Common resolution on ACTA in EP proposed by Socialist, Green and Liberal groups

EUROPEAN PARLIAMENT
2009 – 2014

Session document

23.11.10
DRAFT COMMON MOTION FOR A RESOLUTION
pursuant to Rule 110 of the Rules of Procedure
On ACTA
Kader Arif and Véronique De Keyser on behalf of the S&D Group
Niccolò Rinaldi, Marietje Schaake, Alexander Alvaro, Marielle De Sarnez, Renate Weber, Metin KAZAK on behalf of  ALDE Group

Carl Schlyter, Eva Lichtenberger, Sandrine Bélier, Greens/EFA Group
Helmut Scholz, Rui Tavares, Miloslav Ransdorf, Marisa Matias
on behalf of GUE/NGL Group
The European Parliament,

–    having regard to Articles 207 and 218 TFEU
–    having regard to the Charter of Fundamental Rights of the European Union, and in particular its Article 8,
–    having regard to the Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union
–    having regard to the conclusion of the last round of negotiations, on 2 October 2010, of the Anti-Counterfeiting Trade Agreement

–    having regard to the public release of the final ACTA Text, on 15 November 2010

–    having regard to its Resolution of 18 December 2008 on “the impact of counterfeiting on international trade” (2008/2133(INI))
–    having regard to its resolution of 10 March 2010 on transparency and the state of play of ACTA negotiations

– having regard to its Written Declaration 0012/2010 on the lack of a transparent process for the Anti-Counterfeiting Trade Agreement (ACTA)

–    having regard to the Plenary Debates on 8 September and 20 October 2010 on the Anti-Counterfeiting Trade Agreement

–    having regard to the European Parliament decision of 20 October 2010 on the revision of the framework agreement on relations between the European Parliament and the European Commission

–    having regard to the Inter-Institutional Agreement on Better Law-Making between the European Parliament, the Council and the Commission (2003/C 321/01)

–    having regard to the European Ombudsman’s decision on complaint 90/2009/(JD)OV relating to access to ACTA documents

–    having regard to the opinions of the European Data Protection Supervisor (EDPS) on the current negotiations by the European Union of an Anti-Counterfeiting Trade Agreement , and the letter from the Data Protection Working Party to the European Commission

–    having regard to Directive 2000/31/EC of European Parliament and Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce)
–    having regard to Directive 2002/58/EC of European Parliament and Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, as last amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009

–    having regard to World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

–    having regard to the Council Conclusions on Policy Coherence for Development (PCD)

–    having regard to WTO Dispute DS409, European Union and a Member State – Seizure of Generic Drugs in Transit

–    having regard to WTO news release on the June 8-9 2010 TRIPS Council

–    having regard to Rule 110 of its Rules of Procedure,

Lisbon Treaty
A. Whereas the EU has exclusive competence in the area of the Common Commercial Policy (CCP);  Whereas as a result of the entry into force of the Lisbon Treaty, the Parliament will have to give its consent to the ACTA text, prior its entry into force in the EU,

General remarks

B. Whereas fight against counterfeiting at global level represents a key element in the EU political strategy in order to ensure the same level playing field to EU producers and the maintenance of employment and jobs for EU citizens ,

C. Whereas the 11th and final round of the negotiations for the Anti-Counterfeiting Trade Agreement (ACTA) was concluded in Tokyo, Japan on October 2,.2010;  Whereas a technical meeting to finalise the legal wording will take place in Sydney (30 November – 3 December (or if necessary 4  December) 2010),

D. Whereas ACTA relates to crucial issues such as the Respect for fundamental rights, privacy and data protection, the respect for the important role of free Internet and to safeguard the neutrality of service providers and the safeguard of access to medicines,

E. Whereas ACTA is presented to the European Parliament by the Commission as a tool to improve the level of effectiveness of those standards which will benefit EU exports and protect right-holders when they operate in the global market as they currently suffer systematic and widespread infringements of their copyrights, trademarks, patents, designs and geographical indications,

F. whereas 11 countries (EU being counted as a country) and amongst them only two developing countries (Morocco and Mexico) participated in the negotiations,

G. Whereas the aim of the negotiating parties is to extend ACTA to any party willing to join in, including developing and emerging countries,

H. Whereas the ACTA negotiators made public the consolidated text on October 6 2010 and thereafter, the Commission briefed Parliament; Whereas the Commission publically released the final ACTA Text on 15 November 2010,

I. Whereas, after a strong claim by the European Parliament the level of transparency of the negotiations has improved.

J. Whereas clarification of the legal basis of ACTA is needed,

K .Whereas the Commission has referred to the decision of the Ombudsman to justify ACTA is negotiated as a trade agreement and not as an enforcement treaty; whereas the Ombudsman appraised 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”,

