ACTA: draft analysis competence issues

Behind closed doors the EU, US and Japan negotiate an Anti-Counterfeiting Trade Agreement (ACTA). According to the [http://ec.europa.eu/trade/issues/sectoral/intell_property/fs231007_en.htm European Commission's website], a "path breaking" agreement is foreseen. For this reason the Commission likes to work outside the normal formal structures.

An [http://wikileaks.org/wiki/Image:Acta.pdf ACTA discussion paper] was leaked. On this page we will discuss whether the agreement falls within the the EU's competence.

Executive summary

The agreement has to be compatible with internal Community policies and rules.

Unanimity in the Council is needed, Common accord of the Member States is required.

Assent of the European Parliament has to be obtained.

ACTA can not be concluded before [http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament the study on whether criminal measures are essential], is ready, and the criminal measures proven essential.

The Community can not impose criminal measures if the policy field is not harmonised. This rules out for instance patents. The Community can not impose precise sanctions.

Analysis

[http://eur-lex.europa.eu/en/treaties/dat/12002E/htm/C_2002325EN.003301.html CONSOLIDATED VERSION OF THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY]

Article 133:

The Commission wants a "path breaking" agreement. That does not seem compatible with internal Community policies and rules.

We will look at art 300 below.

According to the leaked document, the negotiators want to use a very broad definition of commercial, which may well fall outside a normal interpretation of "commercial aspects". Furthermore the agreement is intended to include non commercial acts. The agreement will exceed the competence granted in paragraph 5.

The Community did not adopt criminal measures yet in the field of "intellectual property" rights, unanimity is needed for adding criminal measures to ACTA. Some of the "IP" rights are not harmonised, unanimity is needed if ACTA addresses them.

The Community's competence to impose criminal sanctions is limited. ACTA can not go beyond the Community's internal powers. The Community can only take criminal measures if both the objective of the Community and the measures are essential. The Commission is [http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament studying whether criminal measures are essential]. ACTA can not be concluded before the study is ready, and the criminal measures proven essential. (Or the criminal measures have to be left out.)

The Community can not impose criminal measures if the policy field is not harmonised. This rules out for instance patents. The Community can not impose precise sanctions.

The agreement relates to trade in cultural and audiovisual services. Common accord of the Member States is required.

As we saw above, the intended agreement is not covered by paragraph 5. Unanimity is needed. The European Parliament has to be consulted.

article 300

Article 300

We will look at article 310 below.

In the discussion paper, cooperation procedures are foreseen. The agreement will have budgetary implications for the Community, it is a matter of interpretation whether these are important. The agreement will create a fait accompli, with the foreseen "path breaking" content, acts adopted under the procedure referred to in Article 251 will have to be amended. Assent of the European Parliament has to be obtained.

Conclusion article 300

Assent of the European Parliament has to be obtained.

article 310

In the leaked document, the word association is not mentioned. That would rule out art 310. On the other hand dispute settlement and cooperation are mentioned, this implies a de facto association. Depending on interpretation, article 310 makes unanimity in Council and assent by the European Parliament necessary.

[http://www.ip-watch.org/weblog/index.php?p=1071 Intellectual Property Watch]

[http://wikileaks.org/wiki/Image:Acta.pdf Leaked document]

http://ipjustice.org/wp/campaigns/acta/

http://www.eff.org/issues/acta/acta-submission-032108.pdf

http://ec.europa.eu/trade/issues/sectoral/intell_property/fs231007_en.htm