European Commission discusses tactical, partial retreat on ACTA

By EDRi · February 15, 2012

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Deutsch: [Europäische Kommission erwägt taktischen Teilrückzug aus ACTA |]

At the meeting of the heads of cabinet of the European Commission on Monday
of this week, Commissioner De Gucht’s representative announced that a
referral of ACTA to the Court of Justice of the European Union is currently
being considered.

The minutes of the meeting, which have been obtained by EDRi, say that the
head of cabinet described the “strong mobilisation” against the Agreement by
“certain NGOs and movements active on the Internet” and stated that a
referral of the Agreement to the Court of Justice is being considered. It is
noteworthy that the suggestion is only to check the compatibility of ACTA
with primary EU law. Such a referral, depending on how it is framed, risks
being quite vague and may not lead to a comprehensive response. However, any
broadly favourable response from the Court would most certainly be used to
push through the Agreement, on the basis that the ruling “proves” that there
is no problem.

The head of cabinet added that it is necessary to instigate a period of
reflection on how the EU should position itself on this issue and to make an
effort to go beyond the argument that growth in the digital economy is only
possible with adequate protection of intellectual property. The Secretary
General of the Commission closed the discussion by saying the Commission
would return to the dossier in due course, after a “period of thorough

This brief exchange of views exposes a number of interesting points.
Firstly, the Commission, and Commissioner De Gucht in particular, were
clearly profoundly impressed by the weekend’s demonstrations, contrary to
the Commission’s public statements. Secondly, the Commission now has
sufficient doubts regarding the legality of the Agreement, again contrary to
the Commission’s public statements, that a request for confirmation of
legality from the European Union’s highest court is being seriously
considered. Finally, the comments of the Secretary General clearly show that
she sees a need for the Commission to think again.

Bearing in mind the extreme credibility problems of the European Commission
on this dossier, any hint that such a referral is a delaying tactic, to wait
until the furore surrounding the Agreement has died down, will further
inflame the tensions around ACTA.

The Commission must finally recognise the breadth of serious criticism of
ACTA, from thirteen members of the Sakharov Network of winners of the
European Parliament’s Sakharov Prize for Freedom of Thought, from the
European Data Protection Supervisor, from the Organisation for Security and
Cooperation in Europe, from the UN Special Rapporteur on Freedom of
Expression (in his general comments on privatised online enforcement), from
the group of European Academics and the European Economic and Social
Committee. It may be comfortable to caricature critics of ACTA as
ill-informed anti-IPR activists. As with many comfortable assumptions, it is
wrong, it is insulting and it is counterproductive.

EDRi will write to the European Commission in order to warn of the dangers
of being perceived to be manipulating the decision-making process by sending
a weakly framed question to the Court of Justice or claiming that this will
give a comprehensive answer to critics’ concerns. The Commission needs to
draw the consequences of the need for “thorough reflection” and use all
legal and research options at its disposal to address the problem of the
likely incompatibility of ACTA with primary and secondary European Union
law. This needs to be done in a comprehensive manner.

Furthermore, if the Commission does indeed want “a period of thorough
reflection,” it should also undertake a thorough impact assessment, in order
to study the possible impact of ACTA, regardless of the legality of the
Agreement. By adopting ACTA, a decision would be made to make it impossible
to reform key aspects of the 2004 IPR Enforcement before reviewing their
impact and to export those measures to other countries, a decision would be
made to encourage the Internet companies abroad to police their networks and
potentially use this power to restrict access to markets, a decision is
being made to impose disproportionate rules on damages and impose a grossly
unsatisfactory set of criteria for imposing criminal sanctions for
infringements. It is time for a full and independent impact assessment. Why
would the Commission reject this request? Perhaps this is the one time that
the phrase “if you have nothing to hide, you have nothing to fear” actually
makes sense.

If all of this is done, we will find ourselves in about two years in the
position we should be in already – with a legal proposal, backed up with an
impact assessment that can be discussed on its merits.

This analysis remains identical, regardless of whether it is the Commission or (as appears increasingly likely) the Parliament takes responsibility for referring the question to the Court.

Sakharov Prize winners: Online Freedoms threatened by another step towards
treaty’s adoption (15.12.2011),41557.html

EDPS: Anti-Counterfeiting Trade Agreement: EDPS warns about its potential
incompatibility with EU data protection regime (22.02.2010)

OSCE media representative urges European Parliament to reassess ACTA to
safeguard freedom of expression (14.02.2012)

UN Special Rapporteur – Report of the Special Rapporteur on the promotion
and protection of the right to freedom of opinion and expression, Frank La
Rue (16.05.2011)

Academics’ Opinion on ACTA (11.02.2011)

Economic and Social Committee on IPR Strategy (12.01.2012)

IPR Enforcement Directive

(Contribution by Joe McNamee – EDRi)