Will the European Parliament Public Health committee formulate an opinion on ACTA?

As things stand now, the European Parliament committee on Environment, Public Health and Food Safety will not formulate an opinion on ACTA. Despite all the analysis work done on the effects ACTA will have on access to medicine, and despite health groups informed the Parliament, no Member of Parliament has asked the committee to formulate one.

It seems that there is not much awareness or interest in this committee in ACTA. The window of opportunity to get the committee to formulate an opinion is closing fast. Coming week, a very last attempt can be made.

This weekend, and the first days of next week, health groups have the last possibility to contact the committee members.

Recent analysis

Oxfam released a statement regarding ACTA and Public Health: “ACTA will undoubtedly impact access to affordable medicines in the EU and other signatories by curbing generic competition. There are great concerns that ACTA’s impact will extend beyond those countries that initially sign the Agreement, potentially undermining access for millions of patients in developing countries who depend on affordable, quality generics.”

Public Citizen raised concerns that the purported benefits of ACTA for public safety would be slim at best. Meanwhile, ACTA’s opportunity cost for more effective measures against unsafe products could be significant. Further, ACTA may impose direct costs on public health, by creating uncertainty and financial disincentives for the shipping of generic medicines. Public Citizen strongly advises a deeper and more considered legal review of ACTA.

The Greens / EFA group commissioned a study on ACTA and Access to Medicines. This study by Sean Flynn with Bijan Madhani concludes that ACTA increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions for those relying on intellectual property limitations and exceptions to access markets, including the suppliers of legitimate generic medicines. This, in turn, is likely to make affordable medicines more scarce and dear in many countries.

Green technology

An FFII analysis shows ACTA’s heightened measures may hinder development and availability of medical equipment, diagnostic methods and instruments; will restrict government flexibility, impede innovation and slow the development and diffusion of green technology.

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Dutch parliament refuses ACTA secrecy

On the same day that the European Parliament had its first secret meeting on ACTA (Anti-Counterfeiting Trade Agreement), the Dutch parliament decided it will not take ACTA into consideration unless all ACTA negotiation texts are published.

A few weeks ago, the Dutch House of Representatives’ committee of Economic Affairs, Agriculture and Innovation requested the ACTA negotiation texts (the earlier versions of ACTA). The minister of Economic Affairs, Agriculture and Innovation, Maxime Verhagen, sent the texts to parliament, adding a non disclosure obligation. In debates, Members of Parliament may not refer to the documents, nor quote from them.

Sunday, Bits of Freedom sent a letter to the committee, asking the committee not to accept the secrecy.

Committee member Kees Verhoeven (D66) proposed a message from the committee to the minister that no substantive treatment of any ACTA document can be made without publication of all relevant documents and above all that the committee can discuss all documents in public. According to experts, the treaty has major implications for Dutch legislation (eg on copyright and Internet freedoms) and the House can’t at the moment consult experts nor can it inform the public about ACTA’s consequences, since ACTA is partly confidential. For this reason, the committee also requests the minister not to take irreversible steps, neither in Europe and nor in the Netherlands, in terms of ACTA. And towards the commission itself, the proposal to temporarily withdraw all ACTA related documents from the agenda until the minister discloses all documents.

Bits of Freedom reports a majority in the Dutch House of Representatives (D66, PVV, GroenLinks, SP and PvdA) adopted the proposal.

Update: December 13, the PVV changed opinion, a plenary motion did not get a majority.

Meanwhile in Brussels, the European Parliament International Trade committee (INTA) held a highly controversial in-camera meeting to learn what the legal service of the European Parliament thinks of ACTA.

On 9 November, the FFII had send an open letter to the Chairman of the Committee on International Trade (INTA), in which the FFII objected to the planned in-camera meeting on the 23th. On 12 November the INTA chairman defended the secrecy in a letter to the FFII.

7 civil society groups asked for European Parliament transparency on ACTA on the 17th. On Friday the 18th, the Parliament refused to disclose the legal service’s opinion on ACTA, “disclosure would undermine the protection of the public interest as regards international relations”.

