Today the FFII sent an open letter to the President of the Court of Justice of the European Union, Mr Vassilios Skouris. In the letter the FFII asks the Court to reconsider the Court’s rules on amicus curiae briefs in opinion procedures and accept amicus curiae briefs in the ACTA referral.
Open letter to the President of the Court of Justice of the European Union,
Mr Vassilios Skouris
22 November 2012
Dear Mr Vassilios Skouris,
We are writing to ask you to reconsider the Court’s rules on amicus curiae briefs in opinion procedures.
The European Commission has asked the Court: “Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union?”
On 13 November 2012, the Foundation for a Free Information Infrastructure (FFII) submitted an amicus curiae brief regarding this referral to the Court. A few hours later, the Registry of the Court answered: “In reply to your e-mail, I must inform you that only the Member States, the European Parliament, the Council and the European Commission may participate in the Opinion procedure and submit written statements. The Court does not accept amicus curiae briefs from third parties.”
We find the Court’s refusal to accept amicus curiae briefs in opinion procedures which concern human rights problematic.
In 1994, the Court ruled in an opinion procedure that the Community and its member states were jointly competent to conclude the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS agreement caused serious human rights issues, especially access to medicine problems, which still have not been solved. Since the TRIPS agreement, new global intellectual property rights related challenges emerged, such as climate change and Internet governance. Understandably, ACTA, a TRIPS plus agreement, with an Internet section, without an environmental impact assessment, and negotiated in secrecy, met with distrust. Worldwide, citizens have voiced many concerns over ACTA.
The ACTA referral explicitly concerns human rights. A decision on citizens’ rights, without hearing citizens, creates a real risk of overlooking essential information. An “about the people, without the people” approach may undermine the credibility of the Court’s opinion.
In the past, opinion procedures regarded the question whether the Community / Union was competent to conclude an agreement. In December 2009, with the entry into force of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union was given binding legal effect equal to the Treaties. Opinion procedures can also regard, as in the ACTA case, human rights. The entry into force of the Lisbon Treaty could have been a moment to reconsider the Court’s rules on amicus curiae briefs.
Courts have allowed amicus curiae interventions for millenia. The Court allows them in some disputes. The European Court of Human Rights allows them (with the permission of the court), and regularly does accept them.
The Court is a strong defender of taking decisions as openly as possible and as closely as possible to the citizen, for instance in the Turco case. The Court’s refusal to accept amicus curiae briefs in opinion procedures does not seem in line with article 1 Treaty on European Union, the Court’s decisions and the Guiding principles on human rights impact assessments of trade and investment agreements. 
The EU has an obligation to respect, protect and fulfil human rights, and it must desist from acts and omissions that create a real risk of nullifying or impairing these rights. Therefore, an assessment of ACTA has to be as inclusive as possible. In our opinion, the Court should take notice of at least three opinions: Korff and Brown, ARTICLE 19 and FFII. 
The ACTA referral is neither a preliminary ruling, nor a case between Member States, between institutions of the Union or between Member States and institutions of the Union. The Statute of the Court does not seem to be an obstacle to accepting amicus curiae briefs. The Court’s rules of procedure do not mention amicus curiae briefs in opinion procedures, the rules of procedure do not have to be an obstacle either. The EU is obliged to create an enabling environment conducive to the universal fulfilment of human rights.
We respectfully ask the Court to reconsider the Court’s rules on amicus curiae briefs in opinion procedures and accept amicus curiae briefs in the ACTA referral.
On behalf of the Foundation for a Free Information Infrastructure,
Update: The Court answered (31 January 2013):
“The President has instructed me to inform you that, at the
moment, no amendment of the rules governing participation in
Opinion procedures is foreseen. Consequently, it will not be
possible for the Court to accept amicus curiae briefs for the
foreseeable future. Moreover, as the ACTA case was withdrawn on
20 December 2012, your request is now devoid of purpose.”
 Schutter, De, O., (2011), Report of the Special Rapporteur on the right to food, Addendum: Guiding principles on human rights impact assessments of trade and investment agreements, (A/HRC/19/59/Add.5), http://www.ohchr.org/EN/Issues/Food/Pages/Annual.aspx
 Korff, D. and Brown, I., (2011), Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, http://rfc.act-on-acta.eu/fundamental-rights
ARTICLE 19, (2011), European Parliament: Reject Anti-Counterfeiting Trade Agreement (ACTA), http://www.article19.org/resources.php/resource/2901/en/european-parliament:-reject-anti-counterfeiting-trade-agreement-%28acta%29
FFII, (2012), FFII amicus curiae brief on ACTA, http://people.ffii.org/~ante/acta/FFII-ACTA-amicus-brief-2012.html