Exasperated by the secrecy surrounding the international negotiation of an Anti-Counterfeiting Trade Agreement (ACTA) ⁽¹⁾, and the fragmented information available, MEPs are starting to make threats. In a resolution adopted by a large majority, on 10 March in Strasbourg, they urge the European Commission to increase “transparency,” failing which they could refer the matter to the EU Court of Justice. The day before, Trade Commissioner Karel de Gucht had tried to be reassuring, saying he understands these “concerns” and “is doing his best” to remedy them.

The Lisbon Treaty has also changed rules on the information front, obliging the Commission to “inform Parliament immediately and fully at every stage of international negotiations”. The EP, the European Data Protection Supervisor (EDPS) and the telecoms sector have been critical of the opacity of the talks, launched in 2008, on this multilateral agreement (the seventh and latest round was held in Mexico, in January, and another is set for New Zealand, in April).

Things do not seem to be improving, however, although the agreement is due to be concluded this year and the EP has to issue its assent. “Immediate and complete public access to all relevant ACTA documents is essential. Access by MEPs in a secure room in strict conditions of confidentiality is unacceptable,” argued Sophie In’t Veld (ALDE, Netherlands), who denounces the Council’s “systematic refusal”.

Commissioner Karel de Gucht (Belgium) recapitulated the different efforts being made to increase transparency (publication of guidelines, reports on the rounds, DG Trade documents, debate in EP committee, public conferences). “I can understand that this is not enough to give you a clear idea of where we are in the negotiations,” he stated. Although confidentiality is normal in trade negotiations, some negotiators do not wish to publish the documents earlier, expressing “strong opposition” to this practice but “incapable of unilaterally breaking a confidentiality commitment”.

“If we give in on the EP’s right of scrutiny, it won’t be worth fighting on other subjects. This is a fundamental political issue,” French Socialist Kader Arif told the press ahead of the vote approving the resolution by 613 to 13, with 16 abstentions.

The EP’s general opinion is nevertheless not to decry an anti-counterfeiting agreement.

GRADUATED RESPONSE

Concerns focus in particular on the determination of some of the negotiating countries to push through measures on the prevention and sanctioning of online piracy. In their resolution, MEPs voice concern about fragmented information on “body searches at EU borders,” “searches without mandates” and the “confiscation by border and customs authorities of data storage devices, like portable computers, mobile phones and MP3 players”. They also urge the Commission to reject the introduction of the “three-phase graduated response” (the system of cutting off the connection of internet pirates after two written warnings). “Different European countries have different approaches and we want to keep this flexibility” but “the EU does not support and cannot accept ACTA creating an obligation to disconnect internet users because of illegal downloading,” assured De Gucht.

According to Arif, in the field of medicines, laboratories are “lumping together counterfeit drugs and generic drugs,” although generics will be increasingly necessary, especially in the poor countries. Here, too, the commissioner promised to see what could be done.

⁽¹⁾ The ACTA is being negotiated by the United States, the EU, Australia, Canada, Japan, Mexico, Morocco, New Zealand, South Korea, Singapore, Switzerland, but not China, the country of origin of half the counterfeit goods in the EU.