From Act-on-ACTA
Rule 117.4 of the rules of procedure of the European Parliament says "Questions which require an immediate answer but not detailed research (priority questions) shall be answered within three weeks of being forwarded to the addressees"
Questions were received by Parliament's services on 20-21 October (except for P-9346/2010) and subsequently put online with the date of 26 October. Answers are therefore expected before 16 November.
See also 4 October priority question to the Council
SKA KELLER: ACTA - competence to negotiate criminal measures (P-9029/2010)
The Criminal Enforcement section of ACTA concern provisions on criminal procedures, criminal liability, criminal offenses, criminal enforcement and penalties.
- Can the Commission explain on which legal basis these criminal measures are negotiated?
- Considering that the provisions on aiding and abetting concern the general structure of national legal systems of criminal law, does the Commission consider that the provisions on aiding and abetting are compatible with its negotiation mandate?
P-9029/10EN Answer given by Mr De Gucht on behalf of the Commission (30.11.2010) 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.
ORIOL JUNQUERAS: ACTA - minimum rules proved essential? (P-9025/2010)
In 2007, the Commission launched a questionnaire addressed to the Member States in order to conduct a study [1] to verify if Member States consider criminal sanctions essential to ensure the effective implementation of community law in the area of intellectual property rights, as required by Art 83.2 TFEU.
- How will the Commission take into account the answers to the questionnaire in the context of the ACTA negotiations?
[1] See Reply P-0541/2008 from Commission
P-9025/10EN Answer given by Mr De Gucht on behalf of the Commission (30.11.2010) 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.
INDREK TARAND: ACTA - proportionality principle with regards to copyright crimes (P-8952/2010)
Considering when proper account is taken of the proportionality principle, harmonisation of criminal penalties can only be justified when all the following elements are present:
- Identity with the infringed object of protection
- Commercial activity with an intention to earn a profit
- Intent with regard to the existence of the infringed right
- Does the Commission consider the definition of copyright crimes in ACTA meet the requirements of the proportionality principle as formulated above?
P-8952/10EN Answer given by Mr De Gucht on behalf of the Commission (6.12.2010) The ACTA chapter on criminal enforcement of Intellectual Property Rights was negotiated by the rotating EU Presidency on behalf of the EU Member States. Therefore, the Commission believes that the Presidency is best placed to provide useful information in this respect.
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?
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.
CARL SCHLYTER: ACTA - injunction powers going beyond those provided for in the EU acquis (H-0541/10*)
In the Civil Enforcement section of the Anti-Counterfeiting Trade Agreement (ACTA), paragraph 1 of Article 2.X: Injunctions allows judicial authorities to issue an order (injunction) against a party, or a third party, to ‘prevent infringing goods from entering into the channels of commerce’. This injunction power is considerably different from that existing under the EU acquis (Article 9 of the Intellectual Property Rights Enforcement Directive (Directive 2004/48/EC)), which permits injunctions ‘to prevent any imminent infringement’. Furthermore, the third parties need to be involved in the infringement (‘against an intermediary whose services are being used’). The ACTA text essentially eliminates the thresholds for injunction powers that exist under the EU acquis.
- Given that, by laying down the thresholds for injunctions, the EU acquis has struck a delicate balance between enforcement and fundamental rights safeguards, how will the Commission ensure that these safeguards under the current EU acquis are maintained?
- How will the Commission safeguard the thresholds currently provided for in the EU acquis?
*) Tabled as oral question
H-0541/2010 Svar från kommissionen 23.11.2010 Kommissionen skulle vilja klargöra att artikel 2 X.1 i Acta-avtalet (sidan 6) hänför sig till förelägganden i betydelsen åtgärder som vidtas när domstolen konstaterar att immaterialrättsintrång har ägt rum (det talas om att en part föreläggs att upphöra med intrånget). I artikel 9 i direktivet om säkerställande av skyddet för immateriella rättigheter talas det om interimistiska åtgärder och säkerhetsåtgärder (i EU-rätten även kallade interimistiska förelägganden, därav det möjliga missförståndet), som är tillfälliga åtgärder som vidtas innan domstolen utfärdar ett slutligt beslut. Det är därför som de båda lagrummen hänför sig till olika krav, eller ”trösklar”. Bestämmelsen om förelägganden i artikel 2 X.1 i Acta-avtelet (sidan 6) måste jämföras med motsvarande bestämmelse i artikel 11 i direktivet om säkerställande av skyddet för immateriella rättigheter, medan bestämmelsen om interimistiska åtgärder i artikel 9 i direktivet om säkerställande av skyddet för immateriella rättigheter motsvarar bestämmelsen i artikel 2.5.1 a i Acta-avtalet (sidan 8). Kommissionen gör gällande att de båda Acta-bestämmelserna är fullt förenliga med motsvarande åtgärder i direktivet om säkerställande av skyddet för immateriella rättigheter.
