If one thing resorts clearly from the ACTA saga, it is that the atmosphere of secrecy in which ACTA was negotiated (required allegedly to enable mutual trust between the parties in the negotiations) completely backfired and deteriorated trust in the European Commission by European citizens and the European Parliament, resulting in ACTA’s ultimate demise. In a case decided yesterday by the General Court this tension between secrecy needed for the effective conduct of negotiations and the right of citizens to be informed was readily apparent in determining whether the Commission was acting lawfully in its decision to refuse access to documents related to those negotiations to European Member of Parliament Sophie in ‘t Veld.
The European Commission has decided to withdraw its request for an Opinion of the CJEU on the compatibility of ACTA with EU law, and more specifically the EU Charter of fundamental rights (the decision was allegedly taken on Wednesday’s meeting of the Commission, although we are still waiting for an official press release). As I reported earlier, the admissibility of the request was doubtful in any case. Nonetheless, this is a nice Christmas present from the Commission to the CJEU, which will not have to deal with this political hot potato anymore. Too bad for the academic world I guess; I was quite curious what the CJEU would make of the request.
Well, that came as no surprise. Today, the European Parliament officially rejected ACTA. In a vote today 478 MEPs voted against ACTA, 39 in favour, and 165 abstained. As we mentioned earlier on the blog, the Commission already requested the Opinion of the Court on the compatibility of ACTA with the Treaties and the Charter in accordance with article 218 (11) TFEU.
Now that the European Parliament has rejected ACTA, what happens to this request? The Commission could retract its request, saving the Court from a lot of headaches and drawing it into this political mud-fight. That would be kind of the Commission of course. However, since the Commission has been so determined in arguing the benefits of ACTA, as well as defusing concerns over fundamental rights issues, the Commission might be tempted to hear the Court’s Opinion anyway. The advantage for the Commission would be that it obtains legal certainty on whether ACTA is compatible with the Treaties and the Charter, possibly opening the door to ratification or renegotiation. And if the Court were to rule that ACTA is compatible, the Commission would have proven its case and save some face.
The question is: does the Court still need to give an Opinion now that the European Parliament has rejected ACTA?
Today Commissioner Karel de Gucht announced that the Commission will request the opinion (pursuant article 218 (11) TFEU) of the Court on the compatibility of ACTA with the Treaties and the Charter of Fundamental Rights in particular. The Commisioner stated that
We are planning to ask Europe’s highest court to assess whether ACTA is incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.
(…) But let me be very clear: I share people’s concern for these fundamental freedoms. I welcome that people have voiced their concerns so actively – especially over the freedom of the internet. And I also understand that there is uncertainty on what ACTA will really mean for these key issues at the end of the day.
So I believe that putting ACTA before the European Court of Justice is a needed step. This debate must be based upon facts and not upon the misinformation or rumour that has dominated social media sites and blogs in recent weeks.
As I have explained before the European Parliament on several occasions, ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law. What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world.