Where are ACTA’s “political corruption” provisions gone?

The July versions of the Anti-Counterfeiting Trade Agreement draft included political corruption measures in Article 3.3. to promote adhesion of prospecting nations to the agreement. The latest version of the draft Article 3.3 looks different:

ARTICLE 3.3: TRANSPARENCY/PUBLICATION OF ENFORCEMENT PROCEDURES AND PRACTICES
For the purposes of promoting transparency in the administration of its intellectual property rights enforcement system, each Party shall take appropriate measures, pursuant to its domestic laws and policies, to publish or make available to the public information on:
(a) procedures available regarding the enforcement of intellectual property rights including competent authorities for enforcement of intellectual property rights and contact points for assistance;
(b) relevant laws, regulations, final judicial decisions and administrative rulings of general application pertaining to enforcement of intellectual property rights; and
(c) efforts to ensure effective enforcement and protection system of intellectual property rights.

ARTICLE 4.3 is the new Article 3.3

At first sight the provisions seem gone in the 25 Aug draft. But now consider Article 4.3 where we find the political corruption measures in their diplomatic beauty:

ARTICLE 4.3: CAPACITY BUILDING AND TECHNICAL ASSISTANCE
1. Each Party shall endeavor to provide on request and on mutually agreed terms and conditions, assistance in capacity building and technical assistance in improving enforcement of intellectual property rights for Parties to this Agreement and, where appropriate, for prospective Parties to this Agreement. Such capacity building and technical assistance may cover such areas as:

(a) enhancement of public awareness on intellectual property rights;
(b) development and implementation of national legislation related to enforcement of intellectual property rights;
(c) training of officials on enforcement of intellectual property rights; and
(d) coordinated operations conducted at the regional and multilateral levels.

2. For the purposes of paragraph 1, each Party shall endeavor to work closely with other Parties and, where appropriate, countries or separate customs territories not a Party to this Agreement.
3. Each Party may undertake the activities described in this Article in conjunction with relevant private sector or international organizations. Each Party shall strive to avoid unnecessary duplication of the activities described in this Article with respect to other international efforts

Article 4.3 a) apparently overlaps with 3.4, which demonstrates us the remaining immaturity of the 25 August draft: In Article 3.4 we find provisions for moderate participation in public opinion building, of course a deviation from the principle of normative individualism:

ARTICLE 3.4: PUBLIC AWARENESS
Each Party shall, as appropriate, promote the adoption of measures to enhance public awareness of the importance of respecting intellectual property rights and the detrimental effects of intellectual property rights infringement.

Political Corruption decoded

In a public discourse it is common that angry crowds describe their governments as corrupt, swear on their government policies. That is not what I am talking about here. That would be emotional ranting but not actual political corruption. The case here is different, and  it is a clear case. The language was largely borrowed from the so-called development agenda process at WIPO.

Article 4.3 is a blueprint for political corruption.

• ‘Technical assistance’ for ‘development and implementation of national legislation related to enforcement of intellectual property rights’ is a diplomatic cover-up term for imposition of laws.
• ‘Capacity building’ means bribes and
• ‘enhancement of public awareness on intellectual property rights’ undue interference in the inner affairs of other states by means of propaganda.

Political corruption is subject to international and regional regulations which mostly stem from the United Nations Charter Article 2 fundamental principle, political independence of a state. The Council of Europe Criminal Law Convention on Corruption Article 6 mandates contracting states to establish political corruption as a criminal offence under domestic law when involving any person who is a member of any public assembly exercising legislative or administrative powers in any other State. Precisely, when committed intentionally:

the promising, offering or giving by any person, directly or indirectly, of any undue advantage to any of its public officials, for himself or herself or for anyone else, for him or her to act or refrain from acting in the exercise of his or her functions.

and

the request or receipt by any of its public officials, directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her functions.

