Brussels, 22/02/2012 (Agence Europe) - In order to quell doubts as to whether the Anti-Counterfeiting Trade Agreement (ACTA) is in line with fundamental freedoms, the European Commission has referred it to the European Court of Justice before taking ratification forward. The ACTA agreement is highly contested by internet users.
After ratification of the text was frozen by several member states that had signed it end January this year, and further to demonstrations against ACTA in several European towns, the college of commissioners agreed, on Wednesday 22 February, to refer the matter to the highest Community jurisdiction. “We are planning to ask Europe's highest court to assess whether ACTA is incompatible - in any way - with the EU's fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property”, Trade Commissioner Karel De Gucht told the press.
Negotiated outside the WTO in camera between 2007 and 2010 by Australia, Canada, South Korea, the United States, Japan, Morocco, New Zealand, Singapore and the EU, ACTA aims to protect intellectual property against traditional counterfeiting (clothes, medicines) and digital counterfeiting (illegal downloading) on the basis of harmonised international standards. However, a number of its provisions are suspected of being detrimental to the fundamental freedoms, especially that relating to internet use.
Under pressure from internet users, Bulgaria, Latvia, Poland, the Czech Republic and Romania, which had signed the agreement end January like 17 other member states, have since frozen the ratification process pending legal assessment of elements of the agreement likely to be detrimental to fundamental freedoms (Germany, Estonia, Cyprus, the Netherlands and Slovakia have deferred signature for “technical reasons”). At the European Parliament, where ratification must also take place, many Socialist, Liberal and Green MEPs have continued to denounce the grey areas of the text.
Karel De Gucht explained: “The European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available. So, a referral will allow for Europe's top court to independently clarify the legality of this agreement. In recent weeks, the ratification process of ACTA has triggered a Europe-wide debate on ACTA, the freedom of the internet and the importance of protecting Europe's intellectual property for our economies. But let me be very clear: I share people's concern for these fundamental freedoms. I welcome the fact that people have voiced their concerns so actively - especially over the freedom of the internet. And I also understand that there is uncertainty on what ACTA will really mean for these key issues at the end of the day. So I believe that putting ACTA before the European Court of Justice is a needed step. This debate must be based upon facts and not upon misinformation or rumour”.
In addition, the commissioner again pledged that ACTA would not go beyond the EU's current legal acquis. He reiterated that: “ACTA … aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law. What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world”. He went on to specify that the agreement “will help protect jobs that are currently lost because counterfeited and pirated goods worth €200 billion are floating around on the world markets”. De Gucht also promised that ACTA “will change nothing about how we use the internet and social websites today - since it does not introduce any new rules. ACTA only helps to enforce what is already law today”. He went on to conclude: “ACTA will not censor websites or shut them down. ACTA will not hinder freedom of the internet or freedom of speech. Let's cut through this fog of uncertainty and put ACTA in the spotlight of our highest independent judicial authority: the European Court of Justice. This clarity should help support a calm, reasoned, open and democratic discussion on ACTA”.
On substance, the Commission maintained mid-February that the digital chapter of the ACTA agreement does not establish suppression of illegal downloading through generalisation of the “three strikes and you're out” system applied in France (Hadopi law), a system that ACTA does not, however, ban. Provisions of the agreement do not concern the exchange of files between individuals and do not make it an obligation for service providers to become internet controllers in Europe, with intellectual property infringements only being taken into account if they are of commercial activity dimension.
David Martin (S&D, UK), who is rapporteur at the European Parliament, welcomed De Gucht's decision. In a press release he states: “The Parliament has been calling for more clarity for a long time, and we have already requested legal opinions from several committees (…). Now this ruling will be a good guarantee for the impact on fundamental rights. We will wait for the ECJ ruling before we draw conclusions, but an open political debate in the European Parliament is also necessary on the measures foreseen by ACTA. We must guarantee a good balance between intellectual property rights, which are fundamental for the European economy and job creation, and individual freedoms”. A first debate will be held within the international trade committee on Thursday 1 March. (EH/transl.jl)