Commission asks ECJ to assess ACTA's compliance with fundamental rights

Out-Law News | 05 Apr 2012 | 5:27 pm | 3 min. read

The European Court of Justice (ECJ) will review whether a controversial intellectual property (IP) treaty is compatible with the guardian principles and rights behind EU law, the European Commission has said.

The Commission said it had "unanimously" agreed to ask the ECJ if "the Anti-Counterfeiting Trade Agreement (ACTA) [is] compatible with the European Treaties, in particular with the Charter of Fundamental Rights of the European Union".

In a separate development a European Parliamentary committee has issued a draft opinion  (3-page / 92KB PDF) that recommends that the committee leading the scrutiny of ACTA at the Parliament "withhold its consent to the agreement".

EU Trade Commissioner Karel De Gucht has urged the Parliament to wait for the ECJ to issue its verdict on the lawfulness of ACTA before determining whether to approve it or not. The European Parliament and the individual governments in the EU must approve ACTA before it can come into effect.

"I am very pleased that we are now one step closer to ensuring clarity on ACTA," EU Trade Commissioner Karel De Gucht said in a statement. "As I said when I first proposed this action in late February, I believe the European Commission has a responsibility to provide our democratically elected parliamentary representatives and the public at large with the most detailed and accurate information available."

"Most of the criticism against ACTA expressed by people across Europe focused on the potential harm it could have on our fundamental rights. So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement," De Gucht said.

"The European Union is founded on respect for the rule of law. Considering that tens of thousands of people have voiced their concerns about ACTA, it is appropriate to give our highest independent judicial body the time to deliver its legal opinion on this agreement. This is an important input to European public and democratic debate. I therefore hope that the European Parliament will respect the European Court of Justice and await its opinion before determining its own position on ACTA," the Commissioner said.

The ECJ has recently ruled on the balance of rights laid out in the EU Charter of Fundamental Rights in relation to anti-piracy measures in two key cases. The Court ruled that national courts cannot order ISPs or social networks to introduce broad monitoring and filtering mechanisms to identify and prevent illegal file-sharing by their customers. 

In both cases the ECJ assessed EU laws on copyright and the enforcement of intellectual property rights as well as laws on the liability of service providers, data protection and privacy in communications. It also weighed the fundamental rights to the protection of intellectual property against the rights to privacy, free speech, the freedom to conduct business, and protection of personal data. It said that, on balance, it would be unfair if courts could force social networks to monitor for illegal file-sharing.

ACTA requires member countries to have in place "enforcement procedures" under national laws that allow for "effective" action to be taken against intellectual property (IP) infringers that is both "expeditious" and a suitable "deterrent to further infringements".

Member countries of ACTA must ensure that IP that exists in "the digital environment" can also be enforced through civil and criminal legal procedures. Enforcement must be done "in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and ... preserves fundamental principles such as freedom of expression, fair process, and privacy".

ACTA also includes further requirements signatories must adopt relating to the systems they operate at customs and border control to combat infringement as well as statutory provisions that give courts certain powers to act against offenders in both criminal and civil proceedings.

The "effective enforcement" of IP rights is "critical to sustaining economic growth across all industries and globally," the ACTA text states.

In January the UK, along with 21 other EU member countries, signed up to ACTA at a ceremony in Japan. Subsequently, however, a number of the EU signatories, including Poland and the Czech Republic, have expressed concern with the proposed text and have suspended their "ratification" of it.

In February thousands of people took to the streets of cities across Europe to protest against the impact they believe ACTA would have on their internet freedoms. Other concerns have been raised about the secrecy in which ACTA was negotiated, with a rapporteur on the text at the European Parliament resigning in protest over the ACTA signing process - something he referred to as a "charade".

Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore and the US signed ACTA in October last year.

ACTA is being scrutinised by a number of committees at the European Parliament as part of the process for approving or rejecting the treaty.

A draft opinion urging the rejection of ACTA has been formed on behalf of the Parliament's Industry, Research and Energy Committee (IREC). The draft advises the International Trade Committee (ITC) not to recommend ACTA to MEPs. The ITC is primarily responsible for scrutinising ACTA at the Parliament and is tasked with recommending whether MEPs should accept or reject the text. A final vote by MEPs is expected by June.

"The Committee on Industry, Research and Energy calls on the Committee on International Trade, as the committee responsible, to propose that Parliament decline to give its consent [to ACTA]," the draft opinion said.

Rick Falkvinge, founder of Sweden's Pirate Party, said that IREC's ACTA rapporteur Amelia Andersdotter will present the provisional opinion to the IREC committee on 24 April with a vote on what form the committee's finalised recommendation to the ITC should take likely to be held on 8 May.