Exactly that is what “technical assistance” and “capacity building” is about. These legal principles against corruption make sense. It is not upon us to participate in “development and implementation” of national laws by non-domestic legislatures or interfere otherwise in the inner affairs and political deliberations of those nations. I would like to see that fundamental principle preserved.

Commissioner de Gucht raises “public awareness”

Commissioner Karel de Gucht who bears the political responsibility for the ACTA process on behalf of the European Commission currently makes headlines in European mainstream news media with his antisemite remarks. It is likely that his current scandal would overshadow the ACTA deliberations in the European Parliament.

Wednesday, 8 September 2010 Final draft agenda 39k
09:00 – 11:50 Debates
Conclusions of the special ECOFIN Council meeting of 7 September
Protection of animals used for scientific purposes
Elisabeth Jeggle A7-0230/2010
Ongoing negotiations on the Anti-Counterfeiting Trade Agreement (ACTA)

I sincerely hope de Guchts media scandal won’t distract from the need to pay close attention to the radical and revolutionary policy proposals of the ACTA process driven against the ordinary democratic process in the participating nations. Contrary to popular opinion “ISP liability” is just one small item on the maximalist negotiations table.

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Social Democrat group concerned about De Gucht’s ACTA transparency

The Social Democrat group

Mr De Gucht today held a one-hour discussion with members of the Committee on Civil Liberties, Justice and Home Affairs at the European Parliament. But S&D MEPs said there could be no serious debate since members do not know the content of the negotiations.

EP vice president and S&D member Stavros Lambrinidis said: “It is unacceptable that the latest document is not available for this debate and that it will be accessible only at a later stage in a closed room. It was therefore impossible for us to have a serious discussion about the state of the play on ACTA negotiations.

“The European Parliament has co-decision powers for trade agreements and it should be informed at all stages of the negotiation. If the negotiators have nothing to hide, they should have nothing to fear about making the document available to the public.”

Dutch Vrijschrift added an allegation of ‘misinformation’:

The European Parliament LIBE committee ACTA hearing last Tuesday took an unexpected turn when Commissioner De Gucht said that there will not be a definition of commercial scale in ACTA. Member of Parliament Lambrinidis then asked for confirmation that the definition was out. De Gucht confirmed this. […]

Since then, the new text leaked. This text does contain a definition of commercial scale on page 15. […] In fact, the bracketed text shows the EU contributed to the new definition.

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EU-INDIA policy laundry or: ACTA as it was meant to be

Mayday! (doom mongering)

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:

• EU-Commission’s press release about these negotiation (2007):

“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.

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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:

part6:

part7:

part8:

part9:

part10:

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ACTA, Acquis, criminal sanctions

From an US NGO source:

KEI has learned that the European Union has proposed language in the ACTA negotiations to require criminal penalties for “inciting, aiding and abetting” certain offenses

As long as criminal provisions are not in the Acquis (as IPRED2 is not adopted) the European Union has no competence to make such proposals in international fora. Period. Commissioner de Gucht additionally promised Parliament they would not go beyond the acquis but apparently still holds some misconceptions what the acquis is about. It is very simple, as long as Ipred2 is not adopted there is no criminal law for these purposes in the Acquis, thus the EU has no competence whatsoever. If the Commissioner exceeds his competences in the negotiations expect a strong political confrontation and litigation before the European Court of Justice.

Luc Devigne from the Commission reportedly said in a meeting with the EPP staff, he has been working as a trade negotiator for the Commission for 15 years and was never scrutinized by parliament before. That whispered joke indicates the difficulties of a Commission unaware of the treaties it is supposed to defend as its guardian, now exposed to a stronger Lisbon regime Parliament. The support for the mostly EPP driven written declaration by other parties is stunning. Over night the conduct of Office from DG Trade became a cross-partisan concern.

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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.

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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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ACTA document access update

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:

#Commission unveils #ACTA criminal enforcement chapter http://register.consilium.europa.eu/pdf/en/09/st14/st14696-ex01.en09.pdf #fail

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.

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