FFII objects to secret INTA committee meeting on ACTA

November 9, 2011
By Ante

(See also: press release)

Open letter
to: The Chairman of the European Parliament Committee on International Trade (INTA),

Dear Mr Moreira,

According to the agenda, the Committee on International Trade will discuss ACTA (Anti-Counterfeiting Trade Agreement) behind closed doors on 23 November. [1] We object to this discussion being held behind closed doors. Since the publication of the ACTA text, discussions have to take place in public.

ACTA’s predecessor, the TRIPS agreement, killed millions of people. 500 Million Europeans, and billions abroad, are entitled to full transparency.

On 23 November the INTA committee will discuss the confidential European Parliament legal service’s opinion on ACTA. There is an overriding public interest in disclosure of this document (compare European Court of Justice Turco case). Prior to the meeting, the opinion should be released in a timely manner. The committee can then discuss the opinion in public.

The legal service’s opinion goes against the academic communis opinio (see below). It fails to notice that ACTA’s damages beyond actual loss upset millennia of legal tradition and fails to notice violations of fundamental human rights. It does not provide a public justification.

After all the discussion in public on ACTA, in particular after the release of the final text, it is hard, or even impossible, to conclude that ACTA does not go beyond the current EU legislation and does not violate fundamental rights. To convincingly state that ACTA stays in line with current EU legislation and fundamental rights, one has to address the prior findings, eliminate the doubts, and do this in public. The legal service fails to comply with this standard. We suggest to withdraw the legal service’s opinion.

= Prior discussion

Prior to the legal service’s opinion, civil society and prominent academics analysed ACTA and found that ACTA goes beyond the current EU legislation and violates fundamental rights. Health groups pointed out ACTA harms access to medicine. The Commission’s response to the critique was very weak. In one case, the Commission actually even states it insisted ACTA would go further than current EU legislation. A study commissioned by the INTA committee evaluated the prior discussion, and concluded that ACTA indeed goes beyond the current EU legislation. After that, fundamental rights experts confirmed ACTA violates a list of fundamental rights. An academic study confirmed ACTA harms access to medicine. [2]

Let’s take one example. In EU law, damages are based on actual loss suffered, including lost profits. ACTA goes beyond actual loss. Civil society, prominent academics and the INTA study pointed this out.

Korff and Brown, fundamental rights experts, conclude: “In our opinion, here too ACTA is deficient: without express clarification to the effect that damages awarded to right holders must be a reasonable reflection of actual loss, equitably assessed by a court (rather than an exaggerated assessment based on an unchallengeable but rigged formula), the Agreement violates both the right to property and the right to a fair (civil) trial of the defendants.” [3]

ACTA’s damages beyond actual loss upset millennia of legal tradition. The decision to do this, is a grave decision. It should not be taken lightly, nor should the importance and the detrimental effects be obfuscated. Even, since the decision violates fundamental human rights, it can not be taken.

= The legal service’s opinion

According to a European Digital Rights initiative publication, in response to the question about whether ACTA is in line with existing EU legal provisions, the legal service explains that the text is open to interpretation but, on the face of it, the agreement appears to be in line with current EU law. [4]

This is rather amazing. The legal service goes against the academic communis opinio, it fails to notice that ACTA’s damages beyond actual loss upset millennia of legal tradition and fails to notice violations of fundamental human rights.

Reports on the opinion indicate the legal service did not address the prior findings, nor did it eliminate the doubts. The opinion certainly isn’t public. The legal service shows contempt for the European discourse on ACTA. It seems to fear scrutiny.

There is an overriding public interest in disclosure of this document (compare European Court of Justice Turco case). [5]

= The legal service is the Parliament’s house lawyer

The legal service is the Parliament’s house lawyer. Its task is to defend the Parliament’s positions in court. The legal service is not an impartial organisation. It is not an independent court. Before the legal service’s opinion was ready, Members of Parliament already expressed their expectation that the opinion would state that ACTA is in line with the current EU legislation – seen the Academics’ Opinion and INTA’s own study, a remarkable expectation. These Members, and the legal service, did not avoid the appearance that the legal service delivered what was asked for. Only publication of the opinion may restore the Parliament’s credibility.

