FFII requests proof ACTA’s criminal measures are essential

Brussels, 5 January 2011 — The Foundation for a Free Information Infrastructure (FFII) requests proof that the Anti-Counterfeiting Trade Agreement’s criminal measures are essential. The EU can only harmonise criminal measures if approximation of criminal laws and regulations of its Member States proves essential to ensure the effective implementation of a Union policy. The same is true for harmonisation by way of trade agreement. The FFII also requests documents which discuss the proportionality of the Anti-Counterfeiting Trade Agreement’s criminal measures.

The Anti-Counterfeiting Trade Agreement (ACTA)’s criminal measures criminalise ordinary companies and individuals. ACTA can be used to criminalise newspapers revealing a document, office workers forwarding a file and private downloaders. A whistle blower or weblog author revealing a document in the public interest, may easily be prosecutable, for instance if the webpage contains advertisements. Remixers and others sharing a file are included if there is an advantage. This advantage may be “indirect”, a concept the FFII believes to be too unclear to incorporate in criminal law: it may be fulfilled by others. ACTA is not limited to large scale activity, as claimed earlier by the Commission. There is no de minimis exception either.

FFII analyst Ante Wessels: “The criminal measures are intrusive. The Treaties demand proof that these measures are essential, we want to see this proof. If the measures are essential, the Commission should have negotiated them. If they are not, the EU Commission and Parliament cannot give consent to ACTA including criminal measures.”

The Commission left the Parliament in the dark about the criminal measures, it repeatedly answered questions with: “The relevant provisions of ACTA were negotiated by the rotating EU Presidency on behalf of the EU Member States. Therefore, the Presidency is best placed to respond to this question.”

Ante Wessels: “The Commission is the guardian of the Treaties, it has to take its responsibility and provide proof the measures are essential. Without proof, the EU cannot ratify ACTA’s criminal measures.”


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Will ACTA make China win?

The New York Times writes about China’s policy to promote issuing more patents. “In a recent interview, David J. Kappos, director of the United States Patent and Trademark Office, pointed to the Chinese targets for 2015 and called them ‘mind-blowing numbers.’ “.

In a post called “China joins the patent trolls; wake up America”, John Bennett comments: “If you are behind in the patent race, file like mad and be prepared to litigate.” He adds that this competitive challenge will force the rich developed countries to assess its patent policies.

With ACTA, the industrialised countries try to strengthen their competitive advantage over the emerging economies. The United States is mainly interested in protecting copyright and trade marks. The United States, long time ardent supporter of stronger enforcement, will exclude patents from the scope of ACTA (opt out). This will give the US the freedom to fine tune its patent enforcement regime.

The EU will not exclude patents from the scope of ACTA. China’s patents will hit the EU, and the EU will have no way to fine tune its patent enforcement regime. The EU is making a major strategical mistake.

ACTA’s damages even go beyond current EU law (pdf).

Update: See also Techdirt: China’s Patent Strategy Isn’t About Innovation; It’s An Economic Weapon Against Foreign Companies

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Did the EU Commission secretly initial ACTA?

According to European Parliament sources, the Anti-Counterfeiting Trade Agreement (ACTA) has already been initialed. That would be amazing: normally the initialling of a trade agreement is a PR moment. Take for instance the EU – Korea free trade agreement: “EU Trade Commissioner Catherine Ashton and Korean Trade Minister Kim Jong-hoon have today initialled a free trade agreement (…) Speaking following the initialling in Brussels, Commissioner Ashton said (…)”. The initialling of a trade agreement signifies the closing of negotiations with a stable legal text. Negotiators sign with their initials.

Update: answers

I asked the Commission 11 questions:

The EU is negotiating the Anti-Counterfeiting Trade Agreement (ACTA). The parties published the final text.


1. When will the Commission initial ACTA?

2. Did the Commission already initial ACTA?

If yes:

3. When did the Commission initial ACTA?

4. Which other parties initialed ACTA as well?

5. The initialling of the EU – Korea free trade agreement was a PR moment, why not the initialling of ACTA?

6. Does initialling ACTA fall under the secrecy agreement?

7. Did the Commission initial ACTA including the criminal measures?

8. Did the Commission add negotiator’s notes?

9. Will the parties publish the negotiator’s notes?

10. Did the Presidency initial ACTA as well?

11. Did the Presidency add negotiator’s notes?

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Alternate Reality

Transparency of the Anti-Counterfeiting Trade Agreement was widely criticized. This month leaked US diplomatic cables demonstrated that the EU Council rotating presidencies were highly aware of the lack of transparency and due process. Commissioner Karel De Gucht, however, presents to an MEP his arrogant alternate reality.

