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.

Executive summary

• The agreement has to be compatible with internal Community policies and rules. (TEC 133.3)
• Unanimity in the Council is needed, (TEC 133.5 ; TEC 133.7 ; TEC 310)
• Common accord of the Member States is required. (TEC 133.6)
• The European Parliament has to be consulted. (TEC 133.7)
• Assent of the European Parliament has to be obtained. (TEC 310.3 ; TEC 310)

• ACTA can not be concluded before [http://press.ffii.org/Press_releases/Commission_withholds_key_study_on_criminal_measures_from_European_Parliament the study on whether criminal measures are essential], is ready, and the criminal measures proven essential. (TEC 133.6, ECJ C-176/03)

• The Community can not impose criminal measures if the policy field is not harmonised. This rules out patents, utility models, trade names. (TEC 133.6, ECJ C-176/03)
• The Community can not impose precise sanctions. (TEC 133.6, ECJ C-176/03, ECJ C-440/05)

Analysis

[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." "4. 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 harmonised, 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."

The Community's competence to impose criminal sanctions is limited (ECJ C-176/03, ECJ C-440/05). ACTA can not go beyond the Community's internal powers. 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]. ACTA can not be concluded before the study is ready, and the criminal measures proven essential. (Or the criminal measures have to be left out.)

The Community can not impose criminal measures if the policy field is not harmonised. This rules out patents, utility models, trade names. The Community can not impose precise sanctions.

• "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.

article 300

Article 300

• "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."

• "2. 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.

• "3. (...) 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.

• (...) 6. The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.
• Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.

Conclusion article 300

Assent of the European Parliament has to be obtained.

article 310

• The Community may conclude with one or more States or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.

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 a de facto association. Depending on interpretation, article 310 makes unanimity in Council and assent by the European Parliament necessary.

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