Due diligence of negotiating criminal laws in the ACTA process

Anticipation and suspicion. Snake and rabbit go for a stroll. It’s secret what would happen. I found this declassified doc extremely helpful to understand negotiations on the criminal chapter of ACTA. Now for real:

“At the beginning of the meeting, the Justice and Home Affairs Counsellor of DE supported by SE, NL, UK, IT and LUX, deplored that there has been no opportunity for the national experts to examine in depth the draft which has been submitted by the Presidency and expressed the wish that experts on the matter would be given the opportunity in the future to do so. At the same time, these delegations as well as LT and PL entered a general scrutiny reservation on the criminal provisions chapter while the UK delegation announced its intention to table relevant drafting proposals. Delegations deplored furthermore the fact that ACTA documents having the classification RESTREINT UE, were not easily accessible to the delegations, who consequently were notified those documents very late and were not able to prepare themselves at time for the meetings.”

Just an test inspection into ACTA negotiations formerly covered by secrecy. These allegations are pretty serious. Be reminded, the Criminal chapter of ACTA directly corresponded to the yet unadopted IPRED2 directive. The Commission had no competence to negotiate Criminal sanctions (because IPRED2 is not adopted, though the negotiating mandate mentions criminal enforcment which are also directly referenced in the Digital chapter).

After repeated requests MEPs found out that these aspects would be negotiated by the member states themselves, represented via an unclear legal base by the Council presidency which consults a “Friends of the Presidency” group. The negotiations on criminal sanctions are disloyal to the EU ordinary legislative procedure where the European Parliament gets full say thanks to the new Lisbon rules. Apparently the NL delegation was also unaware that the Netherlands Parliament had put a reservation against an IPRED2 harmonisation of criminal laws. How could it support negotiations on the same measures in an even broader process? Due diligence it seems does not get promoted by secrecy.

Advertisement

Read Full Post »

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.

Read Full Post »

ACTA and three strikes

As currently the ACTA negotiations take place in Mexico,  I would like to introduce a video of Luc Devigne, our EU Commission DG Trade negotiator. Luc Devigne is French and the head of the IPR unit of DG Trade, so the person to speak with when you deal with IPR issues of international trade policy. Below you find a great American Cpan video interview from May 2009 where he offers insights in the international negotiations around ACTA

Luc Devigne for instance advocates for the French “three strikes” rule concerning ISPs. Such measures are not yet part of the acquis communautaire, in fact in the course of the Telecom package such measures were generally rejected, though the European Parliament could not overrule the French national decision to implement such measures (“Hadopi”). Sarkozy’s Hadopi rules are in troublesome constitutional waters, we will see.

Luc Devigne is again very open that the ACTA is primarily targeted “at nations which do not respect IPR enough”.

10:30 Devigne talks about EU-US joint customs operations against copyright infringement

12:30 ACTA

On ACTA secrecy (13:00): No international trade agreement in public. They don’t own what the others delegations say. But public should be informed. That is why they organised two widely followed stakeholder meetings.

Not about personal items but commercial scale, they would apply de minimis rules.

15:30 Internet Chapter not addressed yet (May 2009). Everything about it was rumour.

Question: What is the idea of the internet chapter.

15:49 Sales by internet, cmp. TRIPS. Rightholders asking for more control, on the other side ISPs. Strike balance between both.

16:50 What about “information exchange” as opposed to product counterfeiting? No proposal yet. Then Devigne presents and finally embraces three strikes and explains why that has nothing to do with “information exchange”.

18:50 What to do against against companies like Pirate Bay? No comments as an administrative body on judicial affairs, mocks democratic rule standards in Sweden. Criminal sanctions cmp. TRIPs

20:20 Devigne explains and embraces the French three strike rules, compares offences with stealing CDs from a shop, and compares sanctions with a ban from the store. “But because it is exactly that”. Personal comment.

I really enjoy how thoughtful he talks.

Read Full Post »

Marshall interview on ACTA with the Commission

An unnamed official from the Commission responds to good and deep ACTA questions from journalist Rosalie Marshall.

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.

Read Full Post »