.. the Commission has carefully ensured, at every step of the negotiations, respect for Article 15 TFEU [*] in particular by providing regular information to civil society and access to documents on the basis of the relevant legislation.


Since the entry into force of the Treaty of Lisbon, the Commission has ensured that the results of the negotiations are in line with the general principles governing external relations, on the basis of Article 205 TFEU, which in turn refers to Chapter I of Title V of the Treaty on European Union (which includes Article 21 TEU). The Commission participates in the work of the European Commission for Democracy through Law (the “Venice  Commission”) which is a consultative body but fails to see how ACTA would affect this work.

This was the Question:

In the Commission’s view, how does the legislative character of ACTA reflect on obligations under Article 15 TFEU (good governance and participation of civil society), Article 21 TEU (advancement of human rights and fundamental freedoms) and the Venice Convention (promoting democracy through law), in particular in respect of enforcement procedures and so-called ‘cooperative efforts’ to address infringements of intellectual property rights in the digital environment?

As you can see the question of the MEP was not to remind the Commission of its obligations but to ask how the “legislative nature” reflects on these obligations. Apparently adopting legislative measures by confidential trade agreements does not meet standards in a democratic environment where laws are made by Parliament and receive massive review. Apparently Trade Agreements are instruments for trade matters such as tarrifs and quota for imported and exported goods, not international legislation. Commissioner De Gucht himself highlighted the special circumstances of the ACTA process in an interview with Frankfurter Allgemeine Zeitung:

Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten so.
Parliament gets informed about the progress of the negotiations and can say “Yes” or “No” in the end, nothing more. That applied to international negotiations in all states.

Notabene the Commission is not the elected government of a state. But it is the guardian of the Treaty and the democratic principles enshrined in it.

*) Article 15 (ex Article 255 TEC)
1. In order to promote good governance and ensure the participation of civil society, the Union
institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting
on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office
in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices
and agencies, whatever their medium, subject to the principles and the conditions to be defined in
accordance with this paragraph. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.
Each institution, body, office or agency shall ensure that its proceedings are transparent and shall
elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in
accordance with the regulations referred to in the second subparagraph. …

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De Gucht does not answer questions from German MEP

P-8950/10EN Answer given by De Gucht on behalf of the Commission (29.11.2010)

The relevant provisions of ACTA were negotiated by the rotating EU Presidency on behalf of the EU Member States. Therefore, the Presidency is best placed to respond to this question.

However, the Commission notes that its reading of footnote 9 is not that it extends penal responsibility to new infringements, but that it clarifies that infringements which are wilful and on a commercial scale (as already required in the main text of Article 2.14 ACTA) are to be treated as penal infringements also when they take the form of an importation or an exportation.

Question JAN PHILIPP ALBRECHT: ACTA – legality principle (P-8950/2010)

Considering that ACTA art 2.14.1 contains a definition of commercial scale: “For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage” and considering that ACTA footnote 9 says: “Each Party shall treat wilful importation or exportation of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties under this Article. A Party may comply with its obligation relating to exportation and importation of pirated copyright or counterfeit trademark goods by providing for distribution, sale or offer for sale of counterfeit trademark goods or pirated copyright goods on a commercial scale as unlawful activities subject to criminal penalties”;

- Has the Commission assessed the compatibility of the definition of commercial scale in ACTA with the requirements of the legality principle of criminal law?

- Does the Commission deem it appropriate to extend criminal responsibility in a footnote as is done in footnote 9?


The Commission is the guardian of the Treaties and oversees the respect for fundamental rights. It needs to have a position on the matter.

Posted in Criminal, EU | 2 Comments

A Vienna loophole of ACTA for the United States

Question for written answer to the Commission, Françoise Castex (S&D): ACTA

Article 1.2 of the proposed Anti-Counterfeiting Trade Agreement (ACTA) states the following: ‘Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.’

