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Deutsch: Europäische Kommission erwägt taktischen Teilrückzug aus ACTA
At the meeting of the heads of cabinet of the European Commission on Monday of this week, Commissioner De Gucht's representative announced that a referral of ACTA to the Court of Justice of the European Union is currently being considered.
The minutes of the meeting, which have been obtained by EDRi, say that the head of cabinet described the "strong mobilisation" against the Agreement by "certain NGOs and movements active on the Internet" and stated that a referral of the Agreement to the Court of Justice is being considered. It is noteworthy that the suggestion is only to check the compatibility of ACTA with primary EU law. Such a referral, depending on how it is framed, risks being quite vague and may not lead to a comprehensive response. However, any broadly favourable response from the Court would most certainly be used to push through the Agreement, on the basis that the ruling "proves" that there is no problem.
The head of cabinet added that it is necessary to instigate a period of reflection on how the EU should position itself on this issue and to make an effort to go beyond the argument that growth in the digital economy is only possible with adequate protection of intellectual property. The Secretary General of the Commission closed the discussion by saying the Commission would return to the dossier in due course, after a "period of thorough reflection."
This brief exchange of views exposes a number of interesting points. Firstly, the Commission, and Commissioner De Gucht in particular, were clearly profoundly impressed by the weekend's demonstrations, contrary to the Commission's public statements. Secondly, the Commission now has sufficient doubts regarding the legality of the Agreement, again contrary to the Commission's public statements, that a request for confirmation of legality from the European Union's highest court is being seriously considered. Finally, the comments of the Secretary General clearly show that she sees a need for the Commission to think again.
Bearing in mind the extreme credibility problems of the European Commission on this dossier, any hint that such a referral is a delaying tactic, to wait until the furore surrounding the Agreement has died down, will further inflame the tensions around ACTA.
The Commission must finally recognise the breadth of serious criticism of ACTA, from thirteen members of the Sakharov Network of winners of the European Parliament's Sakharov Prize for Freedom of Thought, from the European Data Protection Supervisor, from the Organisation for Security and Cooperation in Europe, from the UN Special Rapporteur on Freedom of Expression (in his general comments on privatised online enforcement), from the group of European Academics and the European Economic and Social Committee. It may be comfortable to caricature critics of ACTA as ill-informed anti-IPR activists. As with many comfortable assumptions, it is wrong, it is insulting and it is counterproductive.
EDRi will write to the European Commission in order to warn of the dangers of being perceived to be manipulating the decision-making process by sending a weakly framed question to the Court of Justice or claiming that this will give a comprehensive answer to critics' concerns. The Commission needs to draw the consequences of the need for "thorough reflection" and use all legal and research options at its disposal to address the problem of the likely incompatibility of ACTA with primary and secondary European Union law. This needs to be done in a comprehensive manner.
Furthermore, if the Commission does indeed want "a period of thorough reflection," it should also undertake a thorough impact assessment, in order to study the possible impact of ACTA, regardless of the legality of the Agreement. By adopting ACTA, a decision would be made to make it impossible to reform key aspects of the 2004 IPR Enforcement before reviewing their impact and to export those measures to other countries, a decision would be made to encourage the Internet companies abroad to police their networks and potentially use this power to restrict access to markets, a decision is being made to impose disproportionate rules on damages and impose a grossly unsatisfactory set of criteria for imposing criminal sanctions for infringements. It is time for a full and independent impact assessment. Why would the Commission reject this request? Perhaps this is the one time that the phrase "if you have nothing to hide, you have nothing to fear" actually makes sense.
If all of this is done, we will find ourselves in about two years in the position we should be in already - with a legal proposal, backed up with an impact assessment that can be discussed on its merits.
This analysis remains identical, regardless of whether it is the Commission or (as appears increasingly likely) the Parliament takes responsibility for referring the question to the Court.
Sakharov Prize winners: Online Freedoms threatened by another step towards
treaty's adoption (15.12.2011)
EDPS: Anti-Counterfeiting Trade Agreement: EDPS warns about its potential
incompatibility with EU data protection regime (22.02.2010)
OSCE media representative urges European Parliament to reassess ACTA to
safeguard freedom of expression (14.02.2012)
UN Special Rapporteur - Report of the Special Rapporteur on the promotion
and protection of the right to freedom of opinion and expression, Frank La
Academics' Opinion on ACTA (11.02.2011)
Economic and Social Committee on IPR Strategy (12.01.2012)
IPR Enforcement Directive
(Contribution by Joe McNamee - EDRi)