On Sunday, the FFII filed a confirmatory application for the legal service’s opinion on ACTA. According to the FFII, the argument that disclosure of the opinion would undermine international relations is totally overstretched. The Parliament’s second reason violates the European Court of Justice case law (Turco case), and the third argument lacks substance.

On Monday 21st, sources in Parliament reported the meeting was postponed. But on Wednesday the 23th, the meeting was on.

Henrik Alexandersson, assistant to Christian Engstrom, reports on his blog:

- Controversial INTA meeting on ACTA held in camera today 23 November despite protests from Civil Society.
- Previous decision to postpone the meeting annulled yesterday night by INTA Coordinators.
- Vote on holding the meeting in public was denied.

After 4 European Parliament resolutions asking for ACTA transparency, the Parliament now took the decision to keep the legal service’s opinion confidential. And to meet in-camera.

This whole show will be repeated soon: the Legal Affairs Committee asked for a legal service’s opinion as well.

A partly secret ratification process… How deep do you want to sink?

The European Parliament should take a good look at the Dutch Parliament’s example.

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“No impact assessment” is the new impact assessment

ACTA would be considered by the European Parliament. Now a simple fact gets openly admitted:

“IMPACT ASSESSMENT: no impact assessment was carried out.”

and further the Commission claims without any evidence:

“At the same time, ACTA is a balanced agreement, because it fully respects the rights of citizens and the concerns of important stakeholders such as consumers, internet providers and partners in developing countries.”

Don’t you agree that is contradictory? Either you assess the impact or you don’t.

Would the missing Impact Assessment weakness be a honey pot for MEPs, like lack of transparency during the negotiations? We know very well, a missing Impact Assessment makes all MEPs complain. Still the Impact Assessment issue distracts from more rotten provisions under the hood.

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Confirmatory application for legal service’s opinion on ACTA

Today I refiled a confirmatory application for the European Parliament legal service’s opinion on ACTA.

See also: http://acta.ffii.org/?p=904

Dear Mr Welle,

On 17 November, I filed a confirmatory application for A12541 – legal service’s opinion on ACTA. Apparently our letters crossed. Now that I received your letter, I will update my confirmatory application below.

In your letter, you give three reasons for not providing access to major parts of the legal service’s opinion. I will address your arguments and provide an overriding public interest in disclosure of this document.

= First reason

“Firstly, pursuant to Article 4(1)(a) third indent of Regulation (EC) No. 1049/2001, ‘The Institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards international relations’. The legal opinion under consideration has been drawn up as advice for a committee of the European Parliament in the context of the EU ratification process of the Anti-Counterfeiting Trade Agreement (ACTA).

Important trading partners of the EU, such as the United States, Canada, Japan, Korea and Switzerland are contracting parties to the ACTA agreement. Disclosure of the parts of the legal opinion under consideration dealing with questions 1, 2 and 3 would seriously interfere with the complex ratification procedures of the ACTA agreement and the EU’s relations with the other contracting parties, as it might prejudice the ratification procedures by these countries.”

If this argument would be true, it would be true for all documents on ACTA, including the already published INTA study, the upcoming draft committee opinions, (minutes of) committee meetings, committee opinions, draft INTA report, INTA report, draft resolution on ACTA, (minutes of) plenary meetings and even the resolution on ACTA, once adopted by plenary. And let’s not forget any public statement by Commission, Council, and Members of Parliament.

The Parliament suggests to suspend democracy? Basically, this argument is unrelated to the legal service’s opinion. It is an argument against open societies, frank and free discussions. So this argument fails against providing access to the legal service’s opinion – since, if taken seriously, it would kill democracy.

There are already many academic opinions on ACTA. A sound legal service’s opinion can hardly depart from these. The academic opinions did not prejudice the ratification processes, they made them richer. Publication of the legal service’s opinion will do this too.

The negotiations are over. there is no confidentiality agreement for the ratification process. The ACTA text is published. Everyone can now analyse it. Finally, discussions can be free and informed.

