ACTA: draft analysis competence issues

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" agreement 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 agreement 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" agreement. That does not seem compatible with internal Community policies and rules.

• "The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee on the progress of negotiations. The relevant provisions of Article 300 shall apply.
• In exercising the powers conferred upon it by this Article, the Council shall act by a qualified majority."

We will look at art 300 below.

• "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 agreement is intended to include non commercial acts. The agreement will exceed the competence granted in paragraph 5.

• "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."

The Community did not adopt criminal measures yet in the field of "intellectual property" rights, unanimity is needed for adding criminal measures to ACTA. Some of the "IP" rights are not harmonized, unanimity is needed if ACTA addresses them.

• "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 agreement 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 agreement is not covered by paragraph 5. Unanimity is needed. The European Parliament has to be consulted.

Conclusion art. 133

Unanimity in the Council is needed, Common accord of the Member States is required. The European Parliament has to be consulted. The agreement has to be compatible with internal Community policies and rules.

links

[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