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It was perfect timing to bury the news: just as everyone else was packing up for their Easter holidays, DG Trade revealed its question for the European Court of Justice on ACTA (the so-called Anti-counterfeiting Trade Agreement). The question is controversial because it asks about ACTA and fundamental rights. So is the referral itself, which is dubbed by some as a political delaying tactic. The real question therefore is why DG Trade might seek to shun publicity, given that they believed the ECJ referral to be a good thing?

 The  ECJ referral asks:

"Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union?"

It is a deliberately drafted to be broad in scope, and is  probably the only text  that the whole Commission could agree on.

 DG Trade’s efforts have been overshadowed by the formidable Madame Reding, Justice Commissioner, who has made the strongest statement yet seen from the Commission to oppose the blocking of websites.

 On the other side of the Commission table it has the foxy Monsieur Barnier, Sarkozy’s man in DG Markt, who is pushing for ACTA, web blocking and more Internet-killer measures.

 In the middle is  the wavering Neelie Kroes in Information Society, who by rights should support the IT industries and oppose ACTA, but who in fact, has no clear position at all.

 So Karel De Gucht and DG Trade sit very uncomfortably  around the  European Commission table.  

Now let’s  not forget that only a couple of months’ ago,  DG Trade was organising the signing of ACTA, to the quietly sung praises of the rights-holders. Then, after the   vilification of the Commission during this winter’s citizen protests, it needed to change tack. Since the more liberal wing of the European  Parliament had been calling for an ECJ referral since the Spring of last year, DG Trade  probably hoped that a referral to the Court of Justice would win it a few Brownie points.

 But it was not to be.

 In the European Parliament, those who formerly supported a referral to the ECJ, are now demonising it as a delaying tactic. The MEPs who regularly give DG Trade a hard time over ACTA are not going to soften.

 As far as the lobbies go,  it is clear that no-one supports the referral. The  rights-holders definitely do not want it, because, whatever the outcome,  it will delay the   ratification process, and they will not be able to use ACTA until ratification is setttled. The citizen advocates do not want the referral because they want to take advantage of the negative tide of public opinion to force a rejection by the European Parliament. they are planning another day of protests on June 9th.

What  seems rather strange, is that the press release announcing the ECJ referral l tries rather tamely to spin ACTA as ‘good for trade.’ The release  is accompanied by some statistics on customs seizures of fake physical goods at EU borders -  totally irrelevant to the civil liberties issues and to the Europe-wide protests, which are mainly concerned with the Internet and freedom of expression.

 DG Trade is certainly caught between a rock and a hard place. But trying to hide a press release while everyone is away with the Easter Bunny does seem a bit weak. DG Trade could be losing the plot.  

 You may re-publish my article under a Creative Commons licence, but you should cite my name and provide a link back to Media and Academics – please cite as Monica Horten, ACTA referral: has DG Trade lost the plot? 10 April  2012 . Commercial users - please contact me.


Iptegrity in brief is the website of Dr Monica Horten. I’ve been analysing analysing digital policy since 2008. Way back then, I identified how issues around rights can influence Internet policy, and that has been a thread throughout all of my research. I hold a PhD in EU Communications Policy from the University of Westminster (2010), and a Post-graduate diploma in marketing.   I’ve served as an independent expert on the Council of Europe  Committee on Internet Freedoms, and was involved in a capacity building project in Moldova, Georgia, and Ukraine. I am currently (from June 2022)  Policy Manager - Freedom of Expression, with the Open Rights Group. For more, see About Iptegrity is made available free of charge for  non-commercial use, Please link-back & attribute Monica Horten. Thank you for respecting this.

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