At recent meetings in Washington the US Trade Representative has told other US agencies, NGOs and legislators that ACTA is not binding and that its Article 1.2 allows for complete flexibility in respect of any US legal provision that might contradict ACTA.

Indeed, Articles 2.2 and 2.X of ACTA, which deal with damages and injunctions respectively, are at odds with the ‘US Affordable Care Act’, which places clear limits on remedies for infringements of patents on medicines. Nevertheless, the US authorities deny that ACTA requires a change in US law.

Could the Commission clarify to what degree ACTA is a binding or voluntary agreement, given that the US apparently does not believe its laws must be consistent with ACTA? [...]

Commissioner De Gucht on behalf of the Commission (15.12.2010, P-9179/10EN)

The Anti-Counterfeiting Trade Agreement (ACTA) is a binding international agreement on all its parties, as defined and subject to the rules of the Vienna Convention on the Law of Treaties (1969). [...]

Important to know

The USA did not ratify the Vienna Convention on the Law of Treaties.

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De Gucht and his giant ACTA lie

For the past past months Commissioner Karel De Gucht cheated the Members of the European Parliament about the lack of competence of the European Union to negotiate ACTA criminal measures, and overplayed the known fact in Plenary that there is no related Acquis existing. Many Members of Parliament trust De Gucht’s promises made that ACTA fully complies with the Acquis. Compliance with the Acquis was an argument for MEPs like German Daniel Caspary to support the controversial Treaty.

I think it is a good thing that the acquis communautaire remains unchanged.

Now Karel De Gucht is forced to admit that there is no criminal Acquis of the European Union existing and member states have to adapt their law when ACTA gets concluded.

Karel De Gucht answered (P-9179/10EN 15 Dec 2010):

On one area covered by ACTA on which there is no EU acquis, i.e. penal enforcement, it is possible that some Member States may need to adapt domestic legislation to comply with commitments they have undertaken in the negotiation of the ACTA section on penal enforcement. This section was negotiated by the rotating EU Presidency on the behalf of the Member States. However, the Commission wishes to stress that this does not concern EU legislation, since penal enforcement of Intellectual Property Right infringements is an area that is not yet harmonised in the European Union, and is still subject to the domestic legislation of Member States. In other words, there is no “EU acquis” in this area.

The acquis communautaire remains unchanged as there is no European acquis existing. That is an interpretation where you can assume that not all MEPs were able to get the cynical trick.

ACTA Criminal Chapter is like IPRED2 without a role for the European Parliament

What is interesting about the criminal sanctions in ACTA (that he admits effects changes of member states’ criminal laws) is that there is a legal base in the Treaty for harmonization of such criminal sanctions within the EU which would give Parliament much more say than a conclusion of ACTA, namely the “ordinary legislative procedure” for Council and Parliament as envisaged by Article 83(2) TFEU. With the very legal base an EU acquis for criminal sanctions for IPR infringements would then be created.

A pending legal proposal for IPR criminal sanctions from the European Parliament, known as IPRED2, was withdrawn by the Commission recently because member states failed to reach consensus for years. Now ACTA provides for the criminal sanctions but without the safeguards (e.g. Fair Use provision) proposed by the European Parliament and without any say of the European Parliament on the contents of the changes to national laws.

With other word, ACTA circumvents the new Lisbon competences of the European Parliament. The criminal chapter of ACTA corresponds to IPRED2 without a role for the European Parliament, without transparency and is negotiated outside the treaties.

The question remains if it is legally possible to circumvent the Treaties ordinary legislative procedures by trade agreements with third nations, and the European Court of Justice should be asked for an opinion on the matter.

In Frankfurter Allgemeine Commissioner De Gucht explained the anti-democratic trick with trade agreements of legislative nature:

Das Parlament wird über den Fortgang der Verhandlungen informiert und kann dann am Ende “ja” oder “nein” sagen, mehr nicht. Das ist bei internationalen Verhandlungen in allen Staaten so.
Parliament is informed about the progress of the negotiations and may tell in the end “yes” or “no”, nothing more. That common for all international negotiations in all states.

