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The #ACTA referral

I've been following the online debate about the Anti-Counterfeiting Trade Agreement (ACTA) with some confusion. I am automatically distrustful of senior officials who tell us that everything is going to be all right; and I have noted with dismay some of the wilder predictions about how the ACTA agreement will result in the police cutting off your internet if they think you have installed μTorrent. The European Parliament has an info page which, typically, concentrates on the Parliament's own role; but it also has its own study (PDF), commissioned from Maastricht, which raises a number of questions about the agreement at least from a procedural point of view. And my old friend Joe McNamee, before the latest news broke, made some serious charges against it.

However, I'm now in a position where I can offer some expertise of my own. The European Commission yesterday decided to refer ACTA to the European Court of Justice for a ruling on "whether ACTA is incompatible – in any way – with Europe’s fundamental rights and freedoms" (there is some dispute about exactly what the question is).

Just to step back a moment and define who the actors are here: the European Commission is the EU's executive, which has fairly strong powers to negotiate for all 27 member states on trade issues but much less on other questions (ACTA involves both of these). The European Court of Justice, based in Luxembourg, is not the same as the European Court of Human Rights, which is based in Strasbourg and is not part of the EU. The ECJ rules on whether actors within the EU have stuck to EU rules; the ECtHR has a remit on human rights which stretches from the Atlantic to Russia and Azerbaijan (the membership of the Council of Europe, a separate organisation). If ACTA were eventually passed and enforced, one could imagine appeals to the Strasbourg ECtHR, but we are far from that point.

As far as I know, there has only been one previous occasion when an envisaged EU treaty was referred to the ECJ, and it also concerned intellectual property. The 2009 draft agreement on European patents was thrown out by the ECJ, not because it curtailed rights and freedoms, but because it would have set up parallel institutions to apply EU law without being themselves subject to it (the details are technical and frankly boring). The ACTA challenge is much more ideological.

The Commission's decision to refer ACTA to the ECJ is, I think, unprecedented - the patents treaty was referred to the ECJ by member states. It is obviously the result of an extraordinary level of grass-roots action and campaigning, which saw the European Parliament rapporteur resign and mass protests in numerous European cities earlier this month. It obviously also indicates that the Commission was so internally divided that it was unable to reach an agreement on the issue. On the one hand, the referral takes the decision out of the democratic process and puts it into the court system; but on the other, it certainly holds up the implementation of ACTA for at least a year, probably two, and will deliver a firm legal decision at the end of the process which will either kill ACTA completely (as the ECJ did with the patent agreement) or will restrict its applicability.

Now for the words of warning. I'm not a lawyer, I'm a political activist; and I have myself been involved with two cases which involved the European Court of Justice, neither of which, frankly, was successful. I have observed that the Court will tend to take a rather protective view of EU treaties and procedures. ACTA opponents who want to influence the court will therefore need to i) identify EU-specific concerns, rather than issues of general human rights and justice, which apply to the agreement, and ii) much more importantly identify someone who can put that particular case before the Court. My suspicion is that the only bodies with locus standi in this procedure will be the EU institutions (the Parliament and the Commission) and the 27 member states. I would recommend that ACTA activists identify friendly member state governments now, and start lobbying them immediately to make sure that their interpretation is laid before the court; and even then it may not work. My contact details are easy to find, and I will be happy to discuss further with interested parties.

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( 5 comments — Leave a comment )
(Anonymous)
Feb. 23rd, 2012 08:19 pm (UTC)
I'm interested by your assessment that

It obviously also indicates that the Commission was so internally divided that it was unable to reach an agreement on the issue.

An alternative hypothesis might be that the elements of the Commission that have been driving this are still wedded to the treaty, wedded to the behind-closed-doors approved-lobbyists-only process that created it, and desperate at the thought that the whole thing (which only scraped through last time) suddenly seems increasingly likely not to get through the EU Parliament.

Reference to the ECJ buys the Commission some time to let the immediate hue-and-cry die down. It also has the potential for the Commission then to be able to turn round and say "look, the ECJ says there's nothing to be scared of" (even if what the ECJ were really saying was "there's nothing structurally fundamentally incompatible with EU legal principles" -- if this is what we really want to do).

There's a difference between something that can be done and something that should be done -- but I could see the Commission trying to elide that difference as far behind the furniture as they can.
nwhyte
Feb. 23rd, 2012 09:01 pm (UTC)
An alternative hypothesis might be that the elements of the Commission that have been driving this are still wedded to the treaty, wedded to the behind-closed-doors approved-lobbyists-only process that created it, and desperate at the thought that the whole thing (which only scraped through last time) suddenly seems increasingly likely not to get through the EU Parliament.

I'm not sure that this is completely right.

European Parliament ratification is a well-understood and oft-repeated political process, and the Commission (like the member states) is generally ready to try and cut a political deal with MEPs, who can be swayed by all manner of considerations. The ECJ, however, is not playing that game, and punting the issue to the Court really does mean that the Commission has lost almost all of its levers of control over the outcome - and the fact that the Commission itself moved the referral means that the Commission has voluntarily relinquished that control.

I agree that parliamentary ratification was looking increasingly fraught, but the procedural position was also becoming further complicated by member state threats to refuse ratification. If the Commission decided that it would be better to get a legal clarification from the court rather than continue fighting a nasty political battle, that indicates to me a certain resignation to the outcome of the court decision, whether it be favourable or not (and also shows the Commission in a relatively good light as guardian of the treaties).

As I said in my original post, this does mean that the channels for lobbying on the outcome have now rather dramatically changed from where they were on Wednesday morning. One can speculate that the pro-ACTA forces within the Commission preferred to go that route; I must say my feeling from having dealt with the Commission on other issues is that they would generally prefer to keep greater political control (the Commission loses ECJ cases often enough to make that a less preferable option).
surliminal
Feb. 23rd, 2012 10:08 pm (UTC)
There is discussion about exactly this on my various digirts civil society lists and I can pass this offer on if you want - but have you already told Joe? (And OMG I should have known you knew him - we were plotting, re DP not ACTA in Brussels 2 wks ago.. he is a star.)

Edited at 2012-02-23 10:11 pm (UTC)
surliminal
Feb. 23rd, 2012 10:13 pm (UTC)
ps do you not assume as I would that those states already clearly resistant to ACTA eg Poland, Germany will not do their own work successfully of producing anti ACTA argts?
nwhyte
Feb. 24th, 2012 10:28 am (UTC)
I'm sure that they will do their best, but there is no harm in giving their diplomats a steer to make sure that the legal services are given adequate direction!

It's a different dynamic now - the goal is to get those who are already on-side to put their case rather than to win over the waverers.
( 5 comments — Leave a comment )

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