[ffii] EU Council refuses to release secret ACTA documents

Ante ante at ffii.org
Mon Nov 10 10:35:11 CET 2008


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EU Council refuses to release secret ACTA documents
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Brussels, 10th November 2008 - The EU Council of Ministers refuses to release 
secret Anti-Counterfeiting Trade Agreement (ACTA) documents. The Foundation 
for a Free Information Infrastructure (FFII) had requested these documents to 
make public and parliamentary scrutiny possible. After the Council's refusal, 
the FFII sent in a confirmatory application, for the EU Council to review its 
position, as allowed by Article 7(2) of the regulation dealing with public 
access to such documents.

ACTA's secrecy fuels concerns that the treaty may give patent trolls 
the means to extort companies, undermine access to low-cost generic 
medicines, lead to monitoring all citizens' Internet communications 
and criminalize peer-to-peer electronic file sharing.

The EU Council refuses to release the secret documents stating that  
disclosure of this information could impede the proper conduct of the 
negotiations, would weaken the position of the European Union in these 
negotiations and might affect relations with the third parties 
concerned.

The FFII reaffirms its application stating that the legislative 
process in the EU has to be open. If the agreement will only be made 
public once all parties have already agreed to it, none of the EU's 
national parliaments nor the European Parliament will have been able 
to scrutinise its contents in any meaningful way. To prevent this from  
happening, it may be necessary to renegotiate ACTA's transparency.

The FFII's confirmatory application letter questions ACTA's secrecy in 
no uncertain terms: "The argument that public transparency regarding 
'trade negotiations' can be ignored if it would weaken the EU's 
negotiation position is particularly painful. At which point exactly 
do negotiations over trade issues become more important than 
democratic law making? At 200 million euro? At 500 million euro? At 1 
billion euro? What is the price of our democracy?"

The Canadian government released documents under the Access to 
Information Act that provide additional insights into the secretive 
nature of the negotiations.

If the EU Council again refuses to release the secret documents, the FFII can 
take the case to the European Court of Justice. An earlier case on 
transparency of EU legislation took 6 years. By that time ACTA may long have 
entered into force.

Ante Wessels, FFII analyst, says: "We do not have so much time. The 
only solution we see is that the parliaments of Europe force the 
Council to publish the texts by making Parliamentary scrutiny 
reservations."


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Links
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Note FFII's confirmatory application letter is attached below.

*  FFII opposes stealth legislation, demands ACTA documents:
http://press.ffii.org/Press_releases/FFII_opposes_stealth_legislation%2C_demands_ACTA_documents

* Council letter refusing to release ACTA documents:
http://action.ffii.org/acta/Analysis?action=AttachFile&do=get&target=08-1835en.wes.ws-jj.doc
http://action.ffii.org/acta/Analysis?action=AttachFile&do=get&target=08-1835en.wes.ws-jj.pdf

* FFII ACTA analysis:
http://action.ffii.org/acta/Analysis

* Documents released by Canadian government:
http://www.michaelgeist.ca/component/option,com_docman/task,doc_download/gid,21/

* Open letter by more than 100 public interest organizations:
http://www.essentialaction.org/access/index.php?/archives/173-Secret-Counterfeiting-Treaty-Public-Must-be-Made-Public,-Global-Organizations-Say.html
(You will find more information here on concerns that ACTA may undermine
access to low-cost generic medicines.)

* ACTA documents on the Council website:
http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&typ=Advanced&cmsid=639&ff_COTE_DOCUMENT=&ff_COTE_DOSSIER_INST=&ff_TITRE=anti-counterfeiting+trade+agreement&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=&dd_DATE_DOCUMENT=&dd_DATE_REUNION=&dd_FT_DATE=&fc=REGAISEN&srm=25&md=100&ssf=

* Electronic form on the Council website to request documents:
http://register.consilium.europa.eu/servlet/jsp/MailAccessPrivacy.jsp?&lang=EN&cmsid=928

* Permanent link to this press release:
http://press.ffii.org/Press_releases/EU_Council_refuses_to_release_secret_ACTA_documents


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Contact
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Benjamin Henrion
FFII Brussels
+32-2-414 84 03
+32-484-566109
bhenrion at ffii.org
(French/English)

Ante Wessels
+ 31 6 100 99 063
ante at ffii.org
(Dutch/English)