Google translation:
H-0541/2010 Answer from the Commission 23.11.2010 The Commission would like to clarify that Article 2 X 1 in Acta Agreement (page 6) relating to injunctions in importance measures taken when the court finds that IPR violations have taken place (there is talk of that a party is imposed to stop the interference). Article 9 of the Directive on the enforcement of intellectual property rights "referred to the provisional and protective measures (in EU law also called interim injunctions, hence the possible misunderstanding), which are temporary measures taken before court issues a final decision. That is why the two lagrummen referring to different requirements, or "Thresholds". The provision on injunctions in Article 2 X 1 in Acta avtelet (page 6) must be compared with the corresponding provision in Article 11 of the Directive on the enforcement of intellectual property rights, while the provision on provisional measures in Article 9 of the Directive on the enforcement of intellectual property rights corresponding provision in Article 2.5.1 AI ACTA agreement (page 8). The Commission alleges that the two ACTA provisions are fully consistent with similar measures in the Directive on the enforcement of intellectual property rights.
SANDRINE BÉLIER: ACTA - preventing infringements from occurring (P-9028/2010)
Article 2.5 says: “Each Party shall provide that its judicial authorities shall have the authority to order prompt and effective provisional measures: (a) against a party, or where appropriate, against a third party over whom the relevant judicial authority exercises jurisdiction, to prevent an infringement of any intellectual property rights from occurring, and in particular to prevent infringing goods from entering into the channels of commerce”;
- What does exactly mean “prevent from occuring” within the digital environment?
- Would it imply the ISPs must implement technical measures to prevent their customers from committing infringements?
- If so, how can the Commission guarantee that the implementation of such technical measures will be compatible with the respect of privacy, data protection and fundamental rights?
25 November 2010 P-9028/2010 Answer given by Mr De Gucht on behalf of the Commission As regards the meaning, in the digital environment, of ‘prevent from occurring’ in Article 2.18 of ACTA, paragraph 1 of that Article also makes reference to ‘… expeditious remedies to prevent infringements …’ This Article is entirely consistent with the existing EU acquis in the field of intellectual property rights and also e-commerce. In particular, Article 8 of Directive 2001/29(1) on the harmonisation of copyright and related rights in the Information Society, Articles 3 and 9 of Directive 2004/48(2) on the enforcement of intellectual property rights and 12(3), 13(2) and 14(3) of Directive 2000/31(3) on e-commerce. These Directives all provide the possibility for national authorities or courts to order provisional measures, by way of injunctive relief to prevent or terminate an infringement of intellectual property rights in individual cases. An example of this situation would be a case where a court orders a website to remove advertisements promoting sales of counterfeit goods. ACTA does not introduce any requirement for technical measures in the context of Article 2.18. (1) OJ L 167, 22.6.2001. (2) OJ L 157, 30.4.2004. (3) OJ L 178, 17.7.2000.
EVA LICHTENBERGER: Anti-Counterfeiting Trade Agreement (ACTA) (P-9024/2010)
Directive 91/250/EEC (the "Software Directive") and Directive 2001/29/EC (the "Information Society Directive") clearly and explicitly distinguish between anti-circumvention provisions for computer programs, which expressly preserve the Software Directive's reverse engineering provisions, and anti-circumvention provisions for other copyrighted works. Article 2.18 paragraphs 5 and 8 of the 2 October 2010 of the Anti-Counterfeiting Trade Agreement ("ACTA") appear to provide sufficient basis for the European Commission to preserve the EU Aquis, in accordance with the European Commission's repeated and explicit promise, and in particular to safeguard the Software Directive's special regime preserving reverse engineering and circumvention.
