By EDRi

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Introduction

Following the initial discussions in the European Parliament and the overwhelmingly negative workshop that was held on 1 March, ACTA is close to dead in Europe. What are the strategies for bringing it back to life and how will this impact on other similar initiatives? How can activists ensure that our great success so far can be maintained?

The original intention was to adopt ACTA in May or June 2012, with the Commission Communication on review of the IPR Enforcement Directive 2004/48/EC (also known as “IPRED”) being launched at approximately the same time. The Commission’s “roadmap” for the review of the Directive is available here.

The protests in the streets and the lack of support in the European Parliament created two big problems for the European Commission. Firstly, there was a significant risk of losing the Parliament vote and, secondly, the (successful) campaign against ACTA would create problems for the new proposal on the Enforcement Directive.

The European Commission therefore decided to refer ACTA to the Court of Justice of the European Union in order to “de-couple” ACTA from IPRED. This leaves the way open for the launch of a legislative proposal in November/December. However, it is quite likely that these will be delayed to some extent.

It has to be said that, while we would disagree with the Commission on a lot of aspects of IPRED, the Commission services working on the dossier do recognise many of the problems with the Directive and have ambitions to improve the legislation. They would, for example, seek to implement the rules against abuse of the Directive more effectively, in order to prevent disgraceful use of personal data, as in the ACS:Law case. The problem is that these positive proposals may not survive internal discussions in the Commission and the approach of the Parliament so far has been far from enlightened.

Step 1 – Talking the momentum out of the ACTA protests

Despite the fact that the Parliament will not be able to have a final vote on ACTA for at least a year, the decision was taken to pursue all of the discussions in all five Parliamentary committees for the coming months up to, but not including, the vote. As there will be no final consent vote this year, it is reasonable to assume that there will be less urgency felt among activists to communicate with parliamentarians, giving the Commission and (what’s left of the) pro-ACTA lobby more scope for lobbying.

Step 2 – Building towards “conditional consent”

The European Parliament can either vote “yes” or “no” to ACTA. However, the academics that wrote the otherwise very insightful study for the European Parliament argued that “conditional consent” is also possible. In this scenario, the European Parliament would ask for certain (non-binding) assurances from the Commission. The assurance could be that it would implement ACTA in a way that does not, for example, undermine fundamental rights or access to medicines.

The MEP responsible, David Martin, supports this approach and intends to table such a resolution in September this year, basing his proposal on feedback from the five Committees.

As this will be immediately after the summer break, this will reduce the possibility for activists to explain that such an approach offers no legal guarantees. In any event, the Commission is unable to offer guarantees for private companies or foreign companies that undertake the privatised law enforcement promoted by ACTA.

The European Commission would then, of course, confirm that it will not do anything that would (in their definition) undermine freedom of expression or access to medicines.

The launch of the legislative proposal on the review of the IPR Enforcement Directive would then happen in November – in the quiet period between the resolution and the Court decision.

Step 3 – Wait for the Court and then vote

The third step is then to wait for the Court ruling. Assuming that the ruling of the Court is that ACTA is not explicitly contrary to the EU Treaties, there will be a move to have a vote of the Parliament as soon as possible.

The Court ruling and the assurances received from the Commission can then be used for a robust defence of the work of the Parliament. The argumentation will go along the lines that “there were concerns about the implementation of the Agreement – we received (non-binding and partially non-enforceable) assurances from the Commission. There were concerns regarding compatibility of ACTA with the Treaties, we delayed the process substantially to prove that there is nothing legally wrong with ACTA. What more do the anti-ACTA campaigners want?”

This, it is hoped, would cause parliamentarians to forget that the Court will only be able to answer a fraction of the legal concerns about ACTA, that it would cause them to forget any assurance from the Commission about implementation would be not legally binding and would cause them to forget that what Europe needs is not more repressive measures and not the export of our failed policies, but a fundamental review and repair of our broken legislation.

Conclusion

The forces behind ACTA thought that they could negotiate in secret and get away with this. They were wrong. The forces behind ACTA thought that they could push the Agreement through without opposition from activists and they was wrong. Now, they think that activists do not have the resolve to defend our rights in the long term. They are so very wrong.

Time line:

* March 2012 to September 2012 – Discussions in European Parliament committees
* September 2012 – Interim Parliament resolution with implementation questions to the Commission.
* October/November 2012 – Non-binding response from the Commission indicating that it will implement IPRED along the lines requested by the Parliament (whose term of office ends in 2014)
* November/December 2012 – Launch of legislative proposal revising IPRED
* 2013/2014 – Ruling from the European Court of Justice
* Consent vote of the European Parliament – immediately after the decision, if the Court rules ACTA to be in line with the Treaties.