ACTA – fundamental rights and constitutional issues

The (draft) Anti-Counterfeiting Trade Agreement, otherwise known as ACTA, has already given rise to controversy – for example arising from the secrecy of the negotiations– and it looks like that controversy is set to continue.

On the 2nd October, 2010 the European Commission – in a joint statement with the other negotiating parties – that the final round of negotiations had concluded successfully and that

Participants in the negotiations constructively resolved nearly all substantive issues and produced a consolidated and largely finalized text of the proposed agreement, which will be submitted ad referendum to their respective authorities. The participants agreed to work expeditiously to resolve the small number of outstanding issues that require further examination in capitals, with a view to finalizing the text of the agreement as promptly as possible.

Later a draft text was included on a Commission web site dedicated to ACTA, though other negotiating parties have suggested that agreement had not been reached. This post is not to analyse the contents of the draft text – though the fact that it is now publicly available will make it easier to assess the claims of critics that the proposed Treaty gives law-makers too much latitude to enact legislation that infringes fundamental human rights. Of course, we might question the authority of the Commission to conclude a treaty if it does infringe such rights given the repeated emphasis the Court of Justice has given – in cases such as Kadi – to the rule of law and respect for human rights. The intention here, however, is to draw attention to the reaction of the European Parliament.

Since Lisbon, the European Parliament has had enhanced powers of review and has sought to exercise them. In March this year, the European Parliament passed a resolution, reminding the Commission of its obligation to keep the Parliament informed of progress and criticising the lack of transparency in the ACTA process, as well as concerns about the impact of the treaty on EU law, specifically that related to data protection. More recently,in response to the negotiating parties’ statement of last week, some MEPs issued a joint statement:

“These contradictory remarks highlight exactly what is wrong with treating matters of such importance and sensitivity beneath a veil of secrecy. It appears that there is no credible way of knowing whether the negotiations are actually concluded or not.
In case the agreement has indeed been initialled, we demand from the Commission to present the final ACTA text to the European Parliament as soon as it is procedurally possible. It is the Parliament that will ultimately have to decide on rejecting or accepting the agreement, and a complete and thorough briefing of its Members is now more urgent than ever.
Accordingly, we also call on Council and Commission not to proceed to any provisional application of the agreement, before the European Parliament has been given the chance to express its consent on the issue”.

Subsequently, the Commission offered a debriefing session on 7th October 2010 (which would take place without translators). One of the MEPs (Lambrinidis) behind the joint declaration more recently noted via Twitter that Declaration 12 has been signed by a majority of MEPs. Declaration 12 concerned the need for transparency in the ACTA negotiations. On Facebook, Lambrinidis emphasised the need for Parliament to have the chance to provide an ‘informed opinion’. this reflects concerns that the Commission is trying to present the European Parliament with a fait accompli – or given the lack of certainty as to the status of the ACTA negotiations – the appearance of a fair accompli. The European Parliament notes that with regard to a previous agreement – that dealing with PNR data – the European Parliament was given half an hour to read the text and give a formal opinion, thus pressurising them into agreement. Is the same approach being taken here? One cannot help but think back to the days when the European Parliament was a poor relation in the EU legislative process; then court actions were used so as to ensure that the Parliament’s privileges were properly respected, though the court sometimes took a very strict approach (See e.g Parliament v Council (Re European Development Fund) (case C-316/91) and Parliament v Commission (re legislation on organic production) (case C-156/93). Contrast, however, cases such as Parliament v Council (case C-21/94) (road taxes) in which Parliament’s right to be consulted was enforced, and in Maizena (case 139/79) in which the obligation to consult had not been respected because, although an opinion was sought, the regulation was enacted prior to that opinion being obtained. An early case perhaps warning the other institutions not to get ahead of themselves?

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