By EDRi

EDRi launches complaint on lack of transparency of European Parliament on ACTA

Over the past six months, EDRi has made repeated requests to the European Parliament for access to ACTA documents. Despite having voted not fewer than four times in favour of more transparency in this dossier, the Parliament has consistently refused our applications. Regrettably, this leaves us with no option other than a formal complaint to the European Ombudsman for failure to respect the relevant EU legislation (Regulation 1049/2001) on access to documents.

The few, heavily redacted, ACTA negotiating documents that were made available can be found here.

The text of our complaint is as follows:

EDRi wishes to launch a complaint regarding the lack of transparency with regard to documents in the European Parliament dossier on the “Anti-Counterfeiting Trade Agreement”.

The basis for the complaint are:

A: Our initial request for access to the documents was not answered on time in line with the Regulation 1049

B: The European Parliament’s refusal to provide access is not in line with the legitimate and reasonable expectations that members of the public have in the light of how the Institution has acted in the past:

1. European Parliament Written Declaration 12/2010

2. European Parliament Resolution of 10 March 2010, in particular paragraph 4

3. European Parliament Resolution of 24 November 2010, in particular paragraph F

4 The Cashman Report on Public access to European Parliament, Council and Commission documents, in particular paragraph 26.

C: The ongoing non-transparency of the Parliament which is not in line with the legitimate and reasonable expectations that members of the public have in the light of how the Institution has acted in the past, bearing in mind, such as the in camera meeting of the International Trade Committee on 22 November to discuss inter alia an unpublished internal Legal Service Opinion on ACTA.

D: The Article 32 of the Vienna Convention on the Law of Treaties explains that recourse can be had to preparatory works of a Treaty in order to confirm meaning, when this is unclear. We believe that the Legal Service Opinion of the Parliament attempts to explain that this only applies where the documents are publicly available. However, this implies that the meaning of ACTA could indeed change if any of our negotiating partners were, at any stage in the future (in relation to a dispute about implementation for example), to make the preparatory documents available. As a result, as things stand, the EU is proposing to bind itself to an international agreement, the meaning of which is unclear and may change, based on factors entirely outside our control.

This analysis puts the documents squarely inside the scope assessed in the Turko Case (C‑39/05 P and C‑52/05 P) in the European Court of Justice. In that case, the Court ruled that the documents must be published. As the text of at least one of the documents (see http://www.edri.org/files/acta_disconnection.pdf) has been published by the European Parliament and made available (although it has since been withdrawn) on its website, it is not tenable to argue that publication of that document, at least, would endanger international relations.