You may ask yourself how the EU can be party of the TRIPS agreement which comprises de minimis criminal sanctions and much more when many of these issues are not part of the EU acquis. It may surprise you:
94/800/EC: Council Decision (of 22 December 1994) concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994)
1. The following multilateral agreements and acts are hereby approved on behalf of the European Community with regard to that portion of them which falls within the competence of the European Community:
– the Agreement establishing the World Trade Organization, and also the Agreements in Annexes 1, 2 and 3 to that Agreement;
– the ministerial decisions and declarations and the Understanding on Commitment in Financial Services which appear in the Uruguay Round Final Act.
2. The texts of the agreements and acts referred to in this Article are attached to this Decision.
3. The President of the Council is hereby authorized to designate the person empowered to take the measure provided for in Article XIV of the Agreement establishing the World Trade Organization in order to bind the European Community with regard to that portion of the Agreement falling within its competence.
What does it mean for the Anti-Counterfeiting Trade Agreement and Trade policy? As simple as that, unlike the Commission DG Trade assumes it lacks competence for many TRIPS (annex 1C) matters. Community competence always overrules a larger TRIPS scope according to 94/800/EC.
What does it mean for ACTA
4. At international level, all Member States, as well as the Community itself as regards matters within its competence, are bound by the Agreement on Trade-Related
Aspects of Intellectual Property (the TRIPS Agreement), approved, as part of the multilateral negotiations of the Uruguay Round, by Council Decision 94/800/EC(3) and concluded in the framework of the World Trade Organisation (WTO).
With other words, not only lacks the Commission competence to negotiate penal sanctions because IPRED2 is not adopted, it also cannot base any competence claims on the TRIPS agreement. It seems certain, “hereby approved… portion of the Agreement falling within its competence” means “back in 1994… portions of TRIPS falling within those EC competence in 1994”. The “in 1994” is however omitted by the Commission. Even for IPRED1 and the customs regulations, concluded much later, which are part of the acquis TRIPS only appears to bind the members states.
Very interesting in the context of the customs regulation review, a pretty strange consultation seeking to put the customs regulation in line with TRIPS. It has to be demonstrated first that TRIPS is applicable for the Commission and if so, it seems riddiculous to base a customs review on TRIPS given that TRIPS was in place in 2003. The sole purpose of the consultation is to bring the acquis in line with the proposed ACTA measures, in particular anti-free trade protection such as geographical indications..