The biggest proponent of secrecy, the United States government, will not ask Congress to ratify ACTA. It is impossible to prejudice the ratification process in the US – there isn’t any. There may be more partners without a ratification process.

The countries with a ratification process are self confident democracies, like Canada. Or they have a ruler that is self confident.

The Congressional Research Service of the Library of Congress published most of its report on ACTA. This does not prejudice the ratification processes in other countries.

The Mexican parliament already decided not to ratify ACTA, documents are available. This does not prejudice the ratification processes in other countries.

The ratification process isn’t complex. Committees will formulate opinions and plenary will vote. For a parliament, this is everyday business.

The INTA committee questions are specific and regard the EU context, they will probably not influence, and most certainly not prejudice, other ratification processes.

There are other ratification processes in parallel. They may influence each other. More information only makes the ratification process richer, better informed. On a daily basis, parliaments cope with a world full of information. Information does not prejudice decision making processes. Does the Parliament suggest to abolish the freedom of the press?

The Parliament uses the formulation “might prejudice”, a weak formulation. The Parliament does in no way make this weak statement credible.

The Parliament fails to make the point that disclosure would “seriously interfere”.

The Parliament often adopts resolutions dealing with the rest of the world. The Parliament is a proud parliament, expressing strong opinions. For instance, the Parliament recently adopted a resolution on the United States Stop Online Piracy Act (SOPA). This was a direct and official interference with an other country’s law making process. Which is much stronger than the publication of a legal service’s opinion on specific EU legal matters.

The Parliament isn’t shy, is not afraid its actions undermine the protection of the public interest as regards international relations. Why then try this argument on European civilians? This is clearly a case of selective over anxiety.

The Parliament easily takes on the world, but is afraid of its own citizens.

This first reason is totally overstretched.

= Second reason

“Secondly, under Article 4(2) second indent of Regulation (EC) No.1049/2001, ‘The Institutions shall refuse access to a document where disclosure would undermine the protection of legal advice’. The process of legal advice provided by the Legal Service to political bodies of the European Parliament in the context of the ongoing ratification process of ACTA has not been completed.”

While the process of legal advice provided by the Legal Service has not been completed, this document is ready. The European Court of Justice Turco case, which regarded a legal opinion, can be fully applied.

Turco case 45: “In that respect, it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming, as noted in recital 2 of the preamble to Regulation No 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system.”

Waiting with the release of the document only hampers citizens in participating “more closely in the decision-making process”. While publication would result in “the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system”. It is amazing the Parliament isn’t interested in this!

ACTA will be binding upon the Union. Transparency is even more important with international agreements than in the case of EU legislation, since EU legislation can be changed afterwards, while the Union can not easily withdraw from international agreements.

Turco case 46: “Those considerations are clearly of particular relevance where the Council is acting in its legislative capacity, as is apparent from recital 6 of the preamble to Regulation No 1049/2001, according to which wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights.”

European citizens want to effectively exercise their democratic rights.

I will provide additional overriding public interest in disclosure below.

= Third reason

“Thirdly, according to the first paragraph of Article 4(3) of Regulation (EC) No. 1049/20001, ‘Access to a document, drawn up by an institution for internal use which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’

So far, the Parliament has not yet taken its final decision on the matter. The procedure for the conclusion of ACTA is still at its very early stage as explained in my reply of 29 September concerning your request A(2011)9722. Following the Commissions proposals of 24/6/2011 [2], INTA Committee requested this legal opinion from the Legal Service but has not yet discussed this matter.”

The Parliament makes the point that the decision has not been taken by the institution. But the Parliament does not substantiate in any way that disclosure would seriously undermine the institution’s decision-making process.

It is the other way around. Disclosure will help the institution’s decision-making process. There will be a deeper, better informed debate in Europe, the Members of Parliament will have better input and feedback. Publication of a legal opinion is of general interest and helps the decision-making process.