- Considering the above, and in light of the critical importance of the reverse engineering regime to fundamental EU policies related to interoperability, competition and innovation, can the Commission explicitly confirm that the ACTA anti-circumvention provisions leave the Software Directive's special regime of circumvention unaffected and preserve the Software Directive's reverse engineering provisions, and in particular that ACTA would not require any changes to the anti-circumvention provisions of the Software Directive or Information Society Directive or the Member States' laws implementing those provisions?
P-9024/10EN Answer given by Mr De Gucht on behalf of the Commission (10.1.2011) When negotiating the Anti-Counterfeiting Trade Agreement (ACTA), the Commission ensured compatibility with the interoperability provisions of Directive 91/250/EEC[1]. For this purpose, a specific footnote was added regarding the implementation of Article 27(5) and (6) of ACTA (the former paragraphs 2.18.5 and 2.18.6 of the draft text of 15.11.2010). The footnote 15 in the ACTA text concerns interoperability and states that "… no Party shall be obliged to require…". This clearly ensures that there is no obligation to amend the current EU legal framework regarding interoperability. There is no doubt that this footnote should be read, like Article 6 of Directive 2001/29/EC[2], as not prohibiting those devices or activities that have a commercially significant purpose or use other than the circumvention of technical protection. Moreover, Article 27(8) of ACTA leaves the parties with the necessary freedom to provide exceptions and limitations, and the Commission is of the opinion that the relevant provisions for computer programmes could be considered to be "appropriate limitations" within the meaning of that Article. Therefore the limitations expressed in Article 6 of Directive 2001/29/EC and in Directive 91/250/EEC are preserved. [1] Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs, OJ L 122, 17.5.1991. [2] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 22.6.2001.
CHRISTIAN ENGSTRÖM: ACTA - corporative efforts (P-9026/2010)
Article 2.18.3 of the proposed ACTA agreement says that “Each party shall endeavor to promote cooperative efforts within the business community to effectively address” copyright infringements in the digital environment. This text appears to mandate a form of cooperation such as extra-judicial 'three-strikes' mechanisms with users cut off the Internet as the result of an obligation (“shall”) on the Parties to “effectively address” infringements.
This wording does not respect the EP Resolution on ACTA of March 2010, which explicitly excludes such cooperative efforts.
Furthermore, it contradicts the Commission’s repeated statements that 'three-strikes' is not an outcome sought by the ACTA.
- How does the Commission justify the non-compliance with the EP Resolution on ACTA?
- How does the Commission foresee amending the text to explicitly exclude any interpretation able to introduce 'three-strikes' or similar extra-judicial regimes that the Commission has repeatedly said are not meant to be the subject of ACTA?
P-9026/10EN Answer given by Mr De Gucht on behalf of the Commission (22.12.2010) The Commission would like to inform the Honourable Member that it considers Article 2.18(3) of the Anti-Counterfeiting Trade Agreement (ACTA) to be in line with the provisions of Articles 16 (Codes of Conduct) and 19 (Cooperation) of the E-commerce Directive or in Article 17 (Codes of Conduct) of the Enforcement Directive, all of which promote the cooperation between concerned parties and the seeking of voluntary solutions. This was also the case for a number of initiatives undertaken by the Commission and by several Member States in the last years to establish dialogues and work on memoranda of understanding between the relevant stakeholders, which have eventually not led to the introduction of graduated response regimes. Therefore, the Commission does not share the grounds of the question. No provision in ACTA would mandate its signatories to apply measures such as extra-judicial "three-strikes" mechanisms. Article 2.18(3) of ACTA introduces only a voluntary commitment, which ACTA parties may or may not pursue, to promote cooperation within the business community. The wording "shall endeavour" (as opposed to a plain "shall") cannot be read as imposing any obligation of result , nor it can be intended to infer that such result would inevitably be to cut-off users from the internet. The Commission's legal interpretation excludes that this provision could be read as mandating ACTA signatories to introduce "three-strikes" or similar regimes. The Commission reaffirms that, at no stage in the ACTA negotiations were there any proposals on the table about the direct or indirect introduction of a compulsory "3 strikes" or a "graduated response" system or about an obligation to disconnect people from the internet. But even if that would have been the case, the Commission would have rejected such provisions. The Commission cannot introduce or accept in ACTA a provision explicitly excluding any interpretation permitting the introduction of "three-strikes" or similar regimes among the ACTA members. This would be in breach of the Commission's negotiating guidelines not to modify the EU legislation through the negotiation of an international agreement. As the Honourable Member knows, "three-strikes" systems exist in certain EU Member States and are being envisaged in others, while, at the same time, other Member States oppose the use of such mechanisms. The Commission's perspective is that the existing acquis does not impose any 'three-strike rule' or graduated response systems but that it is flexible enough to allow different EU countries to have different approaches, while fully respecting fundamental rights, freedoms and civil liberties. In this respect, the text of ACTA is fully in line with the EU acquis, as requested by the Parliament.
