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.

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Negotiator Devigne and DG Trade’s ACTA anarchism

Journalist Monika Ermert provides a wrap-up of the ALDE hearing on ACTA for IP-Watch. Let me share my thoughts on a few other impressions from the April hearing on ACTA by the liberal group, organised by MEP Marietje Schaake (D66) and MEP Alexander Alvaro (FDP) (partial video recordings on youtube):

Servants and masters

When you have a servant you basically want him to obey his master (“you”) without the need for explicit orders and surveillance. When you are forced to give orders you don’t expect your servant to explore all means to circumvent or even oppose your will; you expect him to execute your will and act in accordance with your guidance. This applies to public servants at the European Commission as well. Usually persons in administration restrain themselves but trick a bit. Quite the opposite with DG Trade staff, they act against that rule and push everything to the max, driven by a kind of administrative activism.

What do I mean in the context of ACTA?

I am wondering who actually requested or mandated the EU negotiator to challenge the parliament or the legal base? Why does DG Trade follow an interpretation of the Parliament resolution that seems out of line with the resolution text? The resolution asked to limit ACTA to counterfeiting cases: the alternative interpretation of DG Trade is unsupported by the persons who drafted the resolution, not backed by anyone in Parliament. Did the new EU-Commissioner De Gucht endorse that an EU trade negotiator negotiates with the competent domestic legislator and democratic scrutinizer? I doubt so.

Maximalism

It is the one dimensional “maximalist attitude” which regards politics, legal technicalities, competences, balances, mandates, concerns as simple constraints to be pushed to their limits, because what matters is only your ultimate objective, maximum enforcement. You see the same strategic approach in the broadening of the agenda to include non-counterfeiting, all sorts of diverse rights and controversial legal tools. That ambition broadens also the alliance of its opponents and endangers consensus. Thus my bet that ACTA would “go nowhere”.

What fascinated me about ACTA from the very start of the process, the way in which the Commission brushed away all the technical difficulties, complicated technicalities that were so challenging in the previous ipred2 criminal sanctions process and the ipred1 debate. Unlike IP professionals and scholars they don’t care for the overall legal architecture. They would even call for the provision of “death penalty” for “suspected” counterfeiters and the only thing to hold them back would be the system of law&order, and fundamental rights including the European prohibition of death penalty, so they could not go for that.

My example isn’t as absurd as it may appear. Ironically, maybe without noticing what she called for, an Ebay representative once suggested the physical elimination of counterfeiters in a parliament hearing organised by MEP Mme Herczog, to “take them also off the offline world”. At the same meeting her colleague Arlene McCarthy (uk labour) made a crazy “direct link” between drug dealers, gun crime, child abuse websites, ip infringers and terrorism and called on the ISPs to stick to their “social responsibility” and filter the net. Most famous became the “three strikes/graduated response” idea in the context of ISP liability, language originating from military escalations and draconic penalty laws from the US for repeated offenders.

Three strikes

Net filtering isn’t very popular these days. Particularly relevant in the ACTA context are the controversial “three strikes” policies which lack political backing in Europe, quite the contrary now. At the ALDE hearing the trade negotiator had to admit that they would support non-mandatory recommendations / elements to this end as part of ACTA, because non-mandatory schemes would not change the acquis (Acquis, that is the corpus of existing legislation). I was very impressed. That was huge and I am not sure everyone in the room got the joke. As I don’t care much about the substance of ACTA but more the “technical” side, I was very amazed that they would attempt to slip through that loop hole. Quote:

You may call me a liar [hehe] but that is very clearly the Commission’s position and I will stand by it.

You see, the Commission staff in a harlekin role, kind of funny. At the stakeholder meeting 22 March a support for “three strikes” was still denied (which of course no one believed). There the same person still replied to Mr. Zimmermann it “won’t be induced neither”. A representative of internet provider XS4ALL was smart enough to think about a loop hole, almost like a bunny making friends with the snake, she asked if it “was hard” for the negotiator to get the “three strikes” out at the negotiations table with third nations (because when it is not in the “EU position” it can be played via other parties at the table and end up in the final text). “No one’s ever propose that”, was the answer of the negotiator, three strikes was “no one’s idea”. Rather a surprise given that it is a European idea, and they talked a lot about those graduated response options abroad.

The question remains unanswered who ever requested the EU-Commission to make (formal and informal) proposals or suggestions to trade partners towards this end? Who is actually put in charge here? You cannot expect Parliament to close all possible loopholes of a negotiating position which is not in line with its democratic will.

There is a great legend around the executioner Rosenfeld who killed captured Klaus Stoertebeker and all his fellow victual broethers (pirates) one by one. When he was mentioned by the Hamburg Senate for his dirty work he replied that it wasn’t a big deal for him, he wouldn’t mind the effort to let the members of senate follow in the line. The Senate didn’t feel comfortable with his bloodthirstiness and decided to put him to death.