= Illegal request

On 21 June 2011, the coordinators of the INTA committee decided to ask the Parliament’s legal service an opinion on ACTA. [6] This decision was illegal for two reasons. First, the ACTA text had already been published, the discussion should have taken place in public. Second, coordinators can prepare decisions, but can not take them.

Withdrawing the opinion may provide the best way out. The INTA committee can then ask, after a public discussion, for a public legal service’s opinion on ACTA, which has to take into account the prior discourse on ACTA. Asking the European Court of Justice an opinion on ACTA is a better option.

= A cultus of secrecy

In violation of the Treaties, the INTA committee and legal service cultivate secrecy:

- on 13 July 2010, the coordinators of the INTA committee decided to commission an external study on the impact of ACTA on access to medicines,

- on 25 October 2010, the coordinators decided to convert the study on “Impact of ACTA on Access to medicines (AVC)” into a fully fledged ACTA Impact Assessment,

- we already mentioned the coordinators’ decision to ask the Parliament’s legal service an opinion on ACTA,

- all these decisions were illegal for two reasons. First, the ACTA text had already been published, the discussions should have taken place in public. Second, coordinators can prepare decisions, but can not take them,

- the Parliament’s register and INTA secretariat denied the existence of the INTA coordinators’ minutes four times, [7]

- the legal service keeps its opinion confidential,

- on 23 November 2011, the INTA committee plans another meeting behind closed doors.

Yours sincerely,
on behalf of the Foundation for a Free Infrastructure,

Ante Wessels

This letter on line: http://acta.ffii.org/?p=853

[1] Agenda INTA meeting 23 November:
http://bit.ly/vaHP2z

[2] FFII ACTA analysis:
http://action.ffii.org/acta/Analysis

Opinion of European Academics on ACTA:
http://www.iri.uni-hannover.de/acta-1668.html

European Commission’s services comments to the European Academics’ Opinion on ACTA.
http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147853.pdf

FFII: The EU Commission lacks basic reading skills
http://acta.ffii.org/wordpress/?p=598

European Parliament INTA study on ACTA:
http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf

http://acta.ffii.org/?p=681

Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights, 2011:
http://rfc.act-on-acta.eu/fundamental-rights

Oxfam Statement regarding ACTA and Public Health:
http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

Public Citizen on ACTA and access to medicine:
http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-Affairs-on-the-ACTA.pdf

Sean Flynn and Bijan Madhani, ACTA and Access to Medicines, 2011:
http://rfc.act-on-acta.eu/access-to-medicines

Internet Society:
http://www.isoc.org/internet/issues/acta.shtml

[3] see above: Douwe Korff and Ian Brown, 2011

[4] European Digital Rights initiative:
http://www.edri.org/edrigram/number9.20/acta-ep-legal-service-opinion

[5] http://action.ffii.org/acta/Analysis#Attachment:_The_Turco_case

[6] INTA coordinators’ minutes 21 June 2011 http://people.ffii.org/~ante/acta/INTA-minutes/Coordinators%27s%20minutes%202011%200621.pdf

[7] European Parliament releases “nonexistent” coordinators’ minutes on ACTA http://acta.ffii.org/?p=849
http://people.ffii.org/~ante/acta/INTA-minutes/

5 Responses to FFII objects to secret INTA committee meeting on ACTA

  1. [...] FFII objects to secret INTA committee meeting on ACTA According to the agenda, the Committee on International Trade will discuss ACTA (Anti-Counterfeiting Trade Agreement) behind closed doors on 23 November. [1] We object to this discussion being held behind closed doors. Since the publication of the ACTA text, discussions have to take place in public. [...]

  2. INTA chairman defends secrecy | ACTA on November 12, 2011 at 11:46 am

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  3. anonymous_1--1 on November 15, 2011 at 10:40 am

    acta talks should be public

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