Criminal sanctions in ACTA and the NIT procedure

The new service IP Watch features an opinion piece from Lassi Jyrkkiö who digs into the penal sanctions technical problem underlying the Anti-Counterfeiting Trade Agreement (ACTA):

“Yet apparently, as the Commission’s chief negotiator Luc Devigne stated – or let slip – on a hearing on 22 March, their perception is that: “We [the EU] have no acquis” on the matter.”

You can’t argue about facts. “Acquis” means the corpus of harmonized EU legislation. The Commission lacks competence when it is not in the acquis. The question was how penal sanctions can be negotiated when the Commission has no competence. I already asked that to Devigne during the first stakeholder meeting. Ever since the inclusion of criminal matters remains a procedural miracle.

Of course maybe some persons thought a competence could be provided ex post, by adoption of the wrecked IPRED2. Under the French presidency a modus was invented in which some member states participate in the negotiations. We may call it the NIT legislative procedure, for “not in the treaties”, where the governments act as sovereign powers like in the good old days. Of course a slight provocation to the Lisbon-regime EU-Parliament, Strasbourg won’t like it. Article 207 TEU. Let me quickly make up a few technical questions: How can e.g. one member state as a sovereign power be legally represented by a delegate from another member state? Do the French really agree with an English-only regime? etc. Cast light on it and it fades to dust.

One recent suspicion was that they at the Commission don’t fully get what “within the acquis” means. Trade Commissioner De Gucht for instance said in the Plenary they won’t go beyond the acquis and then mentioned related criminal law “which by the way is not yet adopted”. If it is not adopted it can’t be in the acquis.

Furthermore Luc Devigne explained at the stakeholder hearing that they won’t go beyond the acquis of existing legislation, and he was incompetent to speak about penal sanctions which are negotiated by Council. Actually, everything beyond the acquis exceeds their competences. So “we will not go beyond the acquis” means nothing. Then there is the infamous “negotiating mandate” from the Council, it is not available, most likely prepared by the Commission and according to rumours silently adopted without consultation of the competent IPR committee via the Trade committee of the Council, then rubberstamped in the Competetive Council Meeting (12 April 08?? – need to check) without further discussions. Again, according to rumours amateurish aspects of the mandate were then somehow sanitized under the French presidency…

At the 22 March stakeholder hearing Trade negotiator Luc Devigne from the Commission finally confirmed that Penal Sanctions are negotiated by the Council. The Council has not explained yet how the NIT legislative procedure works nor does the Commission. Members of the European Parliament seem to be very curious to find out. Because a NIT legislative procedure precedent would enable the Council to circumvent their Lisbon rights.

Ante Wessels stressed in a recent press release that the idea for a governance body able to amend ACTA would even go beyond the NIT escapism:

“Dedicated organisations tend to become champions of their speciality. Strong external checks and balances are needed to counter that. With ACTA, we rather seem to witness a deliberate attempt to create a captive in-crowd.”

I would argue, as the Commission does not care for technicalities, the technicalities would wreck the agreement as many other better focused, less complicated and more advanced attempts for single market regulation before. All players are now able to play shooting gallery and raise all the technicalities. Some persons may decide to save ACTA but others would be wise to leave the sinking ship.

Others may find the ACTA albatross useful for a consultation by the ECJ or reviving IPRED2, the criminal sanctions directive, and reopening customes regulation (revision underway). It is also fascinating as a subject matter for a student willing to write his or her phd in European and international law.

Advertisement

Read Full Post »

ACTA in Europarl INTA committee

A now very self-confident Trade Committee INTA of the European Parliament cratered the European top ACTA negotiator Luc Devigne from the Commission DG Trade (Wed 24 Feb 2010). Devigne took the interesting legal position that only their “EU negotiation position” has to reflect the acquis, not the scope of the ACTA negotiations as a whole. In particular, there is are no adopted criminal sanctions as part of the “acquis communautaire”, yet. Devigne previously took a maximalist position and said that it was upon member states to limit competences of the negotiations. The “Acquis Communautaire” is the corpus of law harmonized by the EU, and in the field of criminal law there are strong objections of member states to harmonize national criminal laws on the EU level. So while ACTA negotiations comprise criminal measures there are no harmonized criminal measures in the EU, thus formally the Commission lacks competence. It is a “technical” surprise to me, that the Council seems to believe that participation of few particular member states in the negotiations is a functional workaround. Unfortunately the Council refused to disclose the negotiation mandate of the Commission.

