Smooth Criminal Harmonisation — ACTA, EU And IPR Enforcement

By Lassi Jyrkkiö

Anything one can consider as politically cool from an EU perspective, ACTA (Anti-Counterfeiting Trade Agreement, the multilateral treaty to combat counterfeiting and piracy) negotiations have got it all: the internet, the USA, large potential for media exposure and a hitherto Nixonian element of secrecy balanced by a flow of thrilling documents leaked by generous deep-throats.

Thus it’s hardly a surprise that during the past few months, being horrified – sometimes on the basis of irrational arguments – about this secretly negotiated treaty has superseded SWIFT as the fashionable cross-party pastime in Brussels.

At the heart of all the ACTA anxiety is the hazard of policy laundering or legislation through the back door. Simply put: can we as Europeans envisage one morning “waking up” to our legal reality having been transformed via ACTA?

The Commission, the EU representative in the negotiation table, has replied in a slogan-like manner that they will not go beyond acquis communautaire, the total body of EU law. In other words: nothing will be touched, the law in EU will remain unaffected. The rest of the world might adjust to the EU’s position but hey, that’s their business.

While the Commission keeps reiterating this respect to acquis mantra, it has been usually more silent about its legislative interpretation of a peculiar part of ACTA, namely that of criminal enforcement of IPR. Yet apparently, as the Commission’s chief negotiator Luc Devigne stated – or let slip – on a hearing on 22 March, their perception is that: “We [the EU] have no acquis” on the matter.

This inventive logic is based on the fact that the issue has so far not been harmonised EU-wide via a directive or a framework decision. Legal harmonisation through ACTA would thereby be permitted as that would not entail going beyond the acquis.

This also explains the somewhat misleading claims by Mr. Devigne that as “a first guiding principle” there will be “no harmonisation of substantial law” – as opposed to enforcement – of IP through ACTA.

In the ACTA negotiations, the criminal enforcement matter is considered as a separate “island” and will – at least on paper – not be negotiated by the Commission but by the Council Presidency on behalf of the member states.

It’s fitting to keep in mind that in 2005 there was an attempt for an equivalent piece of legislation, but the notorious directive in question, often called IPRED2, has been stalled for years due to problems with its legal basis. However now after Lisbon, EU-wide legislation on criminal enforcement is a matter falling into the shared competence of the Council and European Parliament.

Nonetheless, no mandate for these negotiations has at any point been requested from the Parliament. Hence, the Council is now negotiating alone on legislative matters where the Parliament should be the co-lawmaker. But what kind of criminal enforcement legislation is the Council actually aiming for?

Officially this is classified information as public access to the content of this mandate (granted in April 2008) would supposedly hinder EU’s negotiating position – a somewhat suspicious claim in the context of de facto harmonisation of criminal enforcement measures, as opposed to actual trade agreement matters like customs tariff bargaining. This interpretation is also questionable from the point of view of the current EU law on public access to documents. And as the Parliament reminded in its recent resolution; it should now be “fully and immediately informed” throughout all international negotiations.

Despite the diverse official unavailability of the mandate, the infamous leaks on the current consolidated ACTA text illustrate that the EU negotiators are now evoking incorporating the content of IPRED2 into ACTA. They also give evidence that the EU negotiators are in reality applying the strange logic deriving from the non-existing acquis as presented above.

Among other problems, the leaks show – and as Knowledge Ecology International has pointed out – that the EU is introducing criminal penalties for “inciting, aiding and abetting” IPR infringements.

It will probably be claimed out loud at a later stage that the harmonisation of the criminal enforcement part of ACTA, including this provision on secondary criminal liability, will not change the de facto legal situation in member states. To verify this claim, it would be important to have access to the negotiation mandate. But in any case an EU-wide harmonisation via ACTA would make the status quo irreversible.

An interconnected visible concern from the leaks is the definition of “commercial scale” as the prerequisite for criminal liability. The current wording in the consolidated text astonishingly includes infringements without even an indirect motivation of financial gain. The Council’s final position on the issue remains to be seen but the one in the leak is surely a stance the current Parliament will never accept.

Indeed, despite the current secrecy and regardless of what the final text will look like, it’s appropriate to bear in mind that the Parliament will have the legal right to veto ACTA before the agreement is concluded. At that point, it will be a simple yes-or-no vote as opposed to having real influence on the text, much like the case was with the SWIFT agreement on February. At least that time around the Parliament voiced its furiousness on insufficient involvement on content matters.

In the present situation, given the aforementioned institutional labyrinth complemented by the current post-Lisbon scarceness of expertise on the matter, as well as the lack of transparency, the stream of sexy ACTA conspiracy theories are set to continue until the final vote. Yet it would now be convenient to get also the Council involved in the debate whilst concentrating on the actual policy laundering concern: the purported EU-wide harmonisation of criminal enforcement measures on IPR through a so-called trade agreement.

Lassi Jyrkkiö works in the European Parliament for MEP Christian Engström (Pirate Party / Greens/EFA) an Adjunct Assistant on ACTA. He can be reached at lassi.jyrkkio@gmail.com. The author and the views expressed do not represent Mr.Engström nor any political group.