1. The Fish mandate (“SEC(2007) 1377”): The European Commission sent a draft recommendation to the Council to authorize the Commission to negotiate ACTA. Yes, they wrote their own negotiating directive. The infamous “Article 133 group” had it on their agenda, (the Commission was forced to provide a new proposal for a negotiating mandate cmp 2.)), then the Presidency presented a “compromise” which was rubberstamped by the Art 133 group, Coreper-2 and finally adopted via the Fisheries Council without discussions (14 April 2008).
2. The Commission was forced to present a revised recommendation for the negotiations mandate of ACTA (“SEC(2008) 255”). The Council reveals:
To obtain the Council’s agreement for the negotiation by the Commission of an agreement to improve the enforcement of intellectual property rights. This is a revised version of the negotiating guidelines adopted [by the Commission?] as SEC(2007) 1377, on 23 October 2007. Since the adoption of the recommendation, Member States asked the Commission to revise three aspects. The negotiation process with other ACTA partners has started and, until it has received its negotiating guidelines, the Commission services are participating in “silent mode”
4. Negotiating directives are kept secret, all the adopted versions and the drafts. Ironically a final SEC(2007)1377 final is dated 7.8.2008 and SEC(2008) 255 final 21.8.2008
5. Disclosed is currently only the explanatory memorandum of these documents, here is the diff:
“ACTA’s enforcement measures will apply, at least to those IP rights covered by Part III (Enforcement of IPR) of the TRIPs Agreement. However, it is not foreseen to include in the scope of ACTA any rules regarding the substantive protection of intellectual property rights.”
It lacks legal clarity because PART III of TRIPS does not define any rights.
6. Judging from the linguistic evidence the negotiating mandate was probably drafted by a Spanish national.
7. As the document was channeled via the Article 133 committee, that article of the treaties seems to be the relevant legal base, fishy again. Here the Nice Treaty version, of course the Lisbon treaty changed the situation, here it is Article 207 TEU.
8. The explanatory memorandum is a bit “freaky”, e.g.
“It is important for the European Union to be at the forefront of efforts to improve IPR enforcement and to work with other partners to make them as effective as possible. It would be politically damaging to do otherwise. Joining the ACTA negotiating process will send a strong message of our concern for the key competitiveness tool that is IPR. But, more importantly, it will have positive effects on the situation in the field, resulting from the increased level of cooperation between enforcement authorities and from the harmonised high standards of IPR enforcement.
…without effective means of enforcing intellectual property rights, innovation and creativity are discouraged and investment diminished. It is therefore necessary to ensure that the substantive law on intellectual property, which is nowadays largely part of the acquis communautaire, is applied and enforced effectively internationally.
Here comes the technical problem: when external enforcement of territorial rights was the core objective how does it work technically? Time to dig into Article 207 TEU and related provisions.