Monday, July 23, 2012

ACTA's slow European demise

By Professor Jeffery Atik

The Anti-Counterfeiting Trade Agreement (ACTA) reached the end of the road on July 4, when the European Parliament rejected the treaty, by a stunning vote of 39 for and 478 against (with 165 courageous MEPs abstaining). The profound reversal is all the more remarkable given that the governments of all EU member states had earlier supported ACTA (reflected in a unanimous approval of the EU Council in December 2011). Throughout, ACTA continued to enjoy the support of the EU's administrative arm, the European Commission.

ACTA was promoted as an articulation of higher IP enforcement standards by the 'like-minded' First World states (chiefly the United States, Japan and Europe) that control the greater stock of the world's valuable intellectual property. There was a wide range of objections to ACTA, but the greater concerns expressed in Europe was its potential disregard for due process and its potential inconsistency with Europe's strong privacy rights. While ACTA may ultimately come to life (upon ratification of six signatory parties), it has little practical import in the absence of European participation.

The first cracks in European support for ACTA appeared in the course of Member State approvals. As a so-called mixed agreement - a treaty involving both Brussels-level authority and residual Member State sovereignty - ACTA required approval of all 27 EU Member States, as well as ratifications by the relevant EU institutions. Twenty-two EU Member States signed ACTA on January 26 of this year, but five Member States (including Germany and the Netherlands) hesitated. As the months progressed and opposition to ACTA mounted, ACTA's prospects in the holdout Member States declined further. And several EU Member States - led by Poland - sought to negate their prior approvals within their respective national ratification processes. As Member States began to defect from the accord, ACTA's days were numbered.

Still, successful completion of ACTA's EU-level ratification might have eventually persuaded recalcitrant Member States to fall in line. After all, Member State governments do change from time to time.

Approval by the European Parliament was needed in order to complete the EU accession to ACTA. The Parliament had already expressed its displeasure with the secretive fashion by which ACTA had been negotiated; the lack of procedural transparency limited the possibility of parliamentary influence on the terms of ACTA. Rather, the European Parliament was presented with ACTA on a take-it or leave-it basis.

There is no doubt that the anti-ACTA demonstrations across Europe influenced the MEPs. ACTA opponents successfully directed the public attention to what - in earlier times - might have been regarded as a piece of arcane rule-making. Moreover, prominent members of Europe's negotiating team distanced themselves from the treaty as public disapproval increased.

In what many observers believe to be a desperate (and cynical) move, the European Commission referred ACTA to Europe's high court, the European Court of Justice (ECJ), in order to determine its consistency with European constitutional principles. Examination by the ECJ could well take a year or two, during which time (so it may have been thought) ACTA's political prospects might improve. But for the recourse to the ECJ to function as a delaying tactic, the European Parliament would have to agree to postpone its vote pending the issuance of the court's opinion. And this, the Parliament was not willing to do.

All five committees within the European Parliament that reviewed ACTA recommended its rejection. A constellation of left and center parties adopted positions supporting a definitive rejection of ACTA; the Christian Democrats took the somewhat more conciliatory position that perhaps ACTA could be reworked. But outside the increasingly isolated Commission, there was no visible support for ACTA from any important political block. Once it became clear Parliament would not await an ECJ ruling, the rejection of ACTA at the EU level became a certainty. The vote of July 4 simply revealed how thoroughly European support for ACTA had collapsed.

The post-vote debate has shifted from whether ACTA is dead in Europe to how dead ACTA may be in Europe. Of course, the ECJ might find ACTA to be wholly consonant with EU legal principles (an unlikely outcome), various Member States might rethink their opposition, and (conceivably) the Commission might ask Parliament to reconsider. EU trade commissioner Karel De Gucht in fact suggested this mad scenario.

There is no doubt: ACTA is dead in Europe. And as such, ACTA is likely a dead-letter everywhere else.

But the substance of ACTA is hardly dead. MEPs suspect that many of ACTA's provisions will be found in the Canada-Europe trade agreement under negotiation. European opponents to ACTA will follow the Canada-Europe process closely to assure that objectionable elements of ACTA are not reintroduced in the context of another agreement binding on Europe.

Thanks to Jack Cooper and Luke Fisher for research assistance.

Follow me on Twitter @jefferyatik

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