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:

The Commission wants a "path breaking" agreement. That does not seem compatible with internal Community policies and rules.

We will look at art 300 below.

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.

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 harmonised, unanimity is needed if ACTA addresses them.

The agreement relates to trade in cultural and audiovisual services. Common accord of the Member States is required.

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.

article 300

Article 300(52)

  1. (...) In exercising the powers conferred upon it by this paragraph, the Council shall act by a qualified majority, except in the cases where the first subparagraph of paragraph 2 provides that the Council shall act unanimously.
  1. Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310. (...)

We will look at article 310 below.

  1. (...) By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.

In the discussion paper, cooperation procedures are foreseen. The agreement will have budgetary implications for the Community, it is a matter of interpretation whether these are important. The agreement will create a fait accompli, with the foreseen "path breaking" content, acts adopted under the procedure referred to in Article 251 will have to be amended. Assent of the European Parliament has to be obtained.

Conclusion article 300

Assent of the European Parliament has to be obtained.

article 310

In the leaked document, the word association is not mentioned. That would rule out art 310. On the other hand dispute settlement and cooperation are mentioned, this implies some sort of association. Depending on interpretation, article 310 makes unanimity in Council and assent by the European Parliament necessary.

== Criminal measures ==

The Community can only take criminal measures if both the objective of the Community and the measures are essential. The Commission is [http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament studying whether criminal measures are essential]. If the Community can conclude this agreement before the study is ready, the agreement provides a way to circumvent Community internal rules. For this reason, ACTA can not be concluded before the study is ready, and the criminal measures proven essential.

The Community can not make criminal measures if the policy field is not harmonised. This rules out for instance patents.

[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