L. Whereas the Commission as guardian of the Treaties is obliged to uphold the acquis communautaire, Whereas this implies that it can not change when negotiating international agreements affecting legislation in the EU,
M. Whereas as the Commission repeatedly said in plenary debates that the Anti Counterfeiting Trade Agreement only addresses enforcement measures and does not include provisions modifying substantive IPR law within the EU,

N .Whereas the Directive 2001/29/EC provides for a legal framework on copyright and related rights and a system for their protection; whereas Article 5 of the Directive presents an exhaustive enumeration of exceptions and limitations, thereby limiting Member States from providing new exceptions and limitations; Whereas ACTA seeks to further extend the level of protection for right holders by catering for more extensive copyright enforcement competencies, but does not address the possibility of expanding existing exceptions and limitations and may constrain discretion of national courts to flexibly interpret existing exceptions; whereas technological advances have multiplied and diversified the vectors for creation, production and exploitation of creative works and a fair balance of interests between right holders and users requires new approaches to liberalizing access to these works through digital technologies; whereas the Commission is preparing a legislative proposal on orphan works to facilitate the digitization and dissemination of culture works in Europe,

O. Whereas any agreement reached by the European Union on ACTA must comply with the legal obligations imposed on the EU with respect to privacy and data protection law, as notably set forth in Directive 95/46/EC, in Directive 2002/58/EC and in the jurisprudence of the European Court of Human Rights and of the Court of Justice,

P. Whereas ACTA parties have committed to upholding obligations under Article 7 of the TRIPS Agreement to contribute to the promotion of technological innovation; whereas fundamental EU policies related to interoperability rely on provisions in the acquis communautaire which permit in some cases reverse engineering,
Patents
Q . Whereas the Trade Commissioner invited the opinion of the Parliament during the 20 October 2010 plenary on the outstanding issue of whether to include patents in the Civil Enforcement sections; whereas ACTA negotiators have asserted that “ACTA will not hinder the cross-border transit of legitimate generic medicines”; whereas Parliament in its resolution and written declaration has declared that any measure aimed at strengthening powers of cross-border inspection and seizure of goods should not harm global access to legal, affordable and safe medicines; whereas EU Council Regulation 1383/2003, the provisions of which are being discussed in a WTO dispute case, provides border enforcement measures for in-transit goods; whereas some actors such as businesses in the pharmaceutical sector, manufacturers of generic medicines and global health advocates alert against the inclusion of patents in ACTA and warn of potential detrimental effects on technological innovation, access to medicine and generic competition,

R. Whereas there is no EU legislation on patents;
S .Whereas patents may be excluded from the application of civil enforcement measures in ACTA; Whereas the inclusion of patents in this section could hamper access to legal, affordable medicines,

Access to medicines

T. Whereas some important trading partners not currently parties to ACTA have asserted at the WTO TRIPS Council that ACTA may conflict with the TRIPS Agreement and other WTO agreements, pose a risk to WTO law and process by operating outside the WTO legal framework, undermine the balance of rights, obligations and flexibilities that were carefully negotiated in various WTO agreements, distort trade or create trade barriers, and undermine flexibilities built into TRIPS and the Doha declaration on TRIPS and public health of 2001, such as for public health and trade in generic medicines,

Fundamental Rights

U. whereas the Commission stated in its Communication on 19 October 2010 that the “Union’s action must be above reproach when it comes to fundamental rights” and that the “Union must be exemplary in this respect”; whereas the Commission stated in Plenary on 20 October 2010 that ACTA “is not yet initialed” and that “it is the Commission’s prerogative, as a negotiator, to determine the point at which negotiations are technically finalized and at which the agreement can be initialed”,

V. whereas any agreement reached by the European Union on ACTA must comply with the legal obligations imposed on the EU with respect to privacy and data protection law, as notably set forth in Directive 95/46/EC, in Directive 2002/58/EC (as last amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009), in Directive 2009/136/EC and Directive 2009/140/EC on Electronic communications networks and services, and in the jurisprudence of the European Court of Human Rights and of the Court of Justice,

W. Whereas the Commission is bound by the 2010 Inter-Institutional Agreement and therefore shall not support self- and co-regulatory mechanisms where fundamental rights, such as the right to freedom of expression, are at stake,

