ACTA to be sent for judicial scrutiny: a Commissioner speaks

Karel De Gucht
A press release today from the European Commission is destined to buy time for the European Union's decision to opt for ACTA (Anti-Counterfeiting Trade Agreement: full text here) while political spin is put in place to make the unpopular and deeply-suspected Agreement more palatable -- and less legally objectionable -- to European voters.  That, at least, is this Kat's take on it -- though others may read it differently.  The press release reports a statement by Commissioner for Trade Karel De Gucht which runs like this
"''I am glad to say that this morning my fellow Commissioners have discussed and agreed in general with my proposal to refer the ACTA agreement to the European Court of Justice. 

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 [That's not a difficult job for a Court of Justice judge: freedom of expression, information, data protection and the right to property -- intellectual or otherwise -- are thoughtfully accompanied by countervailing public interest considerations, or competing private interests].

As you are no doubt aware, within the EU institutional process, the European Commission has already passed ACTA to national governments for ratification. The Council has adopted ACTA unanimously in December and authorised Member States to sign it. The Commission has also passed on ACTA to the European Parliament for debate and a future vote [It's a funny old democracy, says Merpel, where the decision to adopt ACTA is taken ahead of a debate and vote by elected representatives. Is this how they do it in Syria?].

That said, I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available [Why should the parliamentary representatives and the public have a greater need for "the most detailed and accurate information available", when the Commissioners are happy to take a decision without it]. So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement [Note the phraseology, says the IPKat: "clarify" = "make clear". The Court is not, it seems, being asked to determine whether ACTA is legal but to show clearly that it is].

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 [Er, not quite. Some of us have been debating ACTA in this context and beyond it ever since the first leaked drafts become available].

But let me be very clear: I share people’s concern for these fundamental freedoms. I welcome 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 [The Commissioner is, after all, one of the people. It's just that he happens to be in a position of substantial power and influence].

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 the misinformation or rumour that has dominated social media sites and blogs in recent weeks [The IPKat doesn't accept this.  If it hadn't been for the constant badgering of governmental institutions by blogs and the social media from the very start, there would simply not be a debate of any description -- and the "needed step" of putting ACTA before the European Court of Justice would be an improbable step].

As I have explained before the European Parliament on several occasions, ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights [Well, that's true]. These very standards are already enshrined in European law [indeed, the EU's substantive IP law seems fairly ACTA-compatible already]. 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 [How strange. Following the Court of Justice rulings in the Joined Cases of Philips and Nokia, see here and here, some might suggest that some European companies find it harder to defend themselves against blatant rip-offs of their products when they are crossing their own home territory].

This means that ACTA will not change anything in the European Union, but will matter for the European Union.

Intellectual property is Europe’s main raw material [the IPKat is unhappy with this metaphor, which suggests a sort of commoditisation of IP. It isn't a commodity; it's anything but raw. It is the result of patient research, trial, technique and in many cases vast investment], but the problem is that we currently struggle to protect it outside the European Union. This hurts our companies, destroys jobs and harms our economies. This is where ACTA will change something for all of us - as it will help protect jobs that are currently lost because counterfeited and pirated goods worth 200 billion Euros are floating around on the world markets [Merpel's sure that far more jobs have been lost through lawful processes such as outsourcing manufacture, design, marketing, accounting and other functions to low-wage based economies -- but that's another matter].

So let me be clear [no-one is stopping you!]: 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.

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 [a fog which, it is submitted, was artificially created] 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 -- whether at the national or at the European level. We will also be in contact with the other European institutions to explain this step and why it would make sense that they make the same move".
This Kat welcomes the Court of Justice reference, which proved to be a revealing and helpful process in showing up legal problems in the proposed Unitary Patent System. He doubts that it will find much in the way of fatal flaws, though, since a review of ACTA per se is not likely to raise issues that cannot be dealt with by fine-tuning. He is not against ACTA's objectives either. He still however feels great discomfort at the way in which the process leading to the conclusion of ACTA was conducted  and can fully understand the lack of confidence, the suspicion and the distrust that it has engendered. Responsive, elected democratic governments cannot expect to behave as they have done so in this instance and then demand respect and acceptance.

A big katpat to the IPKat's friend Magali Delhaye for so speedily tipping him off about the press release.
ACTA to be sent for judicial scrutiny: a Commissioner speaks ACTA to be sent for judicial scrutiny: a Commissioner speaks Reviewed by Jeremy on Wednesday, February 22, 2012 Rating: 5


  1. Might the ECJ avail itself of the opportunity to review the propriety of the secrecy cloaking the drafting of ACTA (which locked stakeholders such as ISPs out of the room) and of the Commission's action in accepting it prior to full consultation and debate? I do hope so.

  2. "ACTA only helps to enforce what is already law today." The standard defence for using secret police is that they 'only helps to enforce' the law.

  3. "This clarity should help support a calm, reasoned, open and democratic discussion on ACTA -- whether at the national or at the European level."

    Open and democratic discussion on ACTA? Since when? Do the US finally allow it? Or because this is the final resort to have this legislation pressed through the parliament like to shove corn through the throat of a Périgord duck (or goose, for that matter).

    Reading this, plus a very good deal of European Commiission driven propaganda (even more than during the referenda on the EU "constitution"), it seems there are people in Brussels willing to give everything just to get this pice of legislation accepted in Europe.


    And why do we need to ratify anyway, while the EU legislation does not need to be changed when EU would adopt ACTA?

    This does not smell good.

  4. I'm struck by the startling similarity between the Ipkat's annotations and the Pirate Party's internal discussions on this matter. I'm not sure if I should be glad that what we've been saying for years is now being backed up by the finest specialist legal minds, or if I should instead be posting a link to the party's sign-up page so we can welcome a new member!

  5. Dear Merpel,

    In international public law, representative of the executive power sign Treaties and subsequently these agreement are passed to democratic assembly (holders of the legislative power) for ratification.

    This is how it works in the majority of democratic jurisdictions. It is not an EU extravagance.
    It would be an anomaly, if ACTA had entered into force BEFORE ratification. This is not the case.

    Signing a Treaty
    Ratifying a Treaty
    and a Treaty entering into force are distinct stages.

    But hey, keep the EU hate flowing!

  6. Andrew -- I'm not at all surprised by the similarity between my comments on ACTA and the internal discussions of the Pirate Party UK. After all, your colleagues all read my weblog!

  7. Let us not forget that US and others for years tried to get enforcement of rights on the WIPO agenda, but in vain. Due to resistance from many governments, it could only be on the agenda of an advisory committee and even then only in such ways that everybody could be completely sure that nothing real would ever happen.

    When the open forum for international discussion of IP in this way refuses to take up important matters, it should surprise noone that eventually it will be sidelined.

    That is the real ACTA tragedy, and the minimalist IP lobby have themselves to blame for that.

  8. The anti EU remarks were really gratuitous.
    The Commission signing ACTA first and the parliament having to ratify it at a later time is nothing out of the ordinary.

  9. Readers may be interested in the summary prepared by EDRi on the reference to the ECJ.
    The guys there are putting forward the argument that reference to the ECJ is possibly quite dangerous as, unless the ECJ comes up with a clear 'no', the pro-ACTA voices will seek to use the judgment as proof lf legality. To a large extent this may come down to the question actually referred to the court (vague questions tending to lead to vague answers), thus giving power to those drafting the question. And who might that be, we may well ask....


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