACTA sets a precedent of stealth legislation.
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: "Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights."
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.
ACTA's secrecy makes it impossible to assess whether the European Parliament's and the member states' vetoes apply and should be used.
== Safeguarding parliamentary legislative power
Without parliamentary scrutiny reservations, the Council can silently adopt ACTA. Parliaments can stop this silent process by making scrutiny reservations. This is the first step to take. This way transparency can be enforced. From there on it is possible to scrutinise ACTA and competence issues:
+ 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. Consequently, the negotiation of ACTA shall require the common accord of the Member States as well. ACTA has to be concluded jointly by the Community and the Member States. (TEC 133.6) Alternatively, these services may be excluded from ACTA.
+ 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.
+ the Community did not adopt criminal measures yet in the field of "intellectual property" rights, unanimity in the Council is needed to add criminal measures to ACTA. (TEC 133.5)
+ 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]
+ the agreement has to be compatible with internal Community policies and rules. (TEC 133.3) To leave room to amend internal rules after assessment, an agreement has to be more conservative than adopted rules, e.g. IPRED 1.
+ Community action has to be proportional (TEC 5), it is essential to define the qualification characteristics of the elements of piracy as clearly and narrowly as possible. At the bare minimum, "infringing item", "commercial scale" and "intentional infringement" have to be clearly defined. Proportionality is more important in a trade agreement than in internal rules, since a trade agreement can not easily be changed and has no evaluation moments.
+ the Community can not impose criminal measures if the policy field is not harmonised. (TEC 133.6, ECJ C-176/03) ACTA can only go so far as policy fields are harmonised.
+ the Community can not impose precise sanctions. (TEC 133.6, ECJ C-176/03, ECJ C-440/05) Nor can ACTA.
+ national legal systems have their own general methods for dealing with recognized criminal offences like "attempting, aiding or abetting". The Community does not have the authority to harmonise these systems, not even after decision C-176/03.
+ the European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of the Treaty. (TEC 300.6)
By taking an active role, parliaments can safeguard transparency and parliamentary legislative power. If parliaments do not take an active role, we have to fear a disproportional ACTA, which sets a precedent of stealth legislation.