X. Whereas the Commission published a communication on impact assessment on 19 October 2010,

Y. whereas the Commission stated in its Communication on 19 October 2010 that the “Union’s action must be above reproach when it comes to fundamental rights” and that the “Union must be exemplary in this respect”; whereas the Commission stated in Plenary on 20 October 2010 that ACTA “is not yet initialled” and that “it is the Commission’s prerogative, as a negotiator, to determine the point at which negotiations are technically finalised and at which the agreement can be initialled”;

Z. Whereas no provision in the ACTA Agreement must be interpreted to create a precedent or to allow for the present or future derogation from, or the amendment of the acquis that could lead to the weakening of, the protection of fundamental rights under EU law, and the Commission and Council should explicitly state their agreement with this principle,

Geographical indications

AA. whereas the Commission has repeatedly affirmed the importance of enforcing the protection of geographical indications (GIs); Whereas it has been agreed by parties that ACTA will provide for the enforcement of GIs,

Commercial Scale

BB. Whereas ACTA article 2.14.1 contains a definition of commercial scale: ” For the purpose of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct economic or commercial advantage”,

CC. Whereas 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”,

Criminal enforcement and sanctions

DD. Whereas the Criminal Enforcement section of ACTA concerns provisions on criminal procedures, criminal liability, criminal offences, criminal enforcement and penalties; whereas the Presidency of the Council has negotiated the criminal enforcement provisions in ACTA on behalf of Member States,

IPRs in the digital environment

EE. Whereas internet service providers should not bear liability for the data they transmit or host through their services to an extent that would necessitate prior surveillance or filtering of such data; Whereas EDPS’ opinion on ACTA warns that internet service providers (ISPs) might insert “clauses in their customer’s contracts allowing the monitoring of their data and the cutting of their subscriptions”,

FF. whereas Article 1.2 of the agreement states that “[E]ach Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.”,

GG. Whereas the infringement of IPRs in the digital environment is dealt by the national judicial authorities,

ACTA Committee

HH. whereas the Institutional Arrangements in ACTA confer the ACTA Committee with authority related to, inter alia, the implementation and operation of the Agreement, the amending of the Agreement, non-governmental participation and decisions regarding the Committee’s rules and procedures; whereas Article 21 TFEU guides the Union to seek the advancement of democracy,

Lisbon Treaty

1. Notes that according to the Lisbon Treaty, the EP powers have been largely extended in the CCP, and in particular the EP has to give its consent on all trade agreements concluded by the EU ;

General remarks

2. Reiterates that combating counterfeiting is a priority in its internal and external international political strategy and that international cooperation is a key issue to reach this goal;

3. Regrets that the global impact of this agreement is by nature limited by the fact that countries which are the main source of counterfeiting and most of the developing countries are not part to the agreement;

4. Notes the conclusion of the 11th round of Negotiations on the Anti-Counterfeiting Trade Agreement; notes the release of the consolidated Text of 2 October 2010 following the Tokyo round and the release of the final text on 15 November 2010;

5. Regrets that not all negotiation texts, between 10 March 2010 and the final text of 15 November 2010, were made public;

6. Deplores that these negotiations and Agreement have not been conducted in the framework of the existing multilateral fora (e.g.WTO and WIPO), which has lead to its current narrow membership base, excluding most developing countries;

7. Notes that ACTA membership is not exclusive and allows developing and emerging countries to join in; Therefore asks the Commission to refrain from imposing this Agreement on developing countries and to advocate with the other ACTA parties, so that procedures and terms of accession to ACTA are appropriately flexible and take into account the development levels of acceding countries, in line with the Council Conclusions on Policy Coherence for Development;

8. Calls on the Commission and Council to clarify the legal basis; Asks the Commission to clarify the division of competences between the Council and Commission regarding the Criminal Enforcement section of ACTA, including in relation to its initialing; insists that the Parliament be presented with evidence that the legal base for negotiating ACTA is fully compliant with the Lisbon Treaty before the initialing of the Agreement;

9.Welcomes the Commission’s repeated statements that the enforcement of ACTA provisions especially those on copyright enforcement procedures in the digital environment – are fully in line with the acquis communautaire and that neither personal searches nor the so-called ‘three strikes’ procedure will be introduced by this agreement. Any ACTA signatory and in particular the EU may not be mandated to introduce three strikes or similar regimes by the agreement;

10. Urges the Commission to commit itself and to provide evidence in writing to the European Parliament in due time before initialing that ACTA does not constrain the harmonization of exceptions and limitations for copyright and related rights in the EU; constrain the possibility of future expansion of the exceptions and limitations beyond those listed in Directive 2001/29/EC; foreclose future policy options and judicial actions to expand access to creative works given technological advances through the use of exceptions; limit legislative options being on orphan works or prevent Member States from introducing legislation to expand access to orphaned copyrighted works, that limit the remedies of infringing such works;