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FFII confirmatory application letter
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Thank you for your reply informing us of the inability of the General  
Secretariat to grant access to the following documents:

* Documents 12875/08, 13448/08 and 13750/08: working documents from  
the Commission Services concerning the Anti-Counterfeiting Trade  
Agreement.
* Documents 13382/08 and 13949/08: notes from the Presidency to  
Delegations concerning the Plurilateral Anti-Counterfeiting Trade  
Agreement.
* Document 13637/08 (RESTREINT UE): an outcome of the consultation of  
the Justice and Home Affairs Counsellors on 26 September 2008  
concerning the Plurilateral Anti-Counterfeiting Trade Agreement - 3rd  
negotiating session 8-10 October 2008, Tokyo, Japan.

The given reason is that "Release of these documents would weaken the  
position of the European Union in these negotiations and might affect  
relations with the third parties concerned."

Please find our confirmatory application herewith. We would appreciate  
if it could be made fully public in the Council's Register of documents.


The European Union and its member states are built on the concept of a  
representative democracy. As the European Court of Justice ruled in  
the recent Turco case (joined cases C-39/05 P and C-52/05 P) on public  
access to legislative proposals and preparatory texts:

"Openness in that respect contributes to strengthening democracy by  
allowing citizens to scrutinise 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."

The ACTA is a so-called "trade agreement". While technically it is  
therefore not a legislative proposal, its acceptance will nonetheless  
lead to legislative and executive obligations for the undersigning  
parties. Hence, indirectly it will have the same effect as a  
legislative proposal. Simply calling it differently and using  
different negotiation procedures cannot be used as an excuse in a  
democratic society to get around all transparency principles and  
requirements of said society.

If, as currently planned, the agreement will only be made public once  
all parties have already agreed to it, none of the EU's national  
parliaments nor the European Parliament will have been able to  
scrutinise its contents in any meaningful way. We believe this to be a  
gross violation of the basic democratic principles the EU is supposed  
to stand for. The argument that public transparency regarding "trade  
negotiations" can be ignored if it would weaken the EU's negotiation  
position is particularly painful. At which point exactly do  
negotiations over trade issues become more important than democratic  
law making? At 200 million euro? At 500 million euro? At 1 billion  
euro? What is the price of our democracy?

And when exactly do relations with third parties become more important  
than the relations with the EU's own citizens? Only when there is no  
upcoming referendum on a Constitutional Treaty? Are we only useful as  
a large consumer base that can be used as trading goods during trade  
negotiations in other times?

Heaven forbid that these consumers turn out to be also citizens that  
want to have a say in what their buying power is being exchanged for.  
After all, they might think that criminalising themselves in case they  
put a home movie of their children dancing to Britney Spears' latest  
song on Youtube might not be such a good idea. Paying higher  
subscription fees for Internet access so that Internet Service  
Providers can install filtering devices resulting in lower speeds and  
censored web access may not sound very attractive either. And neither  
does giving patent trolls free reign, with compliments of the various  
governments.

In short: which overriding trade interests justify the complete and  
utter disdain for direct public and parliamentary scrutiny over the  
negotiations at hand? And at which point exactly do trade interests  
start taking precedence over democratic and transparent law making?

There is no such point. The Institutions know that the legislative  
process in the EU has to be open. Our negotiation partners know this  
too, or should have been informed. If our negotiation partners are  
uninformed about it, if openness could impede the proper conduct of  
the negotiations, the negotiation mandate is fundamentally wrong.  
However painful, the secrecy has to be renegotiated first. It has to  
go out.

That should not be a problem. The Commission asserted that it would  
not go beyond the status quo, the content should be uncontroversial.  
And international intellectual property agreements have traditionally  
been conducted in a more open and transparent manner. A rollback of  
democracy is not needed nor acceptable.

Sincerely yours,
Ante Wessels
FFII IPRED2 / ACTA workgroup

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About the FFII
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The FFII is a not-for-profit association active in over fifty  
countries, dedicated to the development of information goods for the  
public benefit, based on copyright, free competition, and open  
standards. More than 850 members, 3,500 companies and 100,000  
supporters have entrusted the FFII to act as their voice in public  
policy questions concerning exclusion rights (intellectual property)  
in data processing.




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