Marrakesh in the EU: facing the excuses and delay tactics after Council statement
What the Council Statement on Marrakech says:
Council Statement: http://www.statewatch.org/news/2015/apr/eu-council-marrakesh-treaty-guidance-7321-15.pdf
Two separate issues are dealt with: how to put Marrakesh into EU law and how to ratify the Treaty
We are facing two issues put forth by EU Member States: “the appropriate sequence of the implementation of the Marrakesh Treaty” and “the appropriate legal basis for the decision, in conjunction with the question of competence (exclusive versus shared)” Even if there are first legislative changes in copyright law for Marrakesh, it is still not at all clear that EU Member States will want to ratify as exclusive EU competence.
As opposed to the Commission the Council´s position is that the Treaty cannot be implemented without changes in EU legislation. The Council presents no legal arguments for its position while the Commission has. It criticizes the Commission harshly for not presenting a legislative proposal in last year and a half and for presenting “vague proposals that lack legal certainty.” This is a blame game, a political ping-pong that wastes time and diverts attention from ratification.
Surprisingly, the Council admits that it could take the decision to ratify the Treaty now and to deposit the ratification decision in WIPO once “legal implementation” is done (but prefers to have new legislation first): “even if the Council adopts the Decision on the conclusion of the Marrakesh Treaty on behalf of the European Union, it would not be possible to deposit the relevant instruments of ratification (and thus finalise the conclusion of the Marrakesh Treaty by the European Union) until the internal EU legal framework has been adjusted accordingly.”
Competence issue: The Council admits that its own legal service agrees with the Commission that it is “EU exclusive competence” Logically this also means that the Council legal service also implies that there is no need for new legislation since the basis of EU exclusive competence is that it is already covered by EU law.
The Council says some member states want EU Treaty Article 19.1 (to combat discrimination) to also be used as a legal basis for ratification.
Finally, the Council asks the Commission to suspend the ratification request and asks to Commission to present a legislative proposal to adapt Marrakesh to EU law.
Possible Responses for the debate in the European Parliament Plenary(last week of April):
Express our profound dissatisfaction that over a year and a half time has been lost for access to culture for the visually-impaired due to a lack of consensus building, technical-legal commitment and political will on the part of EU member states. This expresses a lack of sensitivity of the needs of blind and visually impaired persons. We do not want a blame game between Council and Commission but concrete, swift progress toward Treaty ratification.
Demand that the Council presents a written position on the legislative changes it deems necessary to EU legislation so as to avoid unnecessary disagreements and delays in the future. These should be drafted in close consultation with blind persons representatives and their organizations to assure that the objectives of the Marrakesh Treaty are not weakened or changed in anyway by new EU legislation.
Reject the suspension of the Ratification process as proposed by the Council and reject inserting Marrakesh legal implementation in the general copyright debate.
Ask the European Parliament, the Commission and the Council to have three-way informal consultations to reach an agreement on the swiftest way of assuring ratification and implementation.
Demand that the Council and the Commission adopt a timetable for the ratification/implementation process.
NOTE: Please contact your MEPs. Any member of the European Parliament from any country or political group can participate in this plenary debate. Even if he/she does not have official speaking time, he or she can ask to speak briefly from the floor of the plenary debate by the “catch the eye” process.