They say the secrecy of the mandate of the EU-Commission is crucial:
We can’t make the mandate public because it defines the limits of where the EU is prepared to go with the agreement. If it is made public and other countries gained access to it they would know how far we will go or not go with the negotiations. This could make their tasks a lot easier. It’s like if you are buying a used car and you already know how low the seller will go with the price.
The mandate defines what the Commission may negotiate. It is a formal document which describes the authorisation, my government, Germany, your government empower jointly the Commission to negotiate with nations outside the EU. When that mandate is not public there is no way to scrutinize if the mandate for the Commission is in full compliance with the EU treaties. You can only guess if Commission conduct ist in compliance with its competences, in compliance with the mandate granted by the Council.
That is in particular a delicate technical question when it comes to ACTA criminal sanctions, the corresponding EU criminal legislation, the second enforcement directive, is not adopted yet. Harmonisation failed because of dissent in the Council. Criminal law is conservative and nations don’t want the EU level to mess with the diverse criminal law books. Some nations block the proposed directive in its first reading for a few years now, so the zombie proposal has to be relaunched anyway.
How could then the EU-Commission DG Trade assume competence to negotiate criminal sanctions with third nations (as they claim they do and leaks appear to confirm)?
That is what drives my personal technical curiosity in this ACTA process. The answer given from the Commission DG Trade so far was that it was upon the Council to stop them, they go for everything they can get, and competences and technicalities are a mere constraint.
What’s important is that the EU will respect the legislation that has already been passed. They have that obligation. And if there were to be any changes [to the legislation], they only would have to go through the whole EU due process procedure.
Of course, Trade agreements are not executive. Will it be adopted via the assent procedure, a mere formality as you know? If the EU legislator then fails to implement the trade agreement the EU might face trade sanctions. What a cynic deception!
In the end the EU legislator will be restrained in its flexibility on IPRED2 because of secret negotiations by the Commission with third nations on criminal enforcement aspects, based on a mandate that was not compliant with the treaties. That is bound to lead to later litigation before the ECJ and technical difficulties, and political confrontation.