With ACTA, manipulation returns to the European Parliament

A few years ago, an amendment making sure that parallel importation was not criminalised in the EU disappeared after it was adopted in the European Parliament. This summer, the Chairman of the International Trade committee (INTA), Mr Vital Moreira, rewrote a question the INTA committee asked the Parliament’s Legal Services regarding ACTA (Anti-Counterfeiting Trade Agreement). The INTA Chairman among others things left out a reference regarding parallel importation. Up until now, no member of the INTA committee questioned the behavior of the INTA Chairman. (See update below.)

While prominent legal experts conclude ACTA is not compatible with EU law, EU Treaties and fundamental rights, MEPs (Members of the Parliament) expect the Legal Services to conclude ACTA is fine. The stakes are high, if the Legal Services Opinion is substandard, civil society groups may file a maladministration complaint against the Legal Services. The credibility of the European Parliament is at stake, while the Union may have to expand its competence to solve the Euro crisis.

On 25 April 2007 the European Parliament rejected criminalisation of parallel importation when it voted on the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (COD 2005/127).

Parallel importation is not counterfeiting, a genuine product is bought and sold. Parallel importation is also important for access to medicine, a matter of life and death.

In the consolidated text the amendment excluding parallel importation from criminalisation, was missing. The amendment was deliberately left out by the rapporteur, MEP Mr Zingaretti, who was responsible for the dossier. Only after Mr Zingaretti left Parliament, the President of the European Parliament decided to restore the amendment that excludes criminalisation of parallel importation. Prior to that, the Parliament had not answered any of the civil society calls to restore democracy.

This summer the coordinators of the INTA committee decided to ask the Parliament’s Legal Services questions on ACTA. In the questions they made a reference to the 25 April 2007 vote. The reference is important since in that vote the Parliament made limitations to criminalisation of infringements of so called intellectual property rights, limitations which are not found in ACTA. The answer to these questions could make clear that ACTA goes beyond the 2007 Opinion of the European Parliament. The Chairman of the INTA committee left out the reference, no Member of the Parliament questioned his behavior.

After we informed Parliament in 2007 an amendment was missing, we met an hostile response. We now see Members again rather defending a colleague than defending democracy and the right to life.

The Foundation for a Free Information Infrastructure (FFII) requested the minutes of the INTA coordinators meeting. The Register of the Parliament denies the existence of these minutes. We have multiple confirmations they do exist. (See update below.) The FFII also noticed the INTA committee took decisions on ACTA which were not recorded. They involve spending of tax money.

According to civil society groups, prominent European academics and an INTA commissioned study, ACTA is not compatible with current EU legislation.

According to civil society groups, prominent European academics and fundamental rights experts, ACTA violates fundamental rights. An other study concludes ACTA increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions against legitimate suppliers of generic medicines. There are also problems with the EU Treaties.

Despite all this research, MEPs expect the Parliament’s Legal Service to conclude that there are no problems with ACTA. The Members expect the Legal Services to compromise its professionalism? As noted above, pressure on the Legal Services may destroy the Parliament’s credibility.

The INTA commissioned study concludes: “There does not therefore appear to be any immediate benefit from ACTA for EU citizens”. Compromising the Parliament’s credibility over ACTA is irresponsible. It is not even penny wise, it certainly is Euro foolish.

Note that both the US and Mexico will not ratify ACTA. The US wants ACTA to be binding upon the EU, while it will not be binding upon the US – another manipulation going on.

Update: MEP Carl Schlyter (Greens / EFA) did question the INTA Chairman (yesterday). Incidentally, the letter also proofs the INTA coordinators’s meetings’s minutes do exist. We now even have a file number: INTA(2011)0621_2 . On multiple occasions the Register misinformed the FFII.

Update 2

The INTA committee secretariat denied the existence of the coordinators’s minutes again on 28 September. Not that smart, since we now know better…

Dear Mr. Wessels,

thank you very much for your e-mail of 17 September in which you are requesting information and documentation regarding our Committee’s
proceedings on the ACTA.

Question 1. “Did the INTA committee take decisions on ACTA in secret? Could you clarify why request for opinion and commissioning the study did not leave any trail? Did the INTA committee discuss ACTA on other occasions, without leaving any trail?”

Answer: To date, the INTA Committee did not take any decision on ACTA. However, the Coordinators of the Committee decided to request a legal opinion of Parliament’s Legal Service and to commission an external study. ACTA was discussed during in-camera Committee meetings and during specific briefings with representatives of the European Commission. Given the nature of these meetings, there is no related, written information or documentation to provide. As you might be aware, the INTA committee meetings are web-streamed, archived and accessible via the European Parliament website. For the ease of reference, please find attached the relevant link:

http://www.europarl.europa.eu/wps-europarl-internet/frd/vod/search-committees?language=en

Question 2. “Can you confirm the Parliament does not possess the Commission’s negotiators’ notes?”

Answer: The negotiators’ notes are included in the Draft Consolidated texts:

http://trade.ec.europa.eu/doclib/docs/2010/april/tradoc_146029.pdf

As announced in the communication by the Register on 22 August 2011, you will receive a reply on all ACTA non public documents in the possession of Parliament as soon as possible.

Question 3. “First, I would like to receive documents regarding the commissioning of the study on ACTA, [...]”

Answer: You have obtained the related three documents on 22 August 2011 from the European Parliament Registry.

Question 4. “Second, I would like to receive documents regarding the request to the Legal Service for an opinion on ACTA,[...]”

Answer: You have obtained Mr. Vital Moreira’s letter to Mr. Christian Pennera, dated 18 July 2011.

Question 5. “As soon as the opinion is available, I would like to receive it as well.”

Answer: The opinion of the Legal Service is not available yet.

Question 6. “Third, I would like to receive the minutes of the INTA Committee meetings, both open and in camera, including the Committee’s coordinators meetings, both open and in camera, which relate to ACTA.”

Answer: You have been informed by the Parliament’s Register reply of 5 August 2011 that there are no detailed minutes of in-camera meetings: When a point on the agenda is treated in camera, along with other points treated publicly, the minutes include only the speakers or the decisions but no mention is made of the discussions relating to items under the confidential procedure, in accordance with Annex VIII.A. point 3 of the Rules of Procedure. They are available on the European Parliament website.

Question 7. “Fourth, I would like to receive all non public ACTA documents in the possession of the INTA committee, including the earlier versions of the ACTA [...]”

Answer: Parliament’s Register informed you on 22 August 2011 that you will receive a separate motivated reply on this request as soon as
possible.

Kind regards,

INTA Secretariat

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