FAQ on referral of ACTA to European Court of Justice

By EDRi · February 23, 2012

This article is also available in:
Deutsch: [Häufig gestellte Fragen zur Vorlage des ACTA-Abkommens beim Europäischen Gerichtshof| https://www.unwatched.org/20120224_FAQ_zu_ACTA?pk_campaign=edri&pk_kwd=20120224]

Following the recent decision of the European Commission to refer the draft Anti-Counterfeiting Trade Agreement (ACTA) to the European Court of Justice, Access and EDRi have prepared this short FAQ to explain this process.

1 – How can the EC refer ACTA to the CJEU?

The possibility to refer a question on the compatibility of an international agreement to the Court is established by Article 218 of the Treaty on the Functioning of the European Union. A referral may be made by the European Commission, the European Parliament or by a Member State. While it is not unheard of for the Commission to refer international agreements to the Court, it is very unusual for an agreement to be referred in a situation where the Commission has previously unequivocally stated that the proposed agreement is legal.

2 – Is this a good or a bad thing?

It could potentially be either.

ACTA is a very complex proposal, covering a wide range of policy options. This complexity is made worse by its many optional provisions and its vague, confused language.

As a result, a general, directionless question to the Court as to whether the Agreement as a whole can be considered to be in line with the Treaties risks being too broad to lead to detailed deliberations from the Court on many of the more subtle points of concern. A politically-motivated question would risk undermine the Court’s independence.

Many pro-ACTA policy-makers now see a referral to the Court as a good strategy, because an approval by the Court could be sold as “proof” that ACTA does not present any problems – even though the response would only deal with a small fraction of the concerns surrounding the proposal. Also, as the decision would take approximately 12-18 months, they hope that the controversy surrounding the Agreement will have died down by the time a ruling is made, making it easier to finally approve it on an EU level.

3 – Why did the EC decide to opt for a referral?

According to last week’s minutes of the Heads of Cabinet (obtained by EDRi), the European Commission was profoundly impressed by the protests and described the “strong mobilisation” against the Agreement by “certain NGOs and movements active on the Internet.” This creates three problems for the European Commission:

a. A strong possibility of failure in the European Parliament

The increasing opposition to ACTA on the streets and among Member States created a very real possibility that the European Parliament would vote “no” to ACTA in June, effectively killing it.

b. The revision of the IPR Enforcement Directive (2004/48/ec)

The European Commission is planning to launch a Communication on revising the IPR Enforcement Directive in the summer. The relevant services of the Commission fear that a strong activist campaign around the vote on ACTA would attract too much public attention to this very far-reaching and problematic Directive.

c. Real doubts about the legality of ACTA

There is growing doubt in many parts of the Commission that ACTA is compliant with the EU’s obligations regarding free speech and the rule of law, both domestically and internationally.

4 – What are the questions that will be asked?

The question(s) will relate to whether ACTA is compatible with primary European law (the Treaties establishing the European Union).

According to Commissioner De Gucht’s statement, the Commission plans to ask the Court if ACTA is incompatible “in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.” Adding to this Commissioner Reding’s recent statement, which indicates her concerns for the implications of ACTA on fundamental rights, it is reasonable to assume that these concerns will be addressed in the referral. On the other hand, if this promise is not kept and the question is not comprehensive, then Commissioner De Gucht must be held to account.

5 – What would the referral not cover?

a. Compatibility with existing EU law

The biggest problem with a referral to the CJEU is that it will be portrayed as answering all concerns regarding ACTA. In reality, however, it can legally only address compatibility with the EU Treaties and not the full body of EU law (all of the Directives, Regulations, etc). This is an issue, because the European Commission claims that ACTA is fully in line with existing EU law, despite the fact that numerous studies, such as the one undertaken for the European Parliament, show that this is not the case.

b. The impact of freezing existing EU legislation

The IPR Enforcement Directive (IPRED) was adopted eight years ago and a review of this legislation is now planned. However, the European Commission has included significant elements of that Directive in ACTA, meaning that these cannot be substantively changed if ACTA is adopted – regardless of how significant the failings of the Directive are found to be in the review process. The ACS:Law case gives an indication of just how broken the Directive is.