MICHÈLE RIVASI: ACTA and access to medicine (P-9346/2010)
The current wording on damages and other remedies in the text of the proposed ACTA (Anti-counterfeiting Trade Agreement) could open the way to excessive damages for infringement, outside current international legal standards, which could have a strong dissuasive effect on competition from generic medicine and on access to life-saving drugs. By permitting such an increase in levels of damages, the agreement effectively expands the rights of IP right-holders, thus heightening the risks that face generic competitors seeking to enter the market. The result could be to dampen innovation and curb the production and trade of generic medicines. Moreover, the proposed high levels of damages and penalties will force changes in the law of some EU Member States and are clearly incompatible with current US law.
ACTA could also continue to impede the supply of medicines to developing countries. While patents are no longer included in the Border Measures section, they are still covered by the rest of the agreement, including the provisions on civil trademark infringement, with greatly increased penalties. This means that a customs official could initiate the seizure — and, indeed, the destruction — of allegedly infringing goods without judicial review, and even without notification to the right-holder, simply on the basis of an assertion by a right-holder of a commercial trademark dispute.
Third parties face the risk of injunctions, provisional measures and even criminal penalties including imprisonment, as well as severe economic losses. This applies, for example, to suppliers of active pharmaceutical ingredients used for producing generic medicines; distributors and retailers who stock generic medicines; NGOs which provide treatment; funders supporting health programmes; and drug regulatory authorities which examine medicines. All this could function as a significant deterrent to anyone involved in the production, sale and distribution of affordable generic medicines.
- Given the possible effects on access to medicines, and on innovation, of including patents in the agreement, would the Commission consider accepting the exclusion of patents, as proposed by a number of the ACTA negotiating parties?
- Will the Commission consider carrying out an assessment of ACTA’s impact on access to medicine, generic competition and technological innovation?
P-9346/10EN Answer given by Mr De Gucht on behalf of the Commission (14.12.2010) The Commission has carefully considered and addressed concerns regarding access to medicines in developing countries. The Commission is firmly convinced that the Anti-Counterfeiting Trade Agreement (ACTA) will have no negative effect on access to medicines or on the trade of legitimate generics, for the following reasons: - ACTA contains an express reference to Doha Declaration on TRIPS1 and Public Health and incorporates the objectives and principles of articles 7 and 8 TRIPS, which refer, inter alia, to the safeguard of public health; - Patent infringements (including when in transit) are neither covered by border controls nor by penal enforcement provisions in ACTA; - Furthermore, the final version of ACTA leaves it optional for signatories to apply the civil remedies section to patents («..may..»). In other words, this means de facto that ACTA will not oblige its signatories to apply any of its provisions on patents. These measures, which include several layers of safeguards, should allay the concerns of those who claimed throughout the negotiating process that ACTA could affect negatively access to medicines.
ACTA questions by MEPs from other political groups
Svensson: ACTA — misrepresentation of Ombudsman decision (4 November 2010 P-9252/2010)
ACTA — misrepresentation of Ombudsman decision
In the Plenary debate on ACTA on 20 October 2010(1), the Commission referred to a decision of the Ombudsman(2) justifying the fact that ACTA had been negotiated as a trade agreement and not as an enforcement treaty. One day later, the Swedish minister of Justice said ACTA would require changes in Swedish law(3), increasing the powers of the police to act on its own to enforce intellectual property rights.
Considering that the Ombudsman agreed "that the conclusion of the ACTA may indeed make it necessary for the EU to propose and enact legislation. In that case, the ACTA would constitute the sole or the major consideration underpinning that legislation, and citizens would have a clear interest in being informed about the ACTA", would the Commission be willing to moderate its categorical conclusion that the Ombudsman's decision supports the fact that ACTA texts have not been made publicly available during the negotiations?