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ACTA’s beginning of the end

The ACTA stakeholder meeting last week revealed that ACTA is going nowhere. The best indication for that was the lack of interest expressed by rightsholder groups. No one is interested in the technical mess and the broadened agenda. The poisoned apple was the unpassionate call of a few rightsholders who said they fully support the Commission and negotiator Luc Devigne said “thank you”. That is awful as it may get.

The EU negotiator is forced to deny and bend the truth on multiple fronts. That is a weakness, any supporter can withdraw and say they were deceived (like US-democrats “found out later” they were “deceived” by the Iraqi WMD tales). The Commission was very open about her agenda, now it is forced to hide and deny. Devigne irritates supporters who notice that the Commission lacks the power and guards a technically broken process with contradictory public statements to public and parliament alike.

Mr. McNamee commented for EDRI:

At a meeting in Brussels on 22 March 2010, the European Commission presented a counterfeit version of ACTA to participants. As with any good counterfeit, it bore quite a strong relationship with the genuine article. However, the differences were quite obvious for those in the know.

Mike Masnik puts it in excellent terms:

The talking points from ACTA negotiators seem clear. When accused of being secretive, deny it and insist that you’re being open. If really pushed on the matter, blame mysterious, nameless “others” for keeping the documents secret. Then, when specific items in the text are brought up, insist that these are being misrepresented, and if only you could see the real text (which you can’t, because it’s a secret) you’d know that it was all blown out of proportion. Then, finally, insist that ACTA won’t change any laws. Of course, if that were the case, there would be no need for ACTA at all.

Now, despite Masnik’s view the overall setup was not so inconsistent when you consider the 2008 story from the Commission on ACTA, it was consistent and easy:

• ACTA won’t change domestic laws. We are a coalition of the willing ready to confirm the status quo beyond TRIPS. We have to shop forums because WIPO and WTO are blocked.
• ACTA would be used as a trade chip in negotiations with ‘problem states’, and once adopted, traded on them with appropriate trade incentives.

Of course the second was against the UN Charta principles to which the Commission is bound by the EU treaties, a bit like “We have to invade Tschingingistan to save the oil”. But the 2008 narrative is not true anymore.

First of all the Commission negotiators went beyond confirmation of the status quo. All players expected so but following their maximalist negotiations approach they didn’t cheat a bit (cmp. EU-Korea FTA) but went too far. ACTA includes a wide range of new and controversial matters, many of them introduced by the Commission negotiators. Thus ACTA is drawn into a political conflict over parliament scrutiny powers and legislative competences (same on the other side of the Atlantic, cmp. the constitutional criticism on the presidential adoption plan by Lessig). The Commission does not do that in the open. They say they won’t go beyond the acquis but the inclusion of criminal matters which are not in the acquis raises eyebrows. These criminal matters are negotiated by the presidency, under an uncertain procedure. What does “not beyond the acquis” mean?

Secondly, Devigne denied the second item in the answer to Hammerstein, who asked about the Commission’s name and shame list. It seems riddiculous to deny such an approach and plan given the “Global Europe” strategy contents, also given earlier statements from the directorate. They would no do that, indicated Devigne. How pathetic!

Oh, and let’s not mention the desasterous performance of Devigne regarding admitting that they won’t respect the parliament’s resolution on limit to counterfeiting. There he stressed being in line with the acquis again.

What does “not beyond the acquis” mean? It probably does not mean what we ought to think and that provides room for great controversy in Parliament, will attract all parties to dig into the technical vulnerabilities of the process under the Treaties. What DG Trade apparently fails to realise is that they lack competence to go beyond the acquis. When Parliament calls you to respect the acquis, that is like when I am warned to obey the law. So you don’t get any flowers for that. When parliament asks to limit an anti-counterfeit treaty to counterfeit, just do that.

How many hearings of that kind could the Commission still afford, until a superiour would have to pull the plug? Observers noticed how Luc Devigne became the minedog while his colleagues hide away.

On Tuesday a consolidated version of the January state of discussions was leaked on the internet. The text shows that ACTA is nowhere near consensus. Trade negotiators are no specialists for international legal harmonisation. Legal harmonisation takes decades, slow and thoughtful debate.  Now a community of international legal specialists would jump in and inspect the leaked mess. More tricky questions to the negotiating parties ahead. More interest groups interested to put their stakes out the fire. How long would it take unless everyone notices that ACTA has nothing to do with a trade agreement (TRIPs was based on a fiction of barriers to trade) but is legislative? Mind the total costs of ownership (TCO) of untruths. Mind the incapability of the Commission to establish trust in parliament. Mind the technical difficulties of the process and on how many sides it can be challenged. Mind the still unresolved secrecy which attracts attention.

It is ACTA’s beginning of the end.

Open technical questions?

Just approach your ALDE MEP, they will have the next political hearing with the Commission on ACTA. Or contact the Commission, they offered to answer your questions.

Video recordings

part1:

part2:

part3:

part4:

part5:

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part7:

part8:

part9:

part10:

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