c. Impact of novel elements of policy in ACTA

While IPRED and the E-Commerce Directive (2000/31/EC) promote codes of conduct to help address infringements (via technical measures in IPRED and via diligent, law-based responses in the case of the E-Commerce Directive), ACTA obliges States to encourage private stakeholders to undertake effective law enforcement measures through cooperative measures. The EU already knows what such cooperative measures look like in practice, as there are several telling examples already in place, which would become the rule under ACTA. These examples include:

* non-judicial “three strikes” in Ireland;
* arbitrary blocking of websites in the UK ranging from software designed to protect Iranian activists (https://www.torproject.org/) to French activist hub La Quadrature Du Net;
* the pressure brought to bear by the French government on hosting providers not to host Wikileaks’s website
* the ease with which researchers showed that obviously legal websites can be deleted in the Netherlands.

6 – What are the possible outcomes?

If the Court rules that the agreement is incompatible with the EU Treaties, than there are two possibilities, either the Treaties must be amended, or ACTA must be abandoned.

If it is decided that it the Agreement is indeed compatible with the Treaties, the process of ratification will continue: the consent of the European Parliament will still be needed to ratify ACTA at the European level and the ratification by Member States will also be necessary for the criminal sanctions aspects of ACTA.

However, it is hard to guess what the outcome will be. Much of this depends on how the questions are framed (see questions 2 & 4 above). However, a look at recent CJEU rulings may be instructive. In two recent decisions (Scarlet/Sabam – case C70/10 and Netlog/Sabam – C360/10), the Court made it clear that “nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right to intellectual property is inviolable and must for that reason be absolutely protected.” The Court decided that a fair and equitable balance was not reached and that the protection of intellectual property can not come at the expense of fundamental rights such as freedom of communication, protection of personal data, and the freedom to conduct business.

On the other hand, much of ACTA encourages breaches of fundamental rights without actually mandating them, so the Court may be forced to come to the conclusion that ACTA is contrary to the spirit of EU legislation but not contrary to the letter.

7 – How long will a ruling take?

In general, the European Court of Justice rules within twelve to twenty-four months. However, some European law makers are hoping for a faster ruling. Much depends on the choices made by the Court and the scope of the questions asked.

8 – In the meantime, what will happen to the debate on ACTA in the European Parliament

MEP David Martin, Rapporteur at the European Parliament on ACTA, said that the European Parliament is going to wait until the Court rules to draw any conclusions.

However, the ratification process in the European Parliament is not legally suspended. This will be the case only if the European Parliament decides to jointly refer ACTA to the CJEU with the Commission. A decision has not yet been made in the Parliament as regards what it will do in the meantime.

9 – Does this automatically mean a suspension of ratification in all Member States?

No. However, as referral strongly indicates that there is legal uncertainty about ACTA, it would obviously be more than unwise for Member States would choose to ratify an Agreement whose legality is being tested by the CJEU.

10 – How will this referral effect the review of EU legislation (such as IPRED)?

Currently, the EU has a number of pieces of legislation that are being overhauled and updated, most notably the review of the Intellectual Property Enforcement Directive (IPRED), which is in need of significant reform. Many key elements of the Directive which relate to fundamental rights, such as access to user data, are also included in ACTA. With this referral, the Commission and the European parliament will no longer be locked into the unnecessarily high enforcement standards that ACTA requires.

11 – What should be done while we await the Court’s ruling?

As the referral process will take several months (potentially up to two years), the Commission should undertake an independent impact assessment on the consequences that ACTA will invariably have for the rights of citizens, the European economy, and on countries outside the EU.

Member States may also ask to become parties to the referral, which includes providing their own opinions on the issue. As support for ACTA has significantly wavered in several Member States, such as Poland, Bulgaria, Germany, and the Netherlands, it will be crucial to ensure that they raise their concerns directly with the Court.