Stumbled upon this proposal (28.6.11) for a Decision to sign the controversial ACTA agreement at the Council
…ACTA is a balanced agreement, because it fully respects the rights of citizens and the concerns of important stakeholders such as consumers, internet providers and partners in developing countries.
and it goes on:
Regarding the signature and conclusion of ACTA, the Commission has opted not to propose that the European Union exercise its potential competence in the area of criminal enforcement pursuant to Article 83(2) TFEU. The Commission considers this appropriate because it has never been the intention, as regards the negotiation of ACTA to modify the EU acquis or to harmonise EU legislation as regards criminal enforcement of intellectual property rights. For this reason, the Commission proposes that ACTA be signed and concluded both by the EU and by all the Member States.
That’s batshit crazy! The Council appears to walk down the cynical road. Here is what Article 83(2) provides:
Article 83 (ex Article 31 TEU)
1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.
Essentially the Council Decision would endorse it permissable that the Commission and the member states together circumvent parliament prerogatives under the Treaties (and Treaty conditions) via an Agreement with third nations using the trade funnel. Outrageous and inacceptable.
It is may. Mayday for democracy and internet freedoms. I just stumbled upon a weird document. I have no idea where the released document originates from, if its an authentic governmental negotiations document release, no reason to dispute that, have a look, simply outrageous. According to the URI it was put online only this month by Techrights. Recently I often mentioned the Anti-Counterfeiting Trade Agreement (ACTA), a plurilateral IPR agreement negotiated by some industrialized nations. The ACTA drafts are a harmless Nagasaki-style menace compared to the H-Bomb-style proposal, a EU-India ipr agreement draft document. Appears to be part of a “dooms day machina” for democracy.
EU-India and the ACTA wolf
To me the document lets you view an evil wolf behind the ACTA, less window dressing, less constraints, focus on substantive law, not just on enforcement, what EU trade administration really had in mind before ACTA was publicly exposed. ACTA is dramatized by NGOs into an attack on the internet. Others criticise a lack of transparency. ACTA deserves better public scrutiny. It is not at all an internet agreement, it affects e.g. access to pharmaceuticals for developing nations. With so much public awareness cast on ACTA an institutional aspect is hardly understood: The Anti-Counterfeiting Trade Agreement (ACTA) is parallelized by bilateral trade talks with so called “problem countries”, among them India with its strong generic pharma industries, but also Korea and others. The bilateral agreements are negotiated by virtually the same few persons responsible for ACTA. EU-India is bilateral, two negotiating parties: EU (trade department) and India (trade department). It is far easier to negotiate bilateral agreements than plurilateral agreements, and certain dangers stem from that.
Backroom deals for billions of people
For European citizens the domestic effects of a “bilateral agreement” are exactly the same as of a plurilateral or multilateral one.[*]. Trade negotiators negotiate, legislators are asked to rubber stamp [+]. Provided the measures don’t get rubberstamped via ACTA (because parliament spotted it) administration can try again with bilaterals as EU-Korea, EU-India, EU-China, EU-Switzerland, EU-Bahamas, EU-Fiji, EU-Tschingbimbistan. While ACTA receives a lot of attention now (“light” which puts an end to the vampires, as J. Zimmermann of Quadrature coined their advocacy method), EU-India does not attract much debate and attention. An agreement which affects the legislative environment for billions of people, with no turning back.
With teeth
For EU anti-internet backdoor laws you don’t need ACTA, EU-India is sufficient to get criminal sanctions (Art 34), ISP liability (Art 35) and border measures (Art. 36), DRM protection and lots more. Of course all this is not in the existing EU legislation (“acquis”) . As an oddity the Techright document also refers to the idiosyncratic EU database copyright, an EU legislative failure as the Commission admitted in its policy review. The proposal exports these rights to India, too.
When Parliament insisted on internet freedoms for ACTA and rejected the three strikes proposals, the Commission pretended no one’s ever proposed that, the Commission publicly attacked those who mislead made the representatives aware of it. What we find in the EU-India document is an impression of ACTA as it was meant to be.
No one depends on ACTA
When the interested public and Parliament fails to spot undesirable measures in ACTA (cast light on it) we’ll get it anyway, sneaked through a bilateral route, because Commission trade specialists want it so. Domestic effects of institutional activism and forum shopping. The process demonstrates us how trade policy severely undermines parliamentarian democracy when trade administration steps into merely regulatory matters, legislation not trade. I hate to admit that but maybe the globalisation critics were right with their fierce criticism of the EU- “Global Europe” strategy spirit.
