Anti-Counterfeiting Pact Referred to European Court of Justice

22 February 2012

EU Trade Commissioner Karel De Gucht announced today that the controversial Anti-Counterfeiting Trade Agreement (ACTA) will be referred to the European Court of Justice - the EU's highest court - to verify its compatibility with the 27-country bloc's fundamental rights and freedoms, putting the pact's ratification process temporarily on hold.

ACTA is a plurilateral trade pact seeking to strengthen global standards for the enforcement of intellectual property rights in order to combat counterfeiting and piracy.

ACTA detractors fear that some of the agreement's provisions, which go beyond the minimum standards set by the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), may have a detrimental effect on access to medicines and fundamental freedoms in the digital environment.

The EU's signature of the treaty in January has sparked protests throughout the European continent. The mounting controversy has heightened speculation about whether the European Parliament will ultimately ratify the pact (see Bridges Weekly, 1 February 2012).

Recently, several EU member states - whose signature and ratification are also needed individually for the agreement to be adopted by the EU as a whole - decided to put on hold their domestic procedures to leave room for further discussions on the pact (see Bridges Weekly, 15 February 2012).

At present, the agreement has been signed by nine of its eleven negotiating parties, namely Australia, Canada, Japan, South Korea, Morocco, New Zealand, Singapore, the United States, and the EU.

ACTA will become legally binding only after Japan - the depositary of the agreement - receives six ratification instruments.

EU hopes referral will provide legal "clarity"; some not convinced

In a statement on Wednesday, De Gucht explained that the Commission is "planning to ask Europe's highest court to assess whether ACTA is incompatible - in any way - with the EU's fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property."

The referral "will allow for Europe's top court to independently clarify the legality of this agreement," he added.

In explaining this decision, the EU Trade Commissioner expressed his understanding for the concerns over the impact the treaty may have on fundamental freedoms. However, De Gucht stressed that "ACTA will change nothing about how we use the internet and social websites today, since it does not introduce any new rules."

"ACTA only helps to enforce what is already law today," the EU trade chief added.

The move drew criticism from some quarters, however. La Quadrature du Net - an advocacy group whose work centres on the rights of internet users - claimed that "this move aims to make the ACTA discussion a mere legal issue, when the main concerns are political by nature."

"No legal debate can fix ACTA or give it a legitimacy that by design it cannot have," it insisted.

Stressing that the debate about ACTA must be "based upon facts and not upon the misinformation," De Gucht expressed his hope that the referral to the ECJ would bring about clarity that should "help support a calm, reasoned, open and democratic discussion" on ACTA at the European level.

The European Parliament is expected to vote on the agreement in June.

ICTSD reporting; "EU seeks legal opinion on global copyright pact," REUTERS, 22 February 2012.

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