On 20 December 2011, the European Parliament Legal Affairs committee discussed ACTA. Video, debate starts at 11.31
According to MEP Marielle Gallo, rapporteur for ACTA, ACTA is compatible with the acquis, the current EU laws. In her draft opinion, which she will launch in January, she will try to respond to all criticism raised with respect to and against ACTA. She said that her dear colleagues should be aware that ACTA is compatible with the Community acquis.
She referred to art 6 ACTA, which is a provision to be applied horizontally and which guaranties against all abuse. It also guaranties respect for the principle of proportionality. She called to look at ACTA at its merits, and forget about rather far-fetched opinions.
She also referred to ACTA art 27, paragraph 2 and 3 containing safeguards.
Beyond the safeguard clauses which are in the agreement, interpretations of provisions can only be done in the light of European Court of Justice case law, no Institution or member states can go against limits which are established by the highest level of EU legal system.
Pirate MEP Christan Engström said the Legal Service’s opinion confirms many concerns raised about the ACTA agreement whether it is compatible with fundamental rights in the EU and elsewhere in the world. In paragraph 40 the language is extremely guarded: “It appears that the agreement per se does not impose any obligation on the Union that is manifestly incompatible with fundamental rights.” If I ever listened to guarded legal language, that’s it. The Opinion is quite rightly so guarded because very much depends on how this agreement is actually implemented in member states’ law or directives.
He gave the example that damages should be proportional, mentioned that ACTA’s damages are based on retail price. A 2 terabyte disk can hold roughly half a million songs, if you calculate that at the market price of 1 euro per song, which is normal, the damages for having a 2 terabyte disk, full of music, would be half a million euro.
“Now would that be proportionate or not? This is not an extreme example, this is something that lots of teenagers do. Is it really proportionate that a family would have to sell their house and all their possessions if it were found out? This legal opinion seems to be of the opinion that well, yes, perhaps that could be.”
“The lawyers who wrote the assessment for the INTA committee in June this year where of the opposite opinion. They said this raises real concerns about whether this is proportional or not. The ACTA agreement is at the very least borderline when it comes to respect of fundamental rights.”
“We have a case where there are opposing opinions from quite serious and qualified lawyers at both sides. The ones of the INTA assessment saying this is probably not proportionate, the legal service suggesting may be it is or not.”
“This strengthens the case for what we are asking for that we should send the ACTA agreement to the European Court of Justice to get clear and proper guidance as to how it should be implemented, if it can be implemented in a way that is compatible with fundamental rights and the acquis.”
Mr Engström said the legal service mentioned that three strikes were taken out. A year ago the Commission had replied to Engström’s question that three strikes never were discussed.
“As the legal service points out, the problem with the ACTA agreement is that it is very vague. It is not at all obvious how various things should be interpreted.”
“One of the core aspects of the ACTA agreement is cooperation between rights holders and Internet service providers and the business community in general. Earlier is was clear that meant three strikes. But now it is unclear what this cooperation is supposed to mean.”
Mr Engström mentioned that China is not a party to ACTA, and asked whether ACTA is worthwhile at all. With signing ACTA we will lose all our moral high ground in relation to China.
Liberal MEP Thein supported transparency and the call for a European Court opinion.
Austrian Green MEP Eva Lichtenberger said we have to get clarification from the Court and legal certainty. These things can be used against citizens and also against competitors.
A EP legal service representative said that experts agree pretty much with the conclusions they reached. In the draft agreement there is no provision allowing us to conclude that there is a contradiction per se with fundamental rights, of course, obviously, you have to look at the application of such provisions. He said the Parliament can ask the European Court of Justice an opinion on ACTA.
He said that regarding access to the legal service’s opinions the Secretary-General was the final authority.
Mrs Gallo said that asking the Court an opinion on ACTA would lose two years and that would have disastrous effects on the economy of the EU.
Comment: It is rather shocking the legal service’s representative said that experts agree pretty much with the conclusions they reached. It is rather the opposite. See the Further analyses section of our 19 December letter.
For instance, Korff and Brown: “Human rights were effective ignored, apart from the inclusion in the Agreement of vague and ineffective ‘without prejudice’ clauses that fail to redress the balance, and are little more than fig-leaves.”
See also TACD.