More EU-India
As I wrote above, I cannot confirm if the document was authentic but I found some background documents:
“On 28th June 2007, the EU and India began negotiations on a broad-based bilateral trade and investment agreement in Brussels, Belgium.”
Commissioner De Gucht speech 4 Jan 2010: “We must complement the multilateral system by strengthening key bilateral and regional relationships. This is because bilateral agreements can go further and faster in promoting openness and integration, by tackling issues which are not ready for multilateral discussion and by preparing the ground for the next round of multilateral negotiations. Many key issues, including investment, public procurement, competition, intellectual property, …, can be addressed in such agreements. This would mean concluding Free Trade Agreements or similar types of agreements with amongst others India, ASEAN countries, Ukraine, Canada, Euromed, but also Mercosur.”
Commissioner De Gucht about the agreement, Indian television, mentions the need to address “non-trade issues”. In his mind the term comprises issues like “Climate Chance” and “Human Rights” [x] but IPR aspects in the TechRights document are also not trade-related but legislative.
Aid agencies on EU-India: Aids, not internet, EU-India may hinder access to essential medicines: “In recent years, India has become “the pharmacy of the developing world”. Ninety-two percent of people living with HIV on treatment in low- and middle-income countries currently use generic antiretrovirals (ART), mostly manufactured in India.”
[+] Commissioner De Gucht in Frankfurter Allgemeine stresses that Parliament’s role is just approval and assumes institutional legitimacy for the Commission like in a nation state: “In einer Demokratie muss das Parlament bei der Handelspolitik mitreden. Auf der anderen Seite muss klar sein, dass nicht das Parlament die Verhandlungen mit unseren Handelspartnern führt, sondern die Kommission. Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten[!] so.”
[x] A classic Red Herring power technique, in order to avoid procedural criticism, that a trade process relates to non-trade issues, they shift the debate to other non-trade policy issues which are expected to be backed by potential opponents of the agreement.
[*] Bilaterals are a dangerous “policy laundry” road for our nascent EU parliamentarian democracy.
Admitted, I trust him. Dr. Paul Rübig is a great MEP from Austria, where he represents the Austrian Christian Democratic party (ÖVP) in the Industry committee. I know him as a fierce and passionate supporter of small and medium sized companies and European entrepreneurs.
Admitted, counterfeiting of goods is a problem for the European Union. Though references to the scape goat nations shift: when the first enforcement directive was in Parliament “Eastern European” counterfeiters took the blame. Now the Eastern European problem seems to have vanished and other “hordes” are said to threaten us and have to be fought on the beaches. How on earth does all this relate to ACTA? Listen to Dr. Rübig:
We have to consider what the superficiality does to our political culture. Cheap enemy advocacy schemes used by the Commission and lobby stakeholders fire back on conservative values, and lead to the kind of brainstorming we witness in the video. What do we expect when a person from the DG Trade makes his arrogant jokes on China?
Who educates the educators? Commission officials know very well that patents are strictly territorial and a national patent from Europe does not discriminate by the origin of a patentee, that would be against WTO non-discrimination principles we try to get respected abroad, also in the Chinese export markets. Patent enforcement is about our domestic market and order rules. Why do they suggest something else to our representatives? Why do these professionals assist our politicians with sloppy arguments?
Single Market Patent
At the same event Margot Fröhlinger from DG Market made a valid argument for the Community Patent (which has been stifled by patent office egoism for over 40 years): When you import a product from China to Europe, a patent has to be applied for by the European inventor in the import nation to stop the freight at the port from entering the single market.
What she did not clarify was that it is perfectly legal to import a good to e.g. the Belgium market (or manufacture it there) when patent protection is only granted for in Germany. In other words a “counterfeit good” in Germany can be perfectly legal elsewhere in Europe. The Chinese import becomes a German “counterfeit good” when it is further exported to the German destination market where the patent applies.
And here is the problem: We have a single market, we reduced border and customs protection, we have a community trademark but no single “community patent”. The EU-Commission can simply propose a directive to harmonize substantive patent law first, and then propose a “community patent” . Instead they chose the technically difficult way to make the EU a branch of the European Patent Convention, so that MEPs like Rübig have no control over future patent law, and then add a community patent as a designation for an European one. That path merely serves institutional interests from Munich.
ACTA and the global trading of legislation
ACTA goes one step beyond. Under the “Global Europe” strategy we enforce our laws abroad and cement the legal enforcement order of the Western industrial nations. In a first step European democracy and flexibility suffers and additionally we get “policy laundry” via trade talks. Most ACTA provisions relate just in a small subset to Counterfeiting where Europe has already the necessary measures in place. Rather European legislators would castrate themselves to put very controversial new internet rules etc. in place, based on preconceptions from trade officials, negotiated in secret.