(1) Debates, Wednesday, 20 October 2010 - Strasbourg, point 16. Anti-Counterfeiting Trade Agreement (ACTA): http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+CRE+20101020+ITEM-016+DOC+XML+V0//EN&language=EN
(2) European Ombudsman's decision on complaint 90/2009/(JD)OV relating to denied access to ACTA documents: http://people.ffii.org/~ante/acta/ombudsman-2010-7-23.pdf
(3) Dagens Nyheter, ‘Acta-avtalet kräver ny svensk lagstiftning’: http://www.dn.se/nyheter/politik/acta-avtalet-kraver-ny-svensk-lagstiftning-1.1193058 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+P-2010-9252+0+DOC+XML+V0//EN&language=EN
P-9252/10EN Answer given by Mr De Gucht on behalf of the Commission (17.12.2010) The Commission wishes to clarify that in the Plenary debate of 20 October 2010, the Member of the Commission responsible for Trade stated "… that the Ombudsman has recently recognised, in the precise context of the ACTA negotiations, that it was justified to maintain the confidentiality of some key negotiating documents. The Ombudsman confirmed that the preservation of confidentiality was legal and in line with the 2001 Regulation on access to documents". His statement related to the allegations that the Commission had unjustifiably conducted the ACTA negotiations without transparency and made reference to the fact that the Ombudsman concluded that there was no maladministration by the Council concerning its refusal to provide access to some ACTA negotiating documents. Regarding the need for legislative changes in EU Member States, mentioned by the Swedish Minister of Justice, it is possible that some countries may need to adapt their domestic legislation to comply with commitments they have undertaken in the negotiation of the ACTA section on penal enforcement. This chapter was negotiated by the rotating EU Presidency on behalf of the Member States. However, the Commission wishes to stress that this does not concern EU legislation, since penal enforcement of Intellectual Property Rights (IPR) infringements is an area that is not yet harmonised in the European Union, and is still subject to the domestic legilsation of Member States. In other words, there is no "EU acquis" in this area. Finally, the Commission re-iterates that the implementation of ACTA will not require the adoption or the revision of any new EU legislation and notes that that several versions of the ACTA texts have been made publicly available since April of 2010.
Schaake: ACTA - a law enforcement treaty? (18 October 2010 E-8847/2010)
ACTA — a law enforcement treaty?
There is public concern worldwide about the lack of formal transparency in the ACTA negotiation process, such as illustrated in the article ‘ACTA Guide, Part Three: Transparency and ACTA Secrecy’, by Professor Michael Geist (see http://www.michaelgeist.ca/content/view/4737/125/). Other articles and open letters can be found at the following shortened addresses: http://bit.ly/4EdMKK, http://bit.ly/4CJv2n, http://bit.ly/bdUGlx and http://bit.ly/aQDUO2.
Parliament has repeatedly asked the Commission for transparency in the ACTA negotiations, but to no avail.
1. Does the Commission accept that an agreement which contains specific and extensive civil and criminal law enforcement measures does not qualify as a trade agreement, but as a law enforcement treaty? If not, why not?
2. Does it agree that the classification of ACTA as a trade agreement has enabled the parties to seek non-transparent negotiations? If not, why not?
3. Is it willing to contest the classification of ACTA as a trade agreement, on the grounds that it in fact seeks to regulate illegal and criminal activities? If not, why not?
4. Can it explain the legal status of the document ‘Maintaining Confidentiality of Documents’, which can be found at http://bit.ly/b23KAc? Does the Commission’s negotiating mandate authorise it to agree to the conditions set out in this document? Is it bound by the language used in this document, for example the opening sentence: ‘First, we agree that documents relating to the proposed Anti-Counterfeiting Trade Agreement (ACTA) will be held in confidence’? Did it sign this document?
5. Does it agree that by complying with other negotiating parties’ demands for non-transparency, it has compromised the rules and regulations on access to information and transparency in the European Union, as laid down in the Lisbon Treaty and in Regulation (EC) No 1049/2001(1)? If not, why not?
(1) OJ L 145, 31.5.2001, p. 43.