11. Calls on the Commission to confirm that ACTA will not change now and in the future the EU acquis’ on fundamental rights and data protection, and on the ongoing EU efforts to harmonize IPR enforcement measures and E-Commerce directive;

12 . Asks the Commission to explicitly confirm, in due time before the Parliament consent procedure commences, that ACTA’s provisions leave unaffected the provisions in the acquis communautaire such as those contained in the Software Directive 91/250/EEC and the Information Society Directive 2001/29/EC and Member State implementations thereof that permit in some cases reverse engineering of computer programs and circumvention of TPMs in order to enable interoperability, thereby promoting competition and innovation;

Patents
13. Notes  that in the civil enforcement section of ACTA patents may be excluded, but underlines that an explicit and absolute exclusion is the only way to guarantee that ACTA will not hamper  access to legal, affordable, and life-saving drugs;

14. Asserts that marked increases in damages and in other remedies for possible IP violations could deter manufacturers and third parties involved in the production, sale or distribution of affordable generic medicines, particularly if these provisions are applied to in-transit goods; is concerned that applying civil enforcement provisions to patents in ACTA could go against the public interest, and may increase investment risk, market uncertainty and threaten technological innovation, particularly in sectors where infringement is difficult to determine, or in enforcing patents on living organisms, indigenous products and traditional medicines; asks the Commission to address, before the initialling of the Agreement, the far ranging concerns listed in this motion with regards to the option of applying civil provisions to patents and subsequently present a report to Parliament;

Access to medicines

15. Acknowledges that the ACTA text  in its preamble states that ACTA intends “to provide effective and appropriate means, complementing the TRIPS Agreement, for the enforcement of intellectual property rights, taking into account differences in the respective legal systems and practices” of the ACTA Parties; and recognises that  “the principles set out in the Doha Declaration on the TRIPS Agreement and Public Health, adopted on November 14, 2001, by the WTO at the Fourth WTO Ministerial Conference, held in Doha, Qatar” are building blocks on which the ACTA text stands and therefore considers that any enforcement of ACTA should comply with these principles;

16. Welcomes improvements in the ACTA draft text that provide more safeguards for privacy, public health and some of the protections under the TRIPS Agreement; directs the Commission to assess whether the safeguard provisions in ACTA are enforceable equally in relation to the enforcement provisions; asks the Commission to provide evidence that ACTA will not prevent Member States from introducing legislation that limits remedies for infringements, including, but not limited to, cases such as to expand access to orphaned copyrighted works or to avail of flexibilities under the TRIPS Agreement to guarantee a full range of future policy options; asks the Commission to make an assessment of whether ACTA will in fact be a binding agreement and whether its Article 1.2 provides for a general flexibility for any element that might contradict ACTA in national law; asks the Commission to present the mechanisms enabling flexibility for Parties to adopt legitimate exceptions to the obligations of the Agreement,  that are consistent with the objectives and principles of the TRIPS agreement and the Doha Declaration on TRIPS and public health of 2001

Fundamental Rights

17. Emphasizes that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;

18. Instructs the Commission to present to Parliament, before initialling the Agreement, a legal analysis of the meaning, legality and enforceability of ACTA’s desired policies regarding cooperation between service providers and right holders, as proposed in article 2.18.3., particularly in reference to how cooperative efforts within the business community will not limit fundamental rights of citizens, including the right to privacy, the right to freedom of expression and the right to due process;

19. Recalls on the Commission to conduct an impact assessment, in due time before initialling the Agreement, of ACTA’s implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, and on E-Commerce Directive ;

20. Concludes that the Commission must timely consult with Parliament about the results of these assessments;

21. Is concerned by the content of article 2.X of section 3, which mentions the fact that travellers’’ personal luggage, even when the goods carried are of non-commercial nature, are covered by the agreement unless parties decide to exclude them ; considers that this article constitutes an incitation to the adoption by parties of stricter rules regarding checks of travellers’ personal luggage at borders, while on the contrary the Commission should have defended at the international level a greater protection of people’s fundamental rights, in particular the right to privacy;

22. Insists that the Commission is speedily acting in accordance with its communication of 19 October 2010on an impact assessment on Fundamental Rights;

Geographical indications

23. Urges the Commission to work actively towards the effective enforcement practices of GIs in ACTA; Stresses the importance of the protection of GIs for European companies and employment in the EU; Regrets that the Agreement does not define “counterfeit geographical indications” in its Article 1.X, as this omission might create confusion or at least complicate the tasks of the administrative and judicial authorities in the interpretation and enforcement of ACTA;