Disclosure would strengthen democracy by allowing citizens to scrutinize the document. The possibility for citizens to find out the considerations underpinning the debate is a precondition for the effective exercise of their democratic rights. European citizens want to effectively exercise their democratic rights – and this will help the decision-making process.

I will provide additional overriding public interest in disclosure below.

= Overriding public interest in disclosure

Parliament will have to balance the interest to be protected by non-disclosure and public interest in disclosure. While doing this, the Parliament will have to take into account art 103 of its Rules of Procedure: “1. Parliament shall ensure that its activities are conducted with the _utmost transparency_ , in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union.” (emphasis added)

1. ACTA is a matter of life and death

ACTA’s predecessor, the TRIPS agreement, killed millions of people. The world faces major challenges: access to medicine, diffusion of green technology needed to fight climate change, and a balanced Internet governance. While flexibility is essential to solve these major issues, ACTA codifies heightened measures.

“Remember, governance is a big word that includes human rights, freedom of speech, economic transactions on a worldwide basis — it touches everything. It’s everywhere, and that’s why Internet governance is topic A in many corners.” Vincent Cerf, one of the godfathers of the Internet [2]

500 Million Europeans, and billions abroad, are entitled to full transparency.

2. World wide discourse on ACTA

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. [3]

Opinion of European Academics on ACTA: “Contrary to the European Commission’s repeated statements and the European Parliament’s resolution of 24 November 2010, certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level.” They invite “the European institutions, in particular the European Parliament, and the national legislators and governments, to carefully consider the above mentioned points and, as long as significant deviations from the EU acquis or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressed, to withhold consent.”

Health groups pointed out ACTA harms access to medicine. See for instance: Public Citizen on ACTA and access to medicine and Oxfam Statement regarding ACTA and Public Health.

The European Commission’s services comments to the European Academics’ Opinion on ACTA is very weak. In one case, the Commission actually even states it insisted ACTA would go further than current EU legislation. See: FFII: The EU Commission lacks basic reading skills.

A study commissioned by the European Parliament INTA committee evaluated the prior discussion, and concluded that ACTA indeed goes beyond the current EU legislation.

European Parliament INTA study on ACTA: “for those European Parliamentarians for whom conformity with the EU Acquis is sine qua non for granting consent, this study cannot recommend that they provide such consent to ACTA as it now stands.” See also FFII comments on the INTA study.

After that, Douwe Korff and Ian Brown, fundamental rights experts, confirmed ACTA violates a list of fundamental rights.

An academic study by Sean Flynn and Bijan Madhani confirmed ACTA harms access to medicine.

Let’s take one example. In EU law, damages are based on actual loss suffered, including lost profits. ACTA goes beyond actual loss. Suggested retail price damages are higher than actual prejudice. Amount multiplied by suggested retail price may lead to enormous damages, this has a chilling effect on mass digitization projects. ACTA’s damages are also a threat to consumers, for instance, if someone copies a hard disk. A 2 terabyte hard disk can contain 540.000 songs. Copyright holders can claim a euro per song damages multiplied by 540.000 = 540.000 euro. While the actual loss may be zero.

Civil society, prominent academics and the INTA study pointed this out. The INTA study recommends: “Seeking clarification, before ratification of ACTA, from the European Court of Justice that the criteria envisaged by the ACTA for the quantification of the compensatory damages would not amount to a violation of the criterion of “appropriateness of the damage to the actual prejudice suffered” envisaged in the Enforcement of IPRs Directive;”

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.”

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.

ACTA also includes criminal measures. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders; whistle blowers and weblog authors revealing documents in the public interest and remixers and others sharing a file if there is an advantage. This advantage may be indirect, a concept the FFII believes to be too unclear to incorporate in criminal law.

Regarding ACTA’s criminal measures, Korff and Brown conclude: “In our opinion, ACTA, by not including a de minimis exception to its compulsory and draconian enforcement regime, fails to ensure adequate protection of the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, and the right to the peaceful enjoyment of one’s possessions, and thus violates those rights.”

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.

3. 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 that 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 world wide discourse on ACTA. It fears scrutiny.

