Draft Analysis of the Legal Opinion on ACTA, duty to keep Parliament fully and immediately informed
Summary: Earlier drafts will play a role in interpreting ACTA, publication of all drafts is needed. The European Parliament can not be involved in trojan horse legislation, and has to reject ACTA if not all texts are published.
1 Various websites, among which the FFII, published a Note for the attention of Mr Juan Fernando Lopez Aguilar, Chairman of the European Parliament Civil Liberties, Justice and Home Affairs Committee, regarding the Anti-Counterfeiting Trade Agreement (ACTA). [1] According to the Note, Mr Juan Fernando Lopez Aguilar asked Jurisconsult three questions regarding the duty to fully inform the European Parliament on agreements. The Anti-Counterfeiting Trade Agreement (ACTA) was one of the reasons to ask the questions. While we can not be certain the Note is genuine, we would like to analyse some aspects.
2 The legal opinion is an interpretation of Art. 218 of the Treaty on the Functioning of the European Union (TFEU). This treaty can be seen as the Constitution of European citizens. The legal opinion is labeled confidential. Access to interpretations of a treaty, that can be seen as a constitution, only strengthens democracy.
3 The European Court of Justice (ECJ) stressed in the Turco case (joined cases C-39/05 P and C-52/05 P) the importance of public access to legislative proposals and preparatory texts: "Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinize all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights." Note the ECJ uses the formulation "all the information".
4 Substantially, major parts of ACTA are legislation. Transparency has to be complete. Obstructions are not allowed.
5 The Commissioner in charge of ACTA refused to give Parliament access, stating that the text of the agreement "can only be made public if all parties agree". Agreeing on secrecy was obstruction.
6 But the Commissioner provided Parliament with wrong information. Both the United States government and the Dutch government released the document "Maintaining Confidentiality of Documents". The document states that the ACTA documents can be given to "persons outside government who participate in the party's domestic consultation process and have a need to review or be advised of the information in these documents". There never was an obstacle to providing Parliament with all documents - U.S. corporate lobbyists received them, and they were circulated in Europe as well. [2] In fact, since ACTA will contain civil, border and criminal measures, everybody is a stakeholder. Everybody has a need to review or be advised of the information in these documents.
7 The Vienna Convention on the Law of Treaties stipulates that the history of a treaty plays a role in the interpretation of that treaty. On April 21st, the negotiating parties released a draft text. The released draft makes the earlier leaks seem genuine. Infamous footnote 29 is missing: "An example of such a policy is providing for the termination in appropriate circumstances of subscriptions [US: and] [AUS: or] accounts on the service provider's system or network of repeat infringers". [3] If the footnote indeed was part of an earlier draft, it is part the history of the treaty and will play a role in the interpretation of ACTA. For this reason, full publication of all ACTA texts is essential. Without full publication, ACTA will have hidden interpretations, public and Parliament can not scrutinize ACTA. Without full publication, ACTA is a trojan horse.
8 Unknown aspects of ACTA make it impossible to assess whether ACTA is proportional (Art. 5 TEU) and is compatible with internal Union policies and rules (Art. 207.3 TFEU). Parliamentary and public scrutiny is essential.
9 Paragraph 3 of the legal opinion states that the April publication made the request for a legal opinion redundant. This is not correct since all drafts are needed for the interpretation of ACTA.
10 Conclusions 2 and 3 of the legal opinion leave room to not fully disclose all information of agreements to Parliament. It should be clear that such non-disclosure can never happen in so far drafts contain parts which substantially are legislation. All parts of all drafts, which substantially are legislation, have to be made public. Otherwise the EU is involved in trojan horse legislation.
11 The European Parliament can not be involved in trojan horse legislation, and has to reject ACTA if not all texts are published.
[1] http://people.ffii.org/~ante/acta/EP_Legal_Service_on_release_of_ACTA_documents_to_the_EP.pdf
[2] http://action.ffii.org/acta/Analysis?action=AttachFile&do=get&target=FFII-Ombudsman-06-2009.pdf
[3] http://en.swpat.org/wiki/201001_acta.pdf_as_text#Page_28