E-8847/10EN Answer given by Mr De Gucht on behalf of the Commission (21.1.2011) 1. The Commission does not share the Honourable Member’s views as regards lack of transparency in the conduction of the ACTA negotiations. Since the launch of negotiations (June 2008), the Commission has continuously informed the public about the objectives and general thrust of the negotiations, including the summarising of reports after every negotiation round. At the request of the Commission, the negotiating text was released for the first time in April 2010. The latest version was published on 6 October 2010. Furthermore, the Commission organised three stakeholder conferences on ACTA which were open to all – citizens, industry, NGOs and press. Additionally, the Commission kept the Parliament regularly informed, both at the Plenary (which the Member of the Commission responsible for Trade has addressed 3 times in the last 8 months) and through the INTA (International Trade) Committee. The Commission has provided dedicated briefings to interested Members of the Parliament on all aspects of the negotiations, after each negotiating round since March 2010. Regarding the first question about whether ACTA qualifies as a trade agreement, the issue that needs to be settled is under which competences the Union can potentially ratify the Agreement. It is clear that the EU's competence under the common commercial policy (Article 207 TFEU), which includes "the commercial aspects of intellectual property", provides an EU competence for the matters regulated in ACTA. In this sense, therefore, ACTA can be considered a "trade" agreement. ACTA does not require the introduction of any modification of EU legislation and will not require any legislative implementation in Europe. At the same time, it builds upon the main international standards, which are set by the Agreement on Trade- Related Aspects of Intellectual Property Rights, which is one of the World Trade Organisation's treaties. For these main reasons, it was negotiated under a general trade heading, but with the full participation of all competent Commission services. The penal enforcement provisions were negotiated by the rotating Presidency on behalf of Member States. 2. As regards transparency, trade agreements, based on Article 207 TFEU, are subject to the same rules on transparency as applicable to other negotiations, but Article 207 requires that the Parliament be kept fully informed. International negotiations are always subject to a certain degre of confidentiality because the parties need a minimum level of confidentiality to feel comfortable enough to make concessions or to try different options. 3. As explained in the response to the first question, ACTA is a trade agreement. The fact that it falls under Article 207 means that the standard rules on ratification apply. The Commission will need to formally decide whether to propose the agreement for ratification, the Council will need to decide whether to sign and conclude the agreement, and the Parliament will be required to give its consent. To the extent that the agreement is mixed, i.e. it concerns both EU and Member States' competences, it will require ratification by the Member States. 4. The document "Maintaining Confidentiality of Documents" reflects the content of an informal agreement among the ACTA Parties expressing the understanding that intergovernmental negotiations dealing with issues that have an economic impact, may not necessarily take place in public and that negotiators are bound by a certain level of discretion. 5. Since this issue is currently the object of a court case lodged by an Member of the European Parliament against the Commission, the Commission does not wish to address the question in more detail at this stage. However, the Commission would like to refer the Honorable Member to a recent Decision by the European Ombudsman1 concluding that the refusal of the Council to publicly disclose certain documents related to the ACTA negotiations was justified, as making them public would have a negative effect on the prevailing climate of confidence in the negotiations, and that open and constructive co-operation might be hampered.
Castex: ACTA (26 October 2010 P-9179/2010)
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? Can this be interpreted as meaning that EU Member States as well need not change any item of their legislation which is not consistent with ACTA?
If this is the case and ACTA is not legally binding on the EU and the US, is it then only intended to be used as a ‘point of reference’ for third countries negotiating free trade agreements with the EU?
P-9179/10EN Answer given by Mr De Gucht on behalf of the Commission (15.12.2010) 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). This is without prejudice to the fact that different provisions in ACTA define different levels of commitment by the ACTA members. Some provisions are impertative or mandatory – often using the word "shall" – while others are optional, using expressions such as "Parties may", "shall endeavour" or "shall encourage" and others still, allow for a certain level of flexibility or adaptation to existing domestic legislation, by introducing concepts such as "as appropriate" or "consistent with a Party's law". This is common practice both in international treaties and in EU legislation. In the case of the European Union, the Commission has repeatedly stressed that the content of ACTA is either in line or less demanding than the EU acquis, therefore the Agreement is already fully implemented by the current EU legislation. This means that ACTA will not require the adoption or modification of EU legislative acts. As far as the Commission is aware, the United States government has issued similar statements, which should not be interpreted as meaning that US laws will be inconsistent with ACTA. 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.