4. The Parliament’s services are not independent enough

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. [5]

The FFII discovered the missing amendment. After discovery, the FFII alerted the Parliament’s services. At some point, the services agreed this wasn’t correct. But they couldn’t do anything since the rapporteur had taken the decision.

Making a consolidated text is a technical job. But, apparently, in the European Parliament, even this technical job is politicized.

The Parliament’s register and INTA secretariat denied the existence of the INTA coordinators’ minutes four times (see below). The INTA secretariat provided the register with wrong information. The secretariats identify themselves too much with the political process.

The Parliament’s services are not independent enough from the Parliament’s political processes. This compromises the Parliament’s integrity.

5. Publication of legal service’s opinions will, over time, lead to better opinions

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 possibly see the legal service as an oracle – able to provide a text in which everyone sees his opinion confirmed. The formulation “open to interpretation but, on the face of it…” suggests an oracle approach.

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.

Publication of legal service’s opinions will, over time, lead to better opinions.

6. Europeans expect transparency

“3. Calls on the Commission and the Council to grant public and parliamentary access to ACTA negotiation texts and summaries, in accordance with the Treaty and with Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents;”

“4. Calls on the Commission and the Council to engage proactively with ACTA negotiation partners to rule out any further negotiations which are confidential as a matter of course”

“6. Deplores the calculated choice of the parties not to negotiate through well-established international bodies, such as WIPO and WTO, which have established frameworks for public information and consultation;”

European Parliament resolution of 10 March 2010 on the transparency and state of play of the ACTA negotiations, P7_TA(2010)0058 (2010) [6]

7. 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,

- on 21 June 2011, the coordinators of the INTA committee decided to ask the Parliament’s legal service an opinion on ACTA. [7]

- 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, [8]

- the legal service keeps its opinion confidential,

- the Committee on International Trade has on its agenda for 23 November a presentation of the legal opinion on ACTA by the EP Legal Service. This presentation will take place in camera.

The secrecy has to stop now. The utmost transparency regime necessitates that the Parliament publishes the legal service’s opinion prior to the INTA committee meeting.

Yours sincerely,

Ante Wessels

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

[2] http://venturebeat.com/2011/11/14/vint-cerf/

[3] 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

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

[5] http://acta.ffii.org/?p=767

[6] http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0058+0+DOC+XML+V0//EN&language=EN.

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

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

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A partly secret ratification process… How deep do you want to sink?

The European Parliament partly released the legal service’s opinion on ACTA, but left out the analysis on ACTA. Why?

“Important trading partners of the EU, such as the United States, Canada, Japan, Korea and Switzerland are contracting parties to the ACTA agreement. Disclosure of the parts of the legal opinion under consideration dealing with questions 1, 2 and 3 would seriously interfere with the complex ratification procedures of the ACTA agreement and the EU’s relations with the other contracting parties, as it might prejudice the ratification procedures by these countries.”

Really. The ACTA text is published. Everyone can now analyse it. Evidently, the analysis may show ACTA is very bad. That would jeopardize the ratification process – deservedly so. That is all in the game in a democracy. But the European Parliament is not interested in democracy, apparently.

A partly secret ratification process… How deep do you want to sink?

See also: Confirmatory application for legal service’s opinion on ACTA (Updated)

In related news, today it became clear there is a parallel secret track: the Legal Affairs committee also asked for an opinion.

Update: On 20 November I requested the minutes of the Legal Affairs Coordinators meetings dealing with ACTA, the communication between the Legal Affairs committee (Chair) and the legal service and this second legal service’s opinion on ACTA, and any other legal services’s opinions on ACTA, as soon as it is (they are) available.

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7 civil society groups ask for European Parliament transparency on ACTA

From: Raegan MacDonald
Sent: 17 November 2011 10:43
Subject: Need for INTA Transparency on ACTA

Dear INTA Committee Member,

Please find attached and below a letter from civil society — including digital rights, access to medicines, free software and human rights organisations — regarding the INTA meeting on 23 November, at which an unpublished Opinion of the European Parliament Legal Service on ACTA will be discussed in-camera.

