ENDitorial: European Parliament defends itself and democracy from ACTA

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Deutsch: [ENDitorial: Europäisches Parlament verteidigt sich und die Demokratie gegen ACTA | https://www.unwatched.org/EDRigram_10.6_ENDitorial?pk_campaign=edri&pk_kwd=20120328]

The decision of this week of the European Parliament not to refer ACTA to
the European Court of Justice was a decision which has ramifications far
beyond the ACTA dossier itself. It is one which will have long-term effects
on the institutional standing of the European Parliament.

The functioning of the EU decision-making process relies on a broadly equal
balance between the three main institutions – the Commission, the Parliament
and the Council (Member States). The European Parliament is the only
directly elected institution. It is therefore particularly important that it
is robust and independent. The less powerful the Parliament is in this
institutional triangle, the less direct influence that citizens can bring to
bear in the preparation of legislation that affects every one of them.

In controversial dossiers, the European Commission and/or the Member States
have often sought to overrule the position (or expected position) of the
European Parliament, exploiting personal or institutional weak points,
pushing the Parliament’s democratic scrutiny of the dossier in question to
one side. Instead of judging a proposal on its merits, career ambitions of
individual MEPs or domestic political concerns are the primary factors that
decide the position of the Parliament.

This is what happened with the Data Retention Directive, where the UK
Presidency of the Council essentially bullied the Parliament into
submission. On the basis of the Parliament’s scrutiny of the Directive, it
would have been rejected. However, by a mixture of pressure from the UK
Presidency on the Parliament as a whole and the German government on German
MEPs, the Directive was approved. The fact that the Parliament could be
persuaded to abandon its position on a policy on the basis of bullying and
domestic political pressures inflicted damage on the institution that is
still visible today.

In the past few months, the ACTA dossier has become very similar. As the
likelihood of a rejection of the proposed Agreement by the Parliament grew,
the European Commission, with support from Parliamentarians motivated by
other priorities than the defence of the prerogatives of the only
democratically elected EU institution, has sought to use every possible
machination to prevent the Parliament from taking its vote.

The first such tactic was the referral of the dossier to the European Court
of Justice. If this measure was really based on genuine concerns about
ACTA’s legality, it would have been done far earlier – and certainly before
the dossier had been handed over to the European Parliament. From that point
on, the question was (and still remains) whether the European Parliament is
strong enough as an institution to defend itself from having its
decision-making process visibly and publicly undermined in this way.

The pro-ACTA lobby in the Parliament has used the Commission’s plan for a
Court referral as a basis to undermine the Parliament’s decision-making.
Every possible argument and strategy that could be used to prevent
a vote is therefore being brought to bear inside the Parliament to support
the Commission’s attempt to circumvent the Parliament’s role in the
decision-making process.

The same lobby is even seeking to persuade the Parliament that
it does not have the political right, even if it has the legal right, to
reject the Agreement after years of (untransparent) negotiation. This is why
they argue that rejection would “irrevocably affect Europe’s credibility as
a trusted global trade partner”. The argument to the Parliament is therefore
“do not use your legal rights. Do not seek to bring democracy into this
process, it will make the EU look bad.”

More surprisingly, elements within the Parliament are seeking to undermine
the Parliament. For example, elements of the Parliament’s legal service are
arguing that the Parliament’s rules of procedure can be understood to say
things they don’t say. The ostensibly neutral and non-political lawyers
argue that the Rule of Procedure, which say that the Parliament should
suspend its work if the Parliament itself refers a decision to the Court,
argue that – presumably on the basis that the drafters of the Parliament’s
rule were incompetent – the rules meant to say that deliberations should be
suspended if any institution refers a proposal to the Court.

With help from the industry and Commission lobbies, the anti-Parliament
elements in the Parliament generated a whole queue of implausible delaying
tactics on the production line.

Do the rules of procedure of the Parliament say what they do not say? Maybe
the Parliament should delay a vote for over a year to be on the safe side.
Or perhaps this question should be referred to the Constitutional Affairs
Committee to spend a few months reflecting on – with the Parliament
suspending its work in the meantime.

Perhaps the Parliament should produce an interim report, asking for
non-binding undertakings from the Commission and Member States about
implementation of ACTA, thereby wasting another few months.

It is a very positive sign that the European Parliament has decided to
resist the siren calls of the pro-ACTA lobby. It is a positive sign that the
Parliament is showing a new courage to stand up for its democratic role in
the decision-making process. However, there are still numerous possibilities
for delay and even a vote in favour of ACTA’s disastrous provisions. The
courage shown this week gives grounds for cautious (and, above all,
non-complacent) optimism.

Full overview of the delay plans
https://edri.org/acta_revival

Industry lobbying on ACTA
http://www.edri.org/files/acta_misinformation.pdf

Mr Wieland sacrifices the Parliament’s broader interests (27.03.2012)
http://acta.ffii.org/?p=1216

European Parliament Rejects Referral Of ACTA To EU High Court (27.03.2012)
http://www.ip-watch.org/2012/03/27/european-parliament-rejects-referral-of-acta-to-eu-high-court/

Cooperative efforts in ACTA Digital Chapter (2012)
http://www.edri.org/files/2012EDRiPapers/Article27.pdf

(Contribution by Joe McNamee – EDRi)