The Japanese are staging a signing ceremony for ACTA, but we should question whether the EU is ready to join the party.
The Japanese Ministry of Foreign Affairs has invited the other ACTA (Anti-counterfeiting Trade Agreement) participants to a signing ceremony this Saturday. In a press release, the Japanese Ministry says that all them will attend, which presumably includes the European Commission – and indeed, the member states such as Sweden and Britain. But it is questionable whether there is a mandate for any EU institution to sign, whilst the European Parliament is still taking legal advice on the status of ACTA.
The signing ceremony will be held at
Iikura Guest House, Ministry of Foreign Affairs. Interestingly, the Japanese Ministry says that “representatives of those that have completed relevant domestic processes” will be attending, in addition to those countries which took part in drafting ACTA. It is not clear what they mean – which other countries and what are the ‘relevant domestic processes’?
What is clear, however, is that the European Union has not ‘completed the relevant domestic processes’. Even though it did participate in drafting ACTA, it is not politically ready to sign. Under Article 218 of the Treaty on European Union, the European Parliament will need to give its consent before that can happen. That means the Parliament has to take a plenary vote to approve ACTA.
Technically, the Council should put the signature, which means the Polish Presidency would do it - if they legally can which has a question-mark hanging over it.
The Legal Affairs committee is seeking advice before making any recommendation on signing or otherwise. Iptegrity has been given to understand that The legal affairs committee has turned to the Parliament’s own legal services in the first instance, and that it is trying to decide whether or not to refer the matter the European court of Justice.
There are a number of questions which the legal affairs committee wants answered. Top of the list is whether or not ACTA conforms with the EU’s acquis communitaire. Although the European Commission claims it is compatible, other legal opinions have suggested that it is not. ACTA knocks out procedural safeguards which are enshrined in EU law – such as the right to a court hearing – and will infringe on EU privacy law.
However, the shadow rapporteur for the legal affairs ccommitee is the French MEP Marielle Gallo, who is supportive of rightes-holder demands. The International Trade committee takes the lead on ACTA, and the rapporteur for its report is Kader Arif, whose position is unclear on ACTA and copyright issues.
Iptegrity has also been given to understand that European ISPs have written to the European Parliament, asking for a formal legal opinion on ACTA in respect to a number of specific matters, including the liability of ISPs.
And questions to the Commission continue to come from MEPs. Christian Engström, who sits on the legal affairs, has asked about ‘fair process’. On what basis does the Commission understand ‘fair process’ to be a fundamental principle, when no such language forms part of the EU acquis.
One of the reasons why there are so many outstanding questions, is that so little is known about how the EU conducted itself during the ACTA negotiations. The advocacy group European Digital Rights (EDRi) has requested ACTA preparation documents from the Commission, and had its request refused.
The Japanese Ministry also says that ACTA will remain open for signing for another 18 months until May 2013. Does that mean the EU has an 18-month deadline to make up its mind?
Netzpolitik on ACTA signing
FFII report on the ACTA signing
Question to the European Commission from MEP Christian Engström
Fair process’ in ACTA final text
Article 27.2 of the ACTA final text refers to the ‘fundamental principle’ of ‘fair process’.
Could the Commission explain:
1. What it understands by ‘fair process’?
2. How it came to this view? In particular, can the Commission provide references to the specific international legal texts or ACTA preparatory documents on which it bases its understanding of this ‘fundamental principle’?
Press release from the Japanese Ministry of Foreign Affairs:
Holding of the Signing Ceremony for the Anti-Counterfeiting Trade Agreement (ACTA)
September 27, 2011
On Saturday, October 1, the Ministry of Foreign Affairs of Japan will hold the signing ceremony for the Anti-Counterfeiting Trade Agreement (ACTA) at Iikura Guest House, Ministry of Foreign Affairs.
Please attribute this article: Monica Horten (2011) Will the European Commission go to ACTA party? http://www.iptegrity.com 28 September 2011 .