European Commission admits use of second-hand impact study for ACTA
legislation laundering
It seems that the “copy and paste” and “one-stop laundry” habits are
hard to kick. Under pressure from a European Parliament resolution and a written declaration which both demanded in line with EU law an impact assessment of the criminal IP enforcement measures proposed in ACTA, the Commission has decided that there is no need to carry out a new specific study on this global agreement about to be signed.
In a response to written questions from a group of MEPs the EU executive body has responded that
“it has based its assessment of the impact of ACTA on the studies made for the 2004 Directive on the enforcement of Intellectual Property Rights (Directive2004/48/EC2) and for the 2006 proposal for a Directive criminal enforcement of IPR (COM (2006)168 final) (not adopted). “
This seems to be a very significant answer. It implies that the European
Commission and EU Council are deliberately using ACTA to bypass the
normal legislative procedure of the European Parliament as legally
mandated to approve any EU harmonization of criminal enforcement
measures. In other words, they admit that they are trying to legislate “through the back door” by using the ACTA country club “trade agreement” to place into EU law politically unpopular measures without full democratic scrutiny and guarantees. It is true the European Parliament has communicated with the ACTA negotiators and that in the end the EP must give its “assent” to the final ACTA text. Nevertheless, the introduction of EU wide criminal measures surely should demand a much wider, more open and amendable legislative procedure.
On top of that, the impact report the EC plans to "re-cycle" in order to
justify ACTA is over five years old and was concerning IPRED2, a failed attempt at the harmonization of criminal IPR enforcement within the EU as opposed to the broader, global deal of ACTA.This law did not get approved in the EU Council due to the opposition of a number of EU member states. Precisely the blockage of IPRED2 is one of the motivations behind the EU's interest in using an“international trade agreement” like ACTA to achieve what they couldn't within their own borders and normal democratic processes.
In contradiction with the EC's rejection of a specific impact
assessment, EU Commissioner for Fundamental Rights Vivienne Redding
committed herself months ago to a complete evaluation of ACTA's global impact on fundamental rights. Let's hope that we do not witness again with ACTA another version of Redding's unsuccessful attempt to defend basic rights as her failed defense of Roma/Gypsies being deported from France by Sarkozy in clear violation of EU law.
Meanwhile, the ACTA debate is not yet concluded. It seems that there are still outstanding issues referring to the scope of the agreement and other questions such as technical anti-circumvention measures in the Internet chapter. Many voices will still be heard from civil society and the European Parliament. The jury is still out.
David Hammerstein, TransAtlantic Consumer Dialogue