I am happy to discuss this particular meeting and the ACTA process more generally, so please do not hesitate to contact me directly at [TELEPHONE NUMBER] or by email at [EMAIL ADDRESS].

Best regards,
-Raegan MacDonald

——————-

Dear Members of the Committee on International Trade,

The undersigned signatories of this letter are a group of international civil society organisations. We are extremely concerned and disappointed by the INTA Committee’s repeated insistence on keeping the deliberations around Anti-Counterfeiting Trade Agreement (ACTA) hidden from the public.

According to your Committee’s website,1 there will be a meeting on 23 November at 09h00 at which an unpublished Opinion of the European Parliament Legal Service on ACTA will be discussed, in-camera. This lack of transparency is a long way from the legitimate expectations of citizens, in light of how the Parliament acted in the past. The current non-transparent approach is very different from the March 2010 position taken by the European Parliament which called on the Commission to “immediately make all documents related to the ongoing international negotiations on ACTA publicly available.”

This lack of transparency around a trade agreement which would undoubtedly affect all European citizens is in contravention with the guidance provided by Article 1 of the Treaty of the European Union. Given the implications of this plurilateral agreement to fundamental rights, international trade, access to medicines, innovation, and the integrity of the global internet,2 these conversations cannot be hidden from the public. In light of the Turco Case3 and the Committee’s obligations under Article 15 of the TFEU, we strongly object to this discussion being held in-camera.

As a first step to creating greater transparency around discussions and the eventual consent procedure on ACTA, the signatories of this letter urge the INTA Committee to make the meeting where the Legal Service Opinion on ACTA will be discussed open to the public.

Access
European Digital Rights (EDRi)
Foundation for a Free Information Infrastructure (FFII)
Free Software Foundation Europe (FSFE)
Health GAP (Global Access Project)
Oxfam
Transatlantic Consumer Dialogue (TACD)

1 http://www.europarl.europa.eu/activities/committees/calendarCom.do?language=EN&body=INTA
2 https://www.accessnow.org/policy-activism/press-blog/access-acta-overview-anti-counterfeiting-trade-agreement
3 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0039:EN:HTML

——————-

Source: http://lists.act-on-acta.eu/pipermail/hub/2011-November/000058.html

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INTA chairman defends secrecy

On 9 November we sent the Chairman of the European Parliament Committee on International Trade (INTA), Mr Moreira, an open letter in which we protested against an INTA meeting behind closed doors on ACTA. On 10 November Mr Moreira replied.

Below you will find his letter and our reply. Mr Moreira defends the secrecy: the document is, for the time being, confidential. We maintain that secrecy is not compatible with “utmost transparency” (art 103 European Parliament Rules of Procedure).

Mr Moreira mentions a workshop on ACTA planned for March 2012 in the European Parliament, “which will provide yet another public forum to express different views on its various aspects”.

In our 9 November letter we accused the INTA coordinators and secretariat of taking illegal actions. Mr Moreira does not deny the accusations.

10 November 2011:

Dear Mr Wessels,

Thank you for your open letter. However, openness would entail including all the addressees in an open copy, enabling the reply to be sent to all of them. Unfortunately, that is not the case.

As regards, the contents of your letter, I believe there are clarifications that need to be made.

Firstly, the Committee on International Trade has on its agenda for 23 November a presentation of the legal opinion on ACTA by the EP Legal Service. This is not to be confused with an exchange of views on the ACTA file itself, which will certainly be conducted in public.

Secondly, there is a workshop on ACTA planned for March 2012 in the EP, which will provide yet another public forum to express different views on its various aspects.

Thirdly, the opinion of the Legal Service is, for the time being, a confidential document; therefore its presentation is foreseen to take place in an “in camera” part of the Committee meeting.

Fourthly, as to the question whether there is an overriding public interest in disclosure of the opinion under Regulation (EC) No. 1049/2001: under legislation in force and related jurisprudence, it is for the institution concerned to balance the interest to be protected by non-disclosure and public interest in disclosure.