The procedure for the member states to negotiate penal sanctions in absence of an EU Acquis stays obscure. Acoording to rumours criminal sanctions were negotiated by the Council Presidency together with a “Friends of the Presidency” group. To MEP Ska Keller the Commissioner De Gucht explained the procedure in more details (P-9029/2010 30 Nov 2010):

“ACTA addresses issues that are unquestionably exclusive competences of the European Union. Therefore, the Commission needed to seek negotiating authorisation and negotiating directives from the Council in order to negotiate the Agreement. At the time the Commission sought authorisation, a debate took place with Member States as to the conduct of negotiations on certain aspects of the agreement dealing with the enforcement of intellectual property rights through criminal procedures. In April 2008, the Council authorised the Commission to negotiate ACTA, pursuant to the then Article 133 of the EC Treaty (now Article 207 TFEU) and agreed that the rotating Presidency of the EU, on behalf of the Member States, would fully participate in the negotiations on matters falling within Member States competence. Such matters included the type and level of criminal penalties to be applied by ACTA parties for infringements of intellectual property rights and dispositions on penal procedural law, but not provisions on aiding and abetting.”

Have a look at Article 207 TFEU and check for yourself if there is a legal base for negotiating criminal sanctions for IPR infringement with other nations. It casts doubts whether criminal sanctions concern the “commercial aspects of intellectual property”. But apparently criminal measures are negotiated outside a legal base in the treaties by the rotating presidency. Criminal harmonisation within the EU framework would bound by Article 83(2) limits.

A few questions to the European Council members (under the premise that Art 207 is not a sufficient legal base and nations act as souvereign powers):

A. Is criminal harmonisation beyond the EU framework by EU member states, acting as souvereign powers  represented by the rotating EU Presidency, permissable?

  • Is prior harmonisation within the EU framework under Article 83(2) a prerequisite for negotiations beyond the EU framework?
  • How does a delegation of national representation powers to the rotating presidency work?
  • Are negotiations beyond the EU bound by the same limitations and principles as Article 83(2)?
  • Is it possible to mix acquis/EU related and souvereign powers in a single agreement and in the Article 207 environment?

B. If member states failed to agree on the IPRED2 criminal harmonization as presented by the European Parliament because they don’t want EU interference in their diverse national criminal laws why do they presumably agree with ACTA criminal measures? How is the contradiction explained?

C. Is it possible to generally circumvent the European Parliament prerogatives under the Lisbon Treaty, their powers within the “ordinary legislative procedure” by concluding  “Trade Agreements” of legislative nature instead between the Council member states and a nation X. Nation X beeing e.g. Switzerland, Liechtenstein, Norway or the Democratic Republic of Bananas.

Posted in Criminal, Democracy, EU | 6 Comments

Metzger: Criminal sanctions beyond ‘may’ outside Acquis.

Intellectual Property Watch quotes Axel Metzger, University Hannover:

“All criminal sanctions that go beyond ‘may’ clearly are outside of the EU acquis,” Metzger said.

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Beyond Wikileaks: How to get legal access to ACTA documents

In a Guardian interview this week Wikileaks founder Julian Assange stressed the importance of their disclosure of the secret Anti-Counterfeiting Agreement (ACTA). European observers do not have to rely on leaks because public transparency is a right of citizens under the Lisbon treaty.

You can request legal access to ACTA related documents from the Council. Either documents are available through the register or for the confidential ones just fill out a form with your address and mention the requested document numbers. The Council will either enable public access to the documents and sent you a pdf or deny your request and state reasons for that or they sent you a crippled, a redacted version. If your request is refused you can file a confirmatory application and when that is denied again, you can go to court or complain at the EU ombudsman. In the case of ACTA the confidentiality at the Council was so rigid. Many first applications were rejected which is quite unusual. Therefore there are quite some confirmatory requests for public access to ACTA documents in the document archive of the Council, here is a recent confirmatory application:

[Confirmatory application sent by e-mail on 22 November 2010 - 13:39]
Dear Mr Thomsen,
I hereby submit a confirmatory application in case 10/2076-nh/ank, on the following grounds:

I. The European Parliament has now called on the other institutions to allow public access to ACTA documentation on at least four occasions, in resolutions and by a written declaration. It therefore seems a foregone conclusion that there is no justification for assuming a “public interest” in keeping this documentation confidential. The Article 207 procedure is specifically required to abide by the principles set out in Article 21 of the EU Treaty; the public interest must therefore be defined on a democratic basis, and the best way of doing that is through parliament.

