European Parliament legal service confirms: ACTA may or may not be legal
19 October, 2011

http://www.edri.org/edrigram/number9.20/acta-ep-legal-service-opinion

Intellectual Property Enforcement

Several weeks ago, the International Trade Committee of the European
Parliament asked for an opinion from the Parliament's internal legal service
regarding ACTA's legality and whether or not documents must be made public. At
the end of last week, the confidential response from the Legal Service was
delivered. The result is that the lawyers believe that ACTA may indeed be, or
possibly may not be, legal and in line with the existing legal framework of
the European Union.

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. Of course, if the interpretations of the other
negotiating parties are different from those which the Legal Service has
guessed at, then ACTA may, indeed, not be legal after all.

Asked whether the preparatory documents of the Agreement must legally be
published, the Legal Service is very precise: there is no obligation under
international law to publish preparatory documents. They accept that
preparatory documents may be used to interpret unclear agreements and that
parts of ACTA are unclear. However, they helpfully point out that, as long as
the documents are not made public by any of the negotiating partners, they
cannot be used to assign meaning to the unclear sections of the text. The
Legal Service chooses not to address the wisdom of adopting an international
agreement, the meaning of which is likely to change if any of the negotiating
partners subsequently chooses to publish documents in order to "prove" that
its interpretation of the text is the correct one.

The only minor point of concern in this context is that the European
Parliament has already published the leaked text of the digital chapter (which
refers to private companies unilaterally cutting citizens' Internet access) on
its own website. This minor point means that the European Parliament has
already shown that ACTA (by promoting lawless sanctions by private companies
against citizens and their right to freedom of expression and due process) is
in clear and unequivocal breach of the Treaty on European Union, which
requires the Union to support democracy and the rule of law in its
international relations.

In the meantime, the Commission has provided a rather unexpected answer to a
priority written question on the meaning of the previously unheard-of
"fundamental principle" of "fair process" that is referred to in ACTA. The
Commission does not seek to argue that the "fundamental principle" is a
fundamental principle at all. Instead, it simply explains that the meaning of
the term "fair process" can be found in the Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPS) of the World Intellectual Property
Association which... contains no reference whatsoever to "fair process".

The Commission expresses the hope and assumption that this is what the other
ACTA negotiating partners also understood. In short, the "fundamental
principle" is not a "fundamental principle" and its meaning is, at best, an
educated guess on the part of the Commission.

Parliamentary question
http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=P-...

Parliament's leak of ACTA digital chapter
http://www.europarl.europa.eu/meetdocs/2009_2014/documents/d-us/dv/sup...

Backup of Parliament's leak
http://www.edri.org/files/acta_disconnection.pdf (see footnote 6)

FFII requests European Parliament’s Legal Services’ opinion on ACTA
(15.10.2011)
http://acta.ffii.org/?p=833

(contribution by Joe McNamee - EDRi)

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