13 May 2014


After today's excellent RegNet seminar by Duncan Matthews on 'The TPPA: Implications for Access to Medicines in Comparative Perspective' at the ANU I'm rereading his 'The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union' (Queen Mary School of Law Legal Studies Research Paper No. 127/2012), which
revisits the arguments, debates and controversies that led up to the European Parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA), reflects on what might happen once the Court of Justice of the European Union (CJEU) has clarified the implications of the agreement for fundamental rights and freedoms in the European Union (EU), and evaluates the implications for the EU of the scrutiny of international agreements with provisions on intellectual property rights in the future. The article undertakes these tasks in four stages. First, it examines how Parliament was able for the first time to exercise its power of veto over a draft international agreement negotiated by the Commission on behalf of the EU under the consent procedure of the Treaty on the Functioning of the European Union (TFEU). Second, it reconsiders the rationale for ACTA in terms of why the agreement was perceived as being necessary in the first place, given that other international fora existed for intellectual property enforcement issues to be addressed. Third, the article reflects on the reasons why ACTA became so controversial that it became the focus of unprecedented public concern in the EU and its Member States, which particular attention paid to lack of transparency in the negotiating process, concerns that fundamental rights and freedoms in the EU would be undermined by provisions of ACTA, and concerns that the agreement would conflict with the acquis communautaire of the EU and with the WTO TRIPS Agreement. Fourth, the article concludes by considering what lessons can be learned for the future.
Matthews comments
On 4 July 2012, the European Parliament, in plenary session, rejected the Proposal for a Council Decision on the conclusion of the Anti-Counterfeiting Trade Agreement (ACTA). he vote was unprecedented. The Lisbon Treaty on the Functioning of the European Union (TFEU) had entered into force on 1 December 2009 and, under the TFEU, international trade agreements now require Parliament's consent. The ACTA vote was the first time that Parliament had exercised its new powers under the consent procedure to reject such an agreement. Given that the ACTA negotiating process had begun on 23 October 2007, almost two years before the TFEU had entered into force, this could not have been foreseen. Nor could it have been anticipated that the highly technical set of provisions on intellectual property enforcement contained in ACTA would be transformed into widespread public concern about such emotive issues as lack of transparency during the negotiating process and the implications of the agreement for fundamental rights and freedoms in the European Union (EU). Yet, it was precisely these public concerns that became to be intertwined with the more technical aspects of the agreement, in particular the issue of whether ACTA was fully compatible with the acquis communautaire of the EU and with the World Trade Organisation (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (the TRIPS Agreement) when Parliament was asked to give its consent.
This combination of close scrutiny of highly technical intellectual property enforcement issues framed in terms of concerns about lack of transparency in the ACTA negotiation process and the need to ensure of fundamental rights and freedoms in the EU are upheld, together with Parliament’s willingness to exercise its new power of veto under the consent procedure of the TFEU, that transformed ACTA into such a controversial topic of public debate and ultimately led in Parliament’s rejection of the agreement on 4 July 2012. In the light of this vote, important lessons can be learnt about the future prospects for international trade agreements with provisions on the enforcement of intellectual property rights.
Furthermore, in terms of the wider implications of ACTA for the EU legislative process, it is also significant that procedurally Parliament’s vote took place before the Court of Justice of the EU (CJEU) had responded to the European Commission’s request, on 22 February 2012, to clarify whether ACTA is incompatible, in any way, with the EU’s fundamental rights and freedoms, including freedom of expression and information and data protection, and the right to property in the case of intellectual property.
It should also be noted that Parliament had earlier asked the Commission to make ACTA documents public and enhance the role of Members of the European Parliament (MEPs) in negotiating the agreement. This opportunity for Parliament to play a more significant role in determining the content of ACTA did not arise and, once the final version of ACTA was agreed, Parliament could not alter it, and instead only approve or block it. In the event, Parliament declined to give its consent to ACTA, with the result that the entire EU remains outside of the agreement.