Trade administrations advocate maximalist policies without any sensitivity to the difficult legal questions, industry needs or broad debate, build upon the TRIPS “minimum standards” sin fall of trade policy they chose the trade framework to de-facto legislate in secret. No more “free trade” but trading and exporting laws without any respect for the sovereignty of the foreign and domestic legislature. I am pretty sure the Commission lacks formal competences for legislative aspects under the EU treaties which bind its mission to a “free trade” objective.
A global “market for regulation” (Ashton), the use of trade instruments for global policy making does heavily fire back on the nascent European Union level democratic rule which would be enhanced by a global trade agreement regime pushed by trade adminstrations: “Liquid concrete”, as you know it tends to be anything but liquid. We known the arguments for soft patenting or against adjusting the patent protection terms to market dynamics: TRIPs alleged obligations cement our flexibility, reduce the flexibilities of European legislators to set better/different rules.
Trade negotiations are based on escalation… ACTA implementation would go beyond agreed measures… We have bilateral further forum shopping… etc. etc. etc.
Trade-off
Both a non-EU European Patent Office regime for a community patent and global legislation via trade agreements “cement” challenge democratic governance in an unprecedented way. In fact they lead to a situation where no legislator on the EU level is actually able to govern anymore. Finally a more powerful China may use such trade instruments to trade market access for human rights, and impose laws and regulation on us which serve Chinese interests.
Let me add another very dangerous governance aspect. Trade negotiations as a process were designed as a one-way street to dismantle trade barriers under the premise of free trade, that abolishment of trade sanctions and mutual reduction of tariffs is always beneficial. Of course that does not apply to legal standards which ought to be balanced in a policy mix.
Parliament is known to be perfectly qualified, in its variety of the MEPs from all over Europe and all partisan groups, to reach a good approximation of the public will, and following a broad and at times noisy process they reach a fruitful and balanced outcome. Trade officials and Commission technocrats would fail that objective by definition. Their decisions are based on institutional bias and preconceptions of their domain. Parliamentarian democracy is not perfect but alternatives do not look better. Democrats are willing to accept outrageous views of MEPs because there won’t be a single point of failure. We fully trust the process to add balance and reason. Let us hope our MEPs will get stay in charge.
Quick and hasty update. Today I finally got an answer from the European Commission concerning my confirmatory request for document access. As expected it was denied. Basically I contested several arguments and the reply did not get much into details. For quite some time I am interested in document access regulation and the tricky questions on how to draw the line.
As a result of my request, a document was “released”. A few days ago the FFII association launched a twitter joke related to that document:
From a mere citizen perspective in a liberal-democratic order I feel slightly scared by the secrecy and policy laundry from DG Trade. It explains why TRIPs as a trade process was a very dangerous precedent. A huge scandal is characterized by the amount of complaints. Can there be a scandal without notice and uproar? We don’t have a good phrase for the silent case. While the interested public now pays closer attention to ACTA it is of course all negotiated in parallel with bilateral talks, for instance the Korea-EU Trade Agreement comprises ACTA provisions. The usurpation of legislature by trade administration is a generic weakness of our order. Strange how the Commission is able to negotiate with third nations over related criminal provisions while there are no criminal provisions on the matter in the acquis communautaire. In the Council the member states fail to get common grounds on a proposed IPRED2 directive with criminal provisions.
Translated from my eurochinese: As there is no “EU criminal law”, the European Commission has probably technically no competence for the matter. While the corresponding EU-legislative project remains stalled because of EU member states dissent in the Council, the European Commission negotiates the same legislative aspects with nations outside the EU, trying to reach an agreement which would also bind EU legislators.
The Lisbon Treaty introduces a new form of public participation in European Union policy shaping, the European citizens’ initiative, which enables one million citizens who are nationals of a significant number of Member States to call directly on the European Commission to bring forward an initiative of interest to them in an area of EU competence. Before citizens can start exercising this new right, a few ground rules and procedures have to be laid down in an EU regulation.
Given the importance of this new tool for citizens, civil society and stakeholders across the EU, the Commission has opened a broad public consultation in order to seek the views of all interested parties on how the citizens’ initiative should work in practice.
Contributions to this consultation process should be sent to the Commission by 31st January 2010, either by email to the address “ECI-Consultation@ec.europa.eu”, or by post to the following address:
European Commission
Secretariat General
Directorate E “Better Regulation and Institutional Issues”
Unit E.l “Institutional Issues”
B – l049 Brussels
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