Chair

• Short introduction

Luc Devigne, Commission DG Trade

• improve the enforcement
• 11 trading partners
• enforcement NOT substantive
• not target non-commercial private individual
• not about internet termination and three strikes: clearly not the case (rem: Devigne himself put these French measures into the ACTA debate)
• Third stakeholder session

Daniel Caspary, Conservatives

• We don’t get enough information
• Where is the European interest (as opposed to the United States)?
• We don’t have EU level criminal law, so how can it be negotiated?
• Post Lisbon Parliament of Equal Footing -> member represented

Bernd Lange, Socdem

• Lisbon treaty: what happens? Insufficient level of information? Parliament involved?
• De Gucht promise. Interinstitutional agreement?
• Where is the info? Transparency?
• Restriction use on the internet discussed under ACTA.

• New Zealand leak
• Can Com guarantee that regarding you won’t take the same approach as in the Telecom package.
• Internet “free access” should be the principle

Martin

• Enforcement, not … — guarantee needed that we don’t have to change the acquis.
• Transparency lack –> suspicion
• Summary published, but it is rather a sketch
• Expect Commission to join the call for transparency.

Catherine Bearder, ALDE

• Secrecy concerns
• Consolidated negotiated text, deadline for comments, deadline 12 March, but we haven’t seen it.
• Lesson from SWIFT
• When are we are going to see the text, please?

Syed Kamall, ECK

• We all see importance of IPR, different positions
• How affect civilian and border control
• non-physical products.
• transparency, vacuum does not help, access to documents.
• unintended consequences of legislation
• “better regulation”, we want an “impact assessment”.

Carl Schlyter, Greens

• Why IPR criminal measures? Why not criminal on environment??
• How can you be sure that we don’t have to change the law.
• Crime to record movie screenings?
• Crime to remove interoperability on DRM content?
• Does the agreement say, countries may exclude or shall exclude?
• If you are suspected of rights breaches…

• Gets right holder access to infringing items? What effects on business espionage?
• Disable content access without prior to court ruling?

Luc Devigne, Commission DG Trade

• Industry EU/US interests: All IP right benefits the EU industries. All industries benefit, no national differences. (rem: There should be national differences, this is e.g. a base for TRIPS “trade-related” provisions. Devigne basically makes a case that ACTA is not within his trade portfolio, and reveals his simplistic “maximalist” mindset)
• International negotiations: parties around the table argue that their negotiations position should not get revealed. (rem: EU is governed by Art 15 TFUE citizen’s access rights but uses “international affairs” exceptions, media leaks claim that European participants denied the US call for more transparency, all negotiating parties seem to blame domestically the others for the lack of transparency)
• Stricly followed the rules, new rules negotiated
• Weird, lobbyists have document: We don’t share documents with lobbyists.
• Full respect: what is not in the Acquis will not be in the EU position
• We have de minimis rules in our position
• Criminal sanctions not harmonized. This is why they will not go beyond the acquis(???)
• Past informations
• We are asked about things which don’t exist. We cannot give what is not existing.
• We are not going beyond any Acquis and fundamental rights

Carl Schlyter, Greens (angry)

• Please answer my concrete questions.
• YES or NO.

Daniel Caspary, EVP

• I agree with the previous speaker.
• To what extent the seven Member states were involved.
• Parliament disadvantaged.

• Level of principles

Luc Devigne, Commission

• Don’t beyond the Acquis. “shall”, this is EU position of course. Cannot comment on content of agreement.
• Role of the parliament : over all position

What are the member states doing?

• “They attend.”

David Martin, Labour

• I also asked a specific question

Commission

• discussed with the member states, not a consensus yet at the ACTA table.

Carl Schlyter, Greens

• Point of order: Next time I would like to invite the Commissioner himself, because totally in conflict with information I got from the Commission.
• Conflict between Commissioner and his staff

Read Full Post »