By EDRi

This article is also available in:
Deutsch: [Juristischer Dienst des EP bestätigt: ACTA könnte rechtmäßig sein. Oder auch nicht. | www.unwatched.org/EDRigram_9.20_Juristischer_Dienst_des_EP_bestaetigt_ACTA_koennte_rechtmaessig_sein_oder_auch_nicht?pk_campaign=edri&pk_kwd=20111028]

Several weeks ago, the International Trade Committee of the European
Parliament asked for an opinion from the Parliament’s internal legal service
regarding ACTA’s legality and whether or not documents must be made public.
At the end of last week, the confidential response from the Legal Service
was delivered. The result is that the lawyers believe that ACTA may indeed
be, or possibly may not be, legal and in line with the existing legal
framework of the European Union.

In response to the question about whether ACTA is in line with existing EU
legal provisions, the Legal Service explains that the text is open to
interpretation but, on the face of it, the agreement appears to be in
line with current EU law. Of course, if the interpretations of the other
negotiating parties are different from those which the Legal Service has
guessed at, then ACTA may, indeed, not be legal after all.

Asked whether the preparatory documents of the Agreement must legally be
published, the Legal Service is very precise: there is no obligation under
international law to publish preparatory documents. They accept that
preparatory documents may be used to interpret unclear agreements and that
parts of ACTA are unclear. However, they helpfully point out that, as long
as the documents are not made public by any of the negotiating partners,
they cannot be used to assign meaning to the unclear sections of the text.
The Legal Service chooses not to address the wisdom of adopting an
international agreement, the meaning of which is likely to change if any of
the negotiating partners subsequently chooses to publish documents in order
to “prove” that its interpretation of the text is the correct one.

The only minor point of concern in this context is that the European
Parliament has already published the leaked text of the digital chapter
(which refers to private companies unilaterally cutting citizens’ Internet
access) on its own website. This minor point means that the European
Parliament has already shown that ACTA (by promoting lawless sanctions by
private companies against citizens and their right to freedom of expression
and due process) is in clear and unequivocal breach of the Treaty on
European Union, which requires the Union to support democracy and the rule
of law in its international relations.

In the meantime, the Commission has provided a rather unexpected answer to a
priority written question on the meaning of the previously unheard-of
“fundamental principle” of “fair process” that is referred to in ACTA. The
Commission does not seek to argue that the “fundamental principle” is a
fundamental principle at all. Instead, it simply explains that the meaning
of the term “fair process” can be found in the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS) of the World Intellectual
Property Association which… contains no reference whatsoever to “fair
process”.

The Commission expresses the hope and assumption that this is what the other
ACTA negotiating partners also understood. In short, the “fundamental
principle” is not a “fundamental principle” and its meaning is, at best, an
educated guess on the part of the Commission.

Parliamentary question
http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=P-2011-008444&language=EN

Parliament’s leak of ACTA digital chapter
http://www.europarl.europa.eu/meetdocs/2009_2014/documents/d-us/dv/supplemental-information-dossi/supplemental-information-dossier.pdf

Backup of Parliament’s leak
http://www.edri.org/files/acta_disconnection.pdf (see footnote 6)

FFII requests European Parliament’s Legal Services’ opinion on ACTA (15.10.2011)
http://acta.ffii.org/?p=833

(contribution by Joe McNamee – EDRi)