24. Disagrees with the position of the Commission, which claims having achieved important improvements regarding the protection of geographical indications ; considers that, since geographical indications will remain unprotected in all countries which do not recognise them in their national legislation, progress in this field is unsatisfactory ;

Commercial Scale

25. Is concerned that the definition of commercial scale in ACTA (Article 2.14.1) goes beyond the definition adopted on 25 April 2007, in its votes on the Amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights – 2005/0127 (COD);

26. Takes into account that the Presidency of the Council has negotiated the Criminal enforcement section on ACTA on behalf of Member States.; Requests the Commission and Council to present to present to Parliament a precise interpretation of “commercial scale” as mentioned in Article 2.14.1 of the Agreement. Requests the Commission and Council to reaffirm that Article 2.14.1 will not require any changes to the acquis communautaire and in particular regarding the European Parliament ‘s votes on the amended proposal for a Directive of the European Parliament and of the Council on criminal measures aimed at ensuring the enforcement of intellectual property rights – 2005/0127 (COD); instructs the Council and Commission to provide a legal assessment before initialling of the agreement of whether the ACTA definition of “commercial scale” is consistent with the WTO China ruling, is fully in line with the EU principles of proportionality and subsidiarity, and will not limit the use by Member States of national exceptions in relation to criminal enforcement measures;

27. Considers that parties should not be obliged to criminalise “camcording” and therefore welcomes that parties agreed after EU insisted on, that the criminalization of “Camcording” is merely optional (article 2.14.3 and article 2.15);

Criminal enforcement and sanctions

28. Is concerned that ACTA allows judicial authorities to issue an order (i.e. injunction in Article 2.X) against a party, or a third party; Notes that this injunction power goes the Intellectual property Rights Enforcement Directive, which only allows injunction “to prevent any imminent infringement”. In addition, third parties, according to this Directive, need to be involved in the infringement to be potentially subject to the judicial authority order;

29. Requests the EDPS to submit an Opinion on the most recent ACTA Text;

IPRs in the digital environment

30. Deplores the Article 2.18.3 that mandates (i.e. “shall endeavour”) cooperation of the Parties with the business community to “effectively address” infringements; Instructs the Commission to present to Parliament, before initialling the Agreement, a legal analysis of the meaning, legality and enforceability of ACTA’s desired policies regarding cooperation between service providers and right holders, particularly in reference to how cooperative efforts within the business community will not limit fundamental rights of citizens, including the right to privacy, the right to freedom of expression and the right to due process; reminds the Commission in the 2003 Inter-Institutional Agreement agreed to “ensure that any use of co-regulation is always consistent with Community law (…) and will not be applicable where fundamental rights are at stake”. asks the Commission to assess whether over all, ACTA may change the current balance in EU law between legal obligations of the internet service providers to protect personal data of end users and to disclose such data to intellectual property right holders or administrative and judicial authorities;

31. Urges the Commission to ensure the scope of the Agreement to be limited to the existing European IPR enforcement system against counterfeiting. The word “unjustifiably” should therefore be kept out of Article 2.X;

32. Worries that a very broad definition of acts of “commercial scale” ( art.2.14.1) coupled with an obligation to ensure criminal enforcement sanctions in case of IPR infringement  in the digital environment (art.2.18.1), including for “aiding and abetting” (art. 2.14.4), may encourage contracting parties of the agreement to adopt legislation which will in practice lead to criminalisation of private users and intermediaries

ACTA Committee

33. Takes the view that the ACTA Committee should operate in an open, inclusive and transparent manner; instructs the Commission to present in due time before the Parliament will have to consider its  opinion on the consent, recommendations for the governance of the ACTA Committee, particularly with respect to the European Parliament participation and the process of amending the Agreement;

34. Stresses any change in this agreement must undergo public scrutiny by all stakeholders and must receive parliamentary approval ; request the Commission to consult the Council and the European Parliament before accepting or proposing any amendment to the current text in the ACTA committee, in a process that assures transparency, parliamentary scrutiny and public participation;

EP’s Conditions to the Consent

35. Recalls that ACTA agreement requires the EP consent and possibly the ratification by Member States; in order to come into force; calls on the Commission and the Council not to propose any provisional application of the agreement before the EP has given its consent ; Reminds the Commission and the Council that the Parliament reserves its right to withhold consent to ACTA; makes any possible consent to the ACTA agreement conditional on the full cooperation on this resolution;
36. Instructs its President to forward this resolution to the Commission, the Council and the governments and parliaments of states party to the ACTA negotiations.

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