[ffii] FFII objects to secret European Parliament meeting on ACTA

Ante ante at ffii.org
Wed Nov 9 09:43:49 CET 2011


[ ACTA / Economy / Innovation ]
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FFII objects to secret European Parliament meeting on ACTA
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Brussels, 9 November 2011 -- On 23 November the European Parliament Committee 
on International Trade will discuss ACTA (Anti-Counterfeiting Trade Agreement) 
behind closed doors. In a letter to the Chairman of the committee, Mr Moreira, 
the Foundation for a Free Information Infrastructure objects to the meeting 
being held behind closed doors. Since the publication of the ACTA text, 
discussions on ACTA have to take place in public, according to the FFII 
(Foundation for a Free Information Infrastructure). 

On 23 November the INTA (International Trade) committee will discuss the 
confidential European Parliament legal service's opinion on ACTA. The FFII 
wants the opinion published before the November 23th meeting. There is an 
overriding public interest in disclosure of this document. Keeping it 
confidential would be a violation of the EU Treaties.

According to multiple academic studies ACTA goes beyond the current EU 
legislation, harms access to medicine and violates fundamental human rights. 

According to a European Digital Rights initiative publication, the European 
Parliament legal service concludes that, on the face of it, ACTA appears to be 
in line with current EU law.

FFII analyst Ante Wessels: "The legal service's opinion goes against the 
academic studies, without providing a public justification. It fails to notice 
that ACTA's damages beyond actual loss upset millennia of legal tradition, and 
fails to notice violations of fundamental human rights. The legal service 
shows contempt for the public discussion on ACTA. They seem to fear scrutiny."

In violation of the Treaties, the INTA committee and legal service cultivate 
secrecy, the FFII writes in the letter to the Chairman of the INTA committee. 


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FFII letter to the Chairman of the INTA committee
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FFII objects to secret INTA committee meeting on ACTA

Open letter
to: The Chairman of the European Parliament Committee on International Trade 
(INTA), 

Dear Mr Moreira,

According to the agenda, the Committee on International Trade will discuss 
ACTA (Anti-Counterfeiting Trade Agreement) behind closed doors on 23 November. 
[1] We object to this discussion being held behind closed doors. Since the 
publication of the ACTA text, discussions have to take place in public.

ACTA's predecessor, the TRIPS agreement, killed millions of people. 500 
Million Europeans, and billions abroad, are entitled to full transparency. 

On 23 November the INTA committee will discuss the confidential European 
Parliament legal service's opinion on ACTA. There is an overriding public 
interest in disclosure of this document (compare European Court of Justice 
Turco case). Prior to the meeting, the opinion should be released in a timely 
manner. The committee can then discuss the opinion in public. 

The legal service's opinion goes against the academic communis opinio (see 
below). It fails to notice that ACTA's damages beyond actual loss upset 
millennia of legal tradition and fails to notice violations of fundamental 
human rights. It does not provide a public justification. 

After all the discussion in public on ACTA, in particular after the release of 
the final text, it is hard, or even impossible, to conclude that ACTA does not 
go beyond the current EU legislation and does not violate fundamental rights. 
To convincingly state that ACTA stays in line with current EU legislation and 
fundamental rights, one has to address the prior findings, eliminate the 
doubts, and do this in public. The legal service fails to comply with this 
standard. We suggest to withdraw the legal service's opinion. 

= Prior discussion

Prior to the legal service's opinion, civil society and prominent academics 
analysed ACTA and found that ACTA goes beyond the current EU legislation and 
violates fundamental rights. Health groups pointed out ACTA harms access to 
medicine. The Commission's response to the critique was very weak. In one 
case, the Commission actually even states it insisted ACTA would go further 
than current EU legislation. A study commissioned by the INTA committee 
evaluated the prior discussion, and concluded that ACTA indeed goes beyond the 
current EU legislation. After that, fundamental rights experts confirmed ACTA 
violates a list of fundamental rights. An academic study confirmed ACTA harms 
access to medicine. [2]

Let's take one example. In EU law, damages are based on actual loss suffered, 
including lost profits. ACTA goes beyond actual loss. Civil society, prominent 
academics and the INTA study pointed this out. 

Korff and Brown, fundamental rights experts, conclude: "In our opinion, here 
too ACTA is deficient: without express clarification to the effect that damages 
awarded to right holders must be a reasonable reflection of actual loss, 
equitably assessed by a court (rather than an exaggerated assessment based on 
an unchallengeable but rigged formula), the Agreement violates both the right 
to property and the right to a fair (civil) trial of the defendants." [3]

ACTA's damages beyond actual loss upset millennia of legal tradition. The 
decision to do this, is a grave decision. It should not be taken lightly, nor 
should the importance and the detrimental effects be obfuscated. Even, since 
the decision violates fundamental human rights, it can not be taken. 

= The legal service's opinion

According to a European Digital Rights initiative publication, in response to 
the question about whether ACTA is in line with existing EU legal provisions, 
the legal service explains that the text is open to interpretation but, on the 
face of it, the agreement appears to be in line with current EU law. [4]

This is rather amazing. The legal service goes against the academic communis 
opinio, it fails to notice that ACTA's damages beyond actual loss upset 
millennia of legal tradition and fails to notice violations of fundamental 
human rights.

Reports on the opinion indicate that the legal service did not address the 
prior findings, nor did it eliminate the doubts. The opinion certainly isn't 
public. The legal service shows contempt for the European discourse on ACTA. 
It seems to fear scrutiny. 