Bozkurt: ACTA (Anti-Counterfeiting Trade Agreement) (3 November 2010 P-9459/2010)
ACTA (Anti-Counterfeiting Trade Agreement)
The Commission submitted the final text on ACTA (Anti-Counterfeiting Trade Agreement) on 6 October. Regarding the text of the agreement and the finalising of the details, can the Commission answer the following questions:
1. The ACTA agreement proposes an annual meeting of signatories where amendments to the Treaty can be negotiated. If that happens, how will the Commission guarantee sufficient European Parliament oversight, scrutiny and participation?
The ACTA negotiations have so far been criticised for their lack of open debate, transparency and public participation. How does the Commission envisage the process of possible future amendments to the signed ACTA agreement?
Will the ACTA Committee operate in an ‘open, transparent and inclusive manner’? How can the Commission ensure that?
2. Generic competition is key for bringing down prices and ensuring access to affordable medicines around the world and disproportionate enforcement measures will inhibit generic competition, as seen in the Dutch, German and French medicines detention cases; taking into account also the fact that ACTA intends to set a global standard, has the Commission evaluated, through impact studies, whether or not the proposed provisions in ACTA regarding damages, injunctions and other remedies will hurt generic competition?
Can the Commission ensure, by conducting empirical studies, that ACTA’s IPR enforcement measures would not be a barrier against price-reducing generic competition and would not jeopardise the free flow of legitimate medicines across borders?
More specifically, with regard to damages, does the ‘suggested retail price’ imply the entire market valuation rule (EMVR) for patents? Would ‘damages’ of this kind not dissuade generic completion and innovation?
Is the Commission considering accepting Footnote 2 {‘US: For the purpose of this Agreement, Parties agree that patents do not fall within the scope of this Section.’}, which will remove patents from the civil enforcement section?
3. Regarding Article 2.18 — Enforcement in the Digital Environment — how can the provision whereby authorities can order ISPs to disclose the identity of a subscriber to a rights holder be interpreted? Will the safeguards in the article be sufficient? Does it mean that this can be done without a judicial order?
P-9459/10EN
Answer given by Mr De Gucht
on behalf of the Commission
(10.1.2012)
The Commission wishes to clarify that the final version of the ACTA text was made available to the public
on 15 November 2010. It can be found on the website of the Directorate-General for Trade[1].
1. The ACTA Committee is an annual meeting, with no authority to amend ACTA, as clearly stipulated in its
Article 6.4: "Each Party may propose amendments to this Agreement to the Committee. The Committee shall decide
whether to present a proposed amendment to the Parties for acceptance, ratification, or approval". ACTA can
only be amended if there is consensus among the parties and if the national (and EU) procedures of approval
and ratification – including full respect of competencies of Member States and the Parliament – are respected.
Participation in this committee should be in line with the well established practice for participation in the
TRIPS[2] Council of the World Trade Organisation.
2. The Commission recalls that the purpose of the provisions proposed in ACTA is to tackle products infringing
intellectual property rights, not generic products. The proposed provisions do not target medicines either directly
or indirectly and it is not the intention to use enforcement measures (be it at the border or in civil or penal
litigation) to hinder the legitimate trade in generic medicines.
To ensure this goal, the Commission has carefully considered and addressed concerns regarding access to medicines
in developing countries. The Commission is firmly convinced that ACTA will have no negative effect on access to
medicines or on the trade of legitimate generics, for the following reasons:
- ACTA contains an express reference to the Doha Declaration on TRIPS and Public Health and incorporates the
objectives and principles of Articles 7 and 8 TRIPS, which refer, inter alia, to the safeguard of public health;
- patent infringements (including when in transit) are neither covered by border controls nor by penal enforcement
provisions in ACTA;
- furthermore, the final version of ACTA leaves it optional for signatories to apply the civil remedies section to
patents (« .. may.. »). In other words, this means de facto that ACTA will not oblige its signatories to apply any
of its provisions on patents.
These features of ACTA should allay the concerns of those who claimed throughout the negotiating process that ACTA
could negatively affect access to medicines.
In addition, Article 2.2 of ACTA provides for guidelines for the judicial authorities to determine the amount of
damages adequate to compensate for the injury the right holder has suffered. This provision only applies when
an infringing activity has been duly established. This provision mirrors Article 13 of the IPR Enforcement Directive[3].
3. Article 27.4 (Article 2.18.4 in earlier drafts) of ACTA corresponds to existing EU legislation, in particular
Article 8 of the Directive on Enforcement of IPR Directive and the Data Protection[4], eCommerce[5] and ePrivacy[6]
Directives. Additionally, as the Honourable Member notes, any implementation of this ACTA provision is subject
to the EU fundamental rights, namely the freedom of expression, fair process and privacy.
