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?
I’ll cite and discuss some previous case law on the matter. The purpose of an Opinion, according to the Court in Opinion 1/75 is
To forestall complications which would result from legal disputes concerning the compatibility with the treaty of international agreements binding upon the community. In fact, a possible decision of the court to the effect that such an agreement is, either by reason of its content or of the procedure adopted for its conclusion, incompatible with the provisions of the treaty could not fail to provoke, not only in a community context but also in that of international relations, serious difficulties and might give rise to adverse consequences for all interested parties, including third countries.
For the purpose of avoiding such complications the treaty had recourse to the exceptional procedure of a prior reference to the court of justice for the purpose of elucidating, before the conclusion of the agreement, whether the latter is compatible with the treaty. This procedure must therefore be open for all questions capable of submission for judicial consideration, either by the court of justice or possible by national courts, in so far as such questions give rise to doubt either as to the substantive or formal validity of the agreement with regard to the treaty.
The goal of an Opinion is thus to avoid complications that may arise in respect of international commitments. This means that an agreement must be ‘envisaged’. As the Court held in Opinion 1/94 an agreement remains an envisaged agreement until and unless the EU has given consent to be bound by the agreement. If an agreement has already been concluded and ratified (and thus definitive) it makes no sense to request an Opinion in line of the purpose of Opinions (see also Opinion 3/94). On the other hand, and more relevant to the ACTA referral, an agreement cannot be scrutinized by the Court if the actual entry into force is merely hypothetical or very distant. In this case, the only possibility for the Commission to follow through with the request, is to argue that it needs the Opinion of the Court in order to take away the concerns of the European Parliament and submitting it to the Parliament again or by renegotiating the agreement on the basis of the Opinion and the demands of the European Parliament.
As to renegotiations, it seems that accepting such an argument would be highly unlikely in light of the case law of the Court. The Commission would have to provide the Court with sufficient information on any new draft of ACTA in order to assess the compatibility with the Treaties. In Opinion 2/94 (on accession to the ECHR) the Court stated
In order fully to answer the question whether accession by the Community to the Convention would be compatible with the rules of the Treaty, in particular with Articles 164 and 219 relating to the jurisdiction of the Court, the Court must have sufficient information regarding the arrangements by which the Community envisages submitting to the present and future judicial control machinery established by the Convention.
21 As it is, the Court has been given no detailed information as to the solutions that are envisaged to give effect in practice to such submission of the Community to the jurisdiction of an international court.
So, the Court can probably escape this potential political minefield by holding the request inadmissible. The Commission is put into a bit of a catch 22 situation however. Clearly, if it wishes to renegotiate ACTA, it would need to take away the concerns of the European Parliament and therefore need to know the compatibility of the envisaged agreement with fundamental rights. But at the same time, the request as it is tabled now is probably inadmissible.