II. As you will be aware, criminal provisions for the enforcement of intellectual property rights are not part of the acquis at present.

Where such provisions are needed at European level, the “ordinary legislative procedure” has to be followed, with due regard for the specific conditions of Article 83(2) TFEU, to incorporate criminal sanctions into the acquis.

The Member States would first be required to harmonise criminal enforcement in Europe by European law. Given this “gap” in the acquis, negotiating criminal sanctions in this area with third countries may well be in breach of the Treaties and fails to take account of the European Parliament’s prerogatives. It may be that Article 207 TFEU does not provide a proper legal basis for negotiations of this type with third countries. Legislation on enforcement, especially in criminal matters, goes beyond “commercial aspects of intellectual property” within the meaning of Article 207. Member States are not allowed to “change forum” by bringing in third countries, undermining the European Parliament’s extended powers post Lisbon.

In the European Parliament recently, Trade Commissioner De Gucht claimed that the term acquis applied only to substantive law, as if implementing legislation such as Directive 2004/48/EC were not part of the acquis. He said that the ACTA was “about the enforcement of existing law, and that is why I have repeatedly stipulated that we are not going to change the acquis communautaire. The acquis communautaire is about substantive law and we are not changing that.” In other statements the Trade Directorate confuses the corpus of existing EU law (acquis communautaire) with the question of European treaty options for EU legislation. This curious understanding of the law on the part of the Commission shows the need for scrutiny, for which transparency about the conduct of the negotiations is essential. It is particularly unclear on what legal basis the Council Presidency is conducting negotiations on criminal sanctions.

There is therefore considerable public interest in uncovering any abuse of authority or any Treaty violation in this case. Protecting the public interest in regard to international relations outweighs the institutional interest in concealing the fact that the Presidency does not have the authority to conduct these negotiations. Conducting negotiations without having an adequate basis in the European Treaties is prejudicial to the EU’s international relations and transparency is needed to clarify these practices. The question whether Europe is conducting these negotiations legally can only be answered by looking at the documents.

If there were no proper negotiating remit, this would adversely affect the atmosphere of trust in future negotiations with third countries and hamper open and constructive cooperation.

III. Article 15(1) TFEU places a duty on the institutions to be as open as possible. Article 15(2) applies to the Council and its Presidency. There is no legal basis in the Treaties for withholding information or for concluding confidentiality agreements with third countries. The requirement for openness under Article 15(2) and (3) takes precedence, particularly in legislative matters. These are purely legislative issues, being pursued under the cover of a trade agreement in form, but not in substance. It is clear from the outset that there is no basis in the EU Treaties for holding secret legislative negotiations with third countries. Retrospectively applying Article 4 of Regulation (EC) No 1049/2001 (which has not yet been adjusted to the Lisbon arrangements, by the way) does not make up for the fact that there is no basis in law for keeping these negotiations confidential.

The classification of documents is irrelevant for the purposes of Article 15 of Regulation (EC) No 1049/2001. Furthermore, the Council can always withdraw its negotiating directives and terminate the negotiations if third countries make procedural requests which would prevent the Union from complying with the EU Treaty, in particular rights under Article 15 TFEU.

IV. Apart from genuine trade agreements, it is not usual for international legislative or regulatory dialogue to be kept confidential. It is customary for negotiations to be open in the case of legislative agreements, since disclosure of the entire negotiating history is essential for subsequent interpretation of the law (“historical method of interpretation”). Under Article 25 of the German Basic Law, the general rules of international law form an integral part of federal law and are therefore relevant to the Presidency’s representation of Germany. The principles of Article 21 of the EU Treaty in conjunction with Article 207 TFEU apply.

I would therefore ask you to reconsider your opinion.

Yours sincerely

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Europe’s e-communications providers call on the EC not to modify the acquis

Europe’s e-communications providers call on the European Commission to reflect EP demand for ACTA not to modify the EU acquis – Europe’s leading e-communications service providers welcome the efforts of both the
European Parliament and the Commission to address concerns regarding the potentially negative impact of
the Anti-Counterfeiting Trade Agreement on the EU citizens’ rights and on the existing balance between
IPR enforcement and user’s privacy.

Press release of CableEurope, ETNO, EuroISPA,GSMA

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