Regarding who is competent to order the disclosure of the information, both the EU legislation (Article 15.2 of
the e-Commerce Directive) and ACTA refer to the competent (public) authorities, which will have to be determined
according to Parties' legislations. In the EU context and depending on the legal framework of each Member State,
these will be either judicial or administrative authorities. For instance, in the case of civil proceedings,
Article 8(1) of the IPR Enforcement Directive clearly allocates this power to the competent judicial authorities.
[1] http://trade.ec.europa.eu/doclib/docs/2010/december/tradoc_147079.pdf
[2] Agreement on Trade-Related Aspects of Intellectual Property Rights (1994) of the World Trade Organisation
[3] Directive 2004/48/EC, OJ L 157, 30.04.2004 and OJ L 204, 4.08.2007
[4] Directive 1995/46/EC, OJ L 281, 23.11.1995
[5] Directive 2000/31/EC, OJ L 178, 17.07.2000
[6] Directive 2002/58/EC, OJ L 201, 31.07.2002
SKA KELLER: ACTA - outstanding issues (12 October 2010, E-8295/2010)
While reminding the Commission that the Parliament in its 10 March Resolution:
- was "deeply concerned that no legal base was established before the start of the ACTA negotiations and that parliamentary approval for the negotiating mandate was not sought";
- instructed the Commission to conduct impact assessments "prior to any EU agreement on a consolidated ACTA treaty text":
We note that:
- the Commission Trade Spokesperson has informed Members of Parliament that the negotiators in Tokyo "produced a consolidated and largely finalized text" and that the Government of Japan "hosted informal meetings" with business leaders [1];
- the Commission has silently withdrawn IPRED2, the criminal sanctions directive proposal 2005/0127/COD [2];
- the Commission relies on the studies made for IPRED2 to assess the impact of an implementation of ACTA [3].
1. In the Commission's view, how does the legislative character of ACTA reflect on obligations under Article 15 of TFEU (good governance and the participation of civil society), Article 21 of TEU (advancement of human rights and fundamental freedoms) and the Venice Convention (promoting democracy through law), in particular relating to enforcement procedures and so called "cooperative efforts" to address intellectual property rights infringement in the digital environment?
2. The legal basis for IPRED2, Article 83 TFEU, does not say Parliament and Council may facilitate mutual recognition of criminal enforcement by means of trade agreements, but rather that the ordinary legislative procedure may establish minimum rules for the approximation of criminal laws and regulations. How will the Commission ensure that democratic prerogatives of Parliament previously foreseen for IPRED2 are not bypassed by ACTA? Is it the Commission's view that ACTA may enter into force in absence of an EU Acquis on criminal enforcement?
[1] http://en.act-on-acta.eu/2_October_Joint_Statement_from_all_negociating_parties
[2] http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2010:252:SOM:EN:HTML http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:252:0007:0011:EN:PDF
[3] http://en.act-on-acta.eu/E_4292_10
E-8295/10EN Answer given by Mr De Gucht on behalf of the Commission (7.12.2010) 1. The Honorable Member refers to the "legislative character of ACTA". If this means that ACTA would introduce new legal provisions in the European Union, the Commission reiterates its constant position that ACTA neither modifies the existing EU acquis nor requires any implementing measures to ensure compliance with its provisions. The enforcement procedures, including the voluntary "cooperative efforts" to address infringements of intellectual property rights in the digital environment foreseen in ACTA are in line with the existing EU legislation. As the Commission has explained in its detailed response to Question E-8847/10 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. 2. ACTA cannot enter into force before the European Parliament has given its consent. This ensures that the democratic prerogatives of the Parliament will be fully respected. Further, the Commission does not consider that the penal chapter of ACTA will establish or replace the need for an European acquis harmonising the penal aspects of IPR infringements. The relevant ACTA chapter reflects a common understanding between the Member States which was negotiated by the rotating Presidency of the EU on behalf of the Member States. There are past examples of trade related agreements on intellectual property where the EU committed to penal enforecement rules. This was, for example, the case with the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Propery Rights (cfr. Article 61 of the TRIPS Agreement). The Commission sees no reason why ACTA could not enter into force before penal enforcement rules are harmonised in the European Union.
