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| Behind closed doors the EU, US and Japan negotiate an Anti-Counterfeiting Treaty (ACTA). According to the [http://ec.europa.eu/trade/issues/sectoral/intell_property/fs231007_en.htm European Commission's website], a "path breaking" treaty is foreseen. For this reason the Commission likes to work outside the normal formal structures. | 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" treaty is foreseen. For this reason the Commission likes to work outside the normal formal structures. |
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| Article 133: "3. Where agreements with one or more States or international organisations need to be negotiated, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Community policies and rules." | == Article 133: == "3. Where agreements with one or more States or international organisations need to be negotiated, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Community policies and rules." |
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| "5. Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6." | "5. Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6." |
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| "By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules. | "By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules. |
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| The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6." | The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6." |
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| "6. An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community's internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation. | "6. An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community's internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation. |
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| In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States." | In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States." |
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| he treaty may very well relate to trade in cultural and audiovisual services. Common accord of the Member States is then required. | The treaty relates to trade in cultural and audiovisual services. Common accord of the Member States is required. |
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| "7. Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5." | "7. Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5." As we saw above, the intended treaty is not covered by paragraph 5. Unanimity is needed. The European Parliament has to be consulted. |
ACTA: an illegal treaty?
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" treaty 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 treaty falls within the the EU's competence.
[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:
- "3. Where agreements with one or more States or international organisations need to be negotiated, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Community policies and rules."
The Commission wants a "path breaking" treaty. That does not seem compatible with internal Community policies and rules.
- "5. Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6."
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 treaty is intended to include non commercial acts. The EU does not have the competence to do this.
- "By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules. The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6."
Depending on the final text, unanimity may be needed.
- "6. An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community's internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation. In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States."
The treaty relates to trade in cultural and audiovisual services. Common accord of the Member States is required.
- "7. Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5."
As we saw above, the intended treaty is not covered by paragraph 5. Unanimity is needed. The European Parliament has to be consulted.
[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