ACTA: The new era of transparency

LePoint quotes the Commission negotiator for ACTA in Mexico:

“Le principe de rendre publics les documents de travail avant la signature de l’accord a été accepté par tous, reste à savoir quand nous allons le faire”, affirme le négociateur de l’UE, pour qui “les gens seront rassurés lorsqu’ils verront les documents”.

I am wondering how he reconciles the principle of “making it public before it is signed” with the EU treaties. And even more weird, the answer to the question how it is possible to negotiate criminal penal law:

“Oui, nous négocions aussi en matière de droit pénal”, confirme la Commission. “Mais notre mandat respecte le partage des compétences (entre l’UE et les États membres, NDLR)”…

How is that possible? It cannot be found out because the mandate is not made public. Magic, it reminds me of the charlatans who say they live without food and water supply, and it is their personal secret what makes them survive.

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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.

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Fundamental freedoms on the Internet

This time a Parliament recommendation is different from the usual reports, because it is about the internet and communication freedoms. Most persons will overlook the provisions on criminal sanctions but that is the meat:

Strengthening security and fundamental freedoms on the Internet
European Parliament recommendation of 26 March 2009 to the Council on strengthening security and fundamental freedoms on the Internet (2008/2160(INI))

l) proceed to the adoption of the directive on criminal measures aimed at the enforcement of intellectual property rights, following an assessment, in the light of contemporary innovation research, of the extent to which it is necessary and proportionate, and while simultaneously prohibiting, in pursuit of that purpose, the systematic monitoring and surveillance of all users” activities on the Internet, and ensuring that the penalties are proportionate to the infringements committed; within this context, also respect the freedom of expression and association of individual users and combat the incentives for cyber-violations of intellectual property rights, including certain excessive access restrictions placed by intellectual property holders themselves;

m) ensure that the expression of controversial political beliefs through the Internet is not subject to criminal prosecution;

Provision l) relates to the so called IPRED2, the second IP enforcement directive (criminal measures) which is a kind of zombie law on the Council level, originally proposed in 2005. The Parliament report suggests to have a fresh reconsideration of the zombie but to prohibit “the systematic monitoring and surveillance of all users” activities on the Internet, and ensur[e] that the penalties are proportionate to the infringements committed”. The best technical solution to make this happen would be either a restart or the proposal of an amended version by the Commission.

The private telecommunication surveillance and interception is penalised by many penalty codes in Europe but recently Nokia disputed with the Finnish legislator over monitoring communication of its employees (“Lex Nokia”) to protect trade secrets. Most member states are not very keen to get the European Union involved with criminal law harmonisation, a controversy that apparently got started with the Maastricht revision round and the cumbersome installation of Europol.

Read the full text to see how diverse and broad the views of parliament are on the matter.

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