Matthews concludes -
The experience with ACTA highlights a number of lessons about the complexities of Parliamentary scrutiny of international trade agreements in the EU. First, there is little doubt that ACTA could have been negotiated with greater transparency and this would have alleviated public concerns about its implications. Secrecy in the early stages in the negotiating process led to rumours about the agreement’s implications even though the most controversial provisions had in fact been watered down subsequently or, in the case of the ‘three strikes’ or ‘graduated response’ provisions, deleted from the final text altogether.
The second lesson to learn from ACTA is that, by framing concerns about detailed intellectual property enforcement measures in terms of the potential risks to fundamental rights and freedoms, public opinion in the EU can be mobilised to an extent not hitherto seen. It should also be acknowledged, however, that the intensity of protests against ACTA was unevenly spread across EU Member States. In some Central European countries, such as the Czech Republic or Poland, there were markedly higher levels of protest and public displays of disaffection with ACTA than in other EU Member states, such as the UK. In part this was due to concerns in former Communist states about censorship, and about abuses of fundamental rights and freedoms. These concerns were exacerbated by relatively low levels of intellectual property enforcement in Central European countries which gave the impression that ACTA would introduce new standards of intellectual property enforcement when, in fact, national law in these jurisdictions generally already required equivalent standards to those set out in the agreement.
The third lesson from ACTA in the EU is that even after the final text of the agreement had been published, lack of clarity in the wording of its legal provisions caused uncertainty and anxiety in Parliament and in EU Member States about the agreement’s possible implications. The fact that ‘commercial scale’, for instance, was not defined clearly in Article 23.1 of ACTA contributed significantly to uncertainty and public anxiety, and led to further public mobilisation against ACTA since it was not made clear whether or not private acts by individuals would be excluded from its scope. This absence of a clear definition for the term ‘commercial scale’ could, in fact, have been addressed in a straightforward way by a footnote to indicate that its meaning should be understood with reference to the jurisprudence of the ACTA Contracting States.
The fourth lesson from ACTA is that, in terms of negotiating an international trade agreement in the EU, Parliament will not be slow to use its power of veto under the consent procedure of the TFEU. The vote on 4 July 2012 was therefore very much an opportunity to demonstrate the strength of concerns in Parliament about the agreement’s lack of transparency, implications for fundamental rights and freedoms in the EU, compatibility with the acquis communautaire of the EU, and compatibility with the TRIPS Agreement. It will be instructive to see whether the Commission adopts a different strategy when it engages with Parliament on the adoption of international trade agreements under the consent procedure in the future, given the experience with ACTA.
The fifth lesson from ACTA is that Parliament will not necessarily wait until the CJEU has clarified the status of international trade agreements when the Court is asked to do so by the Commission, nor is Parliament obliged to do so. Yet, while there was nothing in the TFEU to prevent Parliament from going ahead and rejecting ACTA under the consent procedure without waiting for the CJEU, it could be argued that procedurally it would have been preferable if Parliament had waited until after the CJEU had completed its detailed examination of whether ACTA is in line with fundamental rights and freedoms in the EU before vetoing the agreement. In terms of what could happen next following Parliament’s rejection of ACTA, it should also be borne in mind that Article 42.1 of the agreement allows a Party to propose amendments to the ACTA Committee. If ACTA ever came into force in other Contracting States, the ACTA Committee would then decide whether to present a proposed amendment to the Parties for ratification, acceptance or approval. A revised version of ACTA, could therefore, procedurally at least, re-surface in the EU in the future.
Ultimately, however, it may be that ACTA-style provisions will simply re-emerge by virtue of being incorporated into bilateral and regional trade agreements between the EU and third countries. This would sidestep public concerns about the impact of ACTA domestically within the EU Member States and switch the focus instead exclusively onto raising standards of intellectual property enforcement in the EU’s trading partners. In this regard, the long-term significance of ACTA may well not have ended with Parliament’s vote on 4 July 2012. Instead, the vote could well provide a stimulus for reconsideration of the scope and applicability of intellectual property enforcement provisions in bilateral or regional trade agreements of the EU.  If this is the case, Parliament may well have cause to revisit the intellectual property enforcement provisions of international trade agreements in the future.