Yours sincerely,

Vital Moreira

12 November 2011:

Dear Mr Moreira,

We would like to kindly thank you for your answer to our letter.

We agree that the Parliament will have to balance the interest to be protected by non-disclosure and public interest in disclosure. While doing this, the Parliament will have to take into account art 103 of its Rules of Procedure: “1. Parliament shall ensure that its activities are conducted with the utmost transparency, in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union.” (emphasis added)

We believe that the utmost transparency regime necessitates that the Parliament publishes the legal service’s opinion prior to the INTA committee meeting.

Our letter was also distributed by way of our press release mailing list. For reasons of privacy, we can not give you the email addresses. We will publish your letter at our blog, http://acta.ffii.org and will give it widespread distribution.

Your sincerely,

Ante Wessels

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FFII objects to secret INTA committee meeting on ACTA

(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/

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European Parliament releases “nonexistent” coordinators’ minutes on ACTA

The European Parliament’s register released the International Trade (INTA) committee’s coordinators’ minutes on ACTA (Anti-Counterfeiting Trade Agreement). Prior to the release, the Parliament’s services denied the existence of these minutes four times. Only after the FFII provided proof that the documents do exist, the Parliament released them. The minutes document illegal decisions.

On 21 June 2011, the coordinators of the INTA committee decided to ask the Parliament’s legal service an opinion on ACTA. (pdf) 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, not take them.

The INTA committee’s Chairman, Mr Moreira, sent a letter to the legal service. In the letter, he left out a question on safeguards against disproportional criminalisation. While known in Parliament, no Member took action to solve this.

On 8 July, the FFII requested both the Chairman’s letter and the coordinators’ minutes. The Parliament’s services denied the existence of the minutes four times.

On Friday 23 September, Member of Parliament Carl Schlyter (Greens / EFA) wrote a letter to the Chairman of the INTA committee about the missing question. He referred to the coordinators’ minutes and mentioned the file name. The INTA Chairman sent a second letter to the legal service. (pdf)

On 5 October, in an email to the INTA committee’s secretariat, the FFII referred to MEP Schlyter’s letter, and argued that since the ACTA text had already been published, the discussion should have taken place in public. The FFII also stated that EU law does not provide a possibility to deny or obfuscate the existence of documents. The FFII urged the secretariats to record all existing documents in one of the EP document management systems, so that the register can provide correct information from the start.

The FFII added: “The conclusion seems justified that the European Parliament violated the Rules of Procedure, the Treaties and the Charter of Fundamental Rights of the European Union.”

On 25 October, the register released the minutes.

The legal service’s opinion on ACTA is ready, but confidential. The confidentiality seems a violation of the European Court of Justice case law, especially the Turco case.

The FFII requested the legal service’s opinion on ACTA. A better solution may be to withdraw the opinion, since it is based on an illegal decision. The INTA committee can then ask, after a public discussion, for a public legal service’s opinion on ACTA. 500 Million Europeans, and billions abroad, are entitled to full transparency.

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No fair use in ACTA

When the European Parliament adopted its position on the proposed EU draft directive on criminal sanctions they also included the following safeguards, a fair use provision.

Member States shall ensure that the fair use of a protected work, including such use by reproduction in copies or audio or by any other means, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, does not constitute a criminal offence.

The MEPs also amended the proposal from the Commission on the matter of parallel importation:

Criminal sanctions shall not be applied in cases of parallel importation of original goods which have been marketed with the agreement of the right-holder in a country outside the European Union.

As announced in Official Journal C 252 of 18 September 2010 the European Commission decided to withdraw their proposal for a Directive on the criminal enforcement of intellectual property rights because member states didn’t want to adopt it. In particular the Dutch parliament notified the Commissioner Frattini that the EU lacks competence to adopt these measures. Criminal sanctions for enforcement these rights therefore did not become part of the EU acquis.

ACTA provides for criminal sanctions but does not include a “fair use” provision.

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