There is an overriding public interest in disclosure of this document (compare 
European Court of Justice Turco case). [5]

= The legal service is the Parliament's house lawyer

The legal service is the Parliament's house lawyer. Its task is to defend the 
Parliament's positions in court. The legal service is not an impartial 
organisation. It is not an independent court. Before the legal service's 
opinion was ready, Members of Parliament already expressed their expectation 
that the opinion would state that ACTA is in line with the current EU 
legislation - seen the Academics' Opinion and INTA's own study, a remarkable 
expectation. These Members, and the legal service, did not avoid the 
appearance that the legal service delivered what was asked for. Only 
publication of the opinion may restore the Parliament's credibility.

= Illegal request

On 21 June 2011, the coordinators of the INTA committee decided to ask the 
Parliament's legal service an opinion on ACTA. [6] This decision was illegal 
for two reasons. First, the ACTA text had already been published, the 
discussion should have taken place in public. Second, coordinators can prepare 
decisions, but can not take them.

Withdrawing the opinion may provide the best way out. The INTA committee can 
then ask, after a public discussion, for a public legal service's opinion on 
ACTA, which has to take into account the prior discourse on ACTA. Asking the 
European Court of Justice an opinion on ACTA is a better option. 

= A cultus of secrecy

In violation of the Treaties, the INTA committee and legal service cultivate 
secrecy:

- on 13 July 2010, the coordinators of the INTA committee decided to 
commission an external study on the impact of ACTA on access to medicines,
 
- on 25 October 2010, the coordinators decided to convert the study on "Impact 
of ACTA on Access to medicines (AVC)" into a fully fledged ACTA Impact 
Assessment,
 
- we already mentioned the coordinators' decision to ask the Parliament's 
legal service an opinion on ACTA,
 
- all these decisions were illegal for two reasons. First, the ACTA text had 
already been published, the discussions should have taken place in public. 
Second, coordinators can prepare decisions, but can not take them,

- the Parliament's register and INTA secretariat denied the existence of the 
INTA coordinators' minutes four times, [7]

- the legal service keeps its opinion confidential,

- on 23 November 2011, the INTA committee plans another meeting behind closed 
doors.

Yours sincerely,
on behalf of the Foundation for a Free Infrastructure,

Ante Wessels

This letter on line: http://acta.ffii.org/?p=853

[1] Agenda INTA meeting 23 November:
http://bit.ly/vaHP2z

[2] FFII ACTA analysis:
http://action.ffii.org/acta/Analysis

Opinion of European Academics on ACTA:
http://www.iri.uni-hannover.de/acta-1668.html

European Commission’s services comments to the European Academics’ Opinion on 
ACTA:
http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147853.pdf

FFII: The EU Commission lacks basic reading skills
http://acta.ffii.org/wordpress/?p=598

European Parliament INTA study on ACTA:
http://www.erikjosefsson.eu/sites/default/files/DG_EXPO_Policy_Department_Study_ACTA_assessment.pdf
http://acta.ffii.org/?p=681

Douwe Korff & Ian Brown, Opinion on the compatibility of the Anti-
Counterfeiting Trade Agreement (ACTA) with the European Convention on Human 
Rights & the EU Charter of Fundamental Rights, 2011:
http://rfc.act-on-acta.eu/fundamental-rights

Oxfam Statement regarding ACTA and Public Health:
http://www.oxfamsol.be/fr/IMG/pdf/Oxfam_ACTA_analysis_FINAL.pdf

Public Citizen on ACTA and access to medicine:
http://www.citizen.org/documents/Letter-to-Members-of-the-Committee-on-Legal-Affairs-on-the-ACTA.pdf

Sean Flynn and Bijan Madhani, ACTA and Access to Medicines, 2011:
http://rfc.act-on-acta.eu/access-to-medicines

Internet Society:
http://www.isoc.org/internet/issues/acta.shtml

[3] see above: Douwe Korff and Ian Brown, 2011

[4] European Digital Rights initiative:
http://www.edri.org/edrigram/number9.20/acta-ep-legal-service-opinion

[5] http://action.ffii.org/acta/Analysis#Attachment:_The_Turco_case

[6] INTA coordinators' minutes 21 June 2011 
http://people.ffii.org/~ante/acta/INTA-minutes/Coordinators%27s%20minutes%202011%200621.pdf

[7] European Parliament releases “nonexistent” coordinators’ minutes on ACTA
http://acta.ffii.org/?p=849
http://people.ffii.org/~ante/acta/INTA-minutes/


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Background information
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ACTA is a multilateral agreement which proposes international standards for 
enforcement of copyright, patents and other exclusive rights. In the coming 
months, the European Parliament will have to decide whether to give consent to 
the agreement or not.

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Links
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FFII ACTA blog:
http://acta.ffii.org/

Permanent link to this press release:
http://press.ffii.org/Press%20releases/FFII%20objects%20to%20secret%20European%20Parliament%20meeting%20on%20ACTA


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Contact
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Ante Wessels 
ante (at) ffii.org 
+31 6 100 99 063 

FFII Office Berlin 
Malmöer Str. 6 
D-10439 Berlin 
Fon: +49-30-41722597 
Fax Service: +49-721-509663769
Email: office (at) ffii.org
http://www.ffii.org/ 
 

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About FFII
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The FFII is a not-for-profit association active in twenty European countries, 
dedicated to the development of information goods for the public benefit, based 
on copyright, free competition, open standards. More than 1000 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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