Rainer Wieland, Vice President of the European Parliament, has decided not to release the legal service’s opinion on ACTA (letter 14 March 2012, pdf). With this decision he confirms the decision taken earlier by the Secretary General, the FFII then received a blacked out version (picture above). According to the Vice President, the EU is now under certain obligations concerning due and successful ratification of ACTA. Publication of legal opinions would create a serious risk that the ratification procedure launched by the contracting partners of the EU will be jeopardised.
On 19 December 2011 the Legal Affairs Committee coordinators had decided to release the opinion. According to Mr Wieland, the coordinators were not competent to do this.
“Moreover, it has to be underlined that the signing of ACTA by the Union in Tokyo on 26 January 2012 entails certain legal obligations for the Union vis-á-vis its contracting partners. Indeed, it follows from international law that once an international agreement has been signed, the contracting parties are by law expected to refrain from any action which would defeat the object and purpose of the agreement (Article 18 of Vienna Convention on the Law of the Treaties). Moreover, the signatories undertake to start the ratification process. Therefore, the Union is now under certain obligations concerning due and successful ratification of ACTA.”
That seems a somewhat wild statement. Under art 18 VCLT “A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; (..)”
Since the Council signed ACTA, the Council can not stimulate counterfeiting, fair enough. But the Council can still decide ACTA is a bad idea and inform the negotiating partners. And the Parliament is fully free to give consent or not. There is no certain obligation concerning “successful ratification”.
In Parliament, there are two forces that want to keep the legal opinion secret: the legal service, which consistently overlooked known issues, and proponents of ACTA, like International Trade Committee Chair Mr Moreira.
Mr Wieland apparently agrees with these two limited interests, while the Parliament has a much bigger interest: ensuring the biggest possible freedom to take decisions. But Mr Wieland rather invents a “certain obligation concerning due and successful ratification of ACTA”. Mr Wieland sacrifices the Parliament’s broader interest for limited interests. He happily incapacitates the Parliament. Mr Wieland’s decision to use article 18 VCLT to keep the legal service’s opinions on ACTA secret is incomprehensible and detrimental for the Parliament.
On 13 March 2012, Legal Affairs Chair Mr Lehne defended the release of the opinion, stating in a letter (pdf) to the Chair of the Conference of Chairs that the Legal Affairs Committee “was merely applying the general rule, which is that there is an obligation to disclose the opinions of the legal service relating to a legislative process”.
Mr Wieland, in his 14 March 2012 letter:
“As to- your allegation that the coordinators of the Legal Affairs committee had decided to disclose the legal opinion I have to inform you that contrary to your allegations, no decision exists to fully disclose document SJ-661/11 which has been formally adopted by any competent political body of the European Parliament.
Moreover, according to Article 192 of Parliaments Rules of Procedure, the coordinators can only decide in the case of explicit delegation by the Committee. In the absence of such a delegation, they may only adopt recommendations requiring formal ex-post approval which had not taken place in the matter under consideration. Indeed, the adopted minutes of the Legal Affairs Committee meeting of 19-20 December 2011 do not record any decision by delegation on the recommendation to which you refer; neither has any approval ex-post for a coordinators’ recommendation been referred back to the Committee members.”
But the decision was recorded… in the separate coordinators’ minutes. The secretariat sent these minutes to the Legal Affairs Committee Members. As far as we can know, no Committee Member objected against the decision.
And the next day the Legal Affairs Committee publicly discussed the opinion. Members welcomed the publication, no Member protested. The mood was cheerful, I was told.
It is disheartening to see our 500 million people parliament defend secrecy of legal opinions. As Mr Lehne formulated it in his straightforward letter : they are not sacrosanct.