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From: Ante <ante@ffii.org> Date: 19 ottobre 2011 15:40:10 GMT-04:00 To: a2k discuss list <a2k@lists.keionline.org> Subject: [A2k] European Parliament legal service confirms: ACTA may or may not be legal Reply-To: ante@ffii.org

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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