One of the most dispiriting aspects of the ACTA saga is that practically everything has been conducted behind closed doors. What we know is largely from leaks and a few, costive hints from officials when they deign to let us little people peak behind the curtain for a millisecond or two.
But it looks like this arrogant approach has backfired. For it was even extended to include MPs and MEPS, who were excluded not only from any kind of oversight, but even any details of what was going on. And they have now woken up to the fact that they – and democracy - are being bypassed in this process. That on its own wouldn't make much difference to the games being played by the ACTA negotiators were it not for the fact that under the Lisbon Treaty that came into force at the end of last year, the European Parliament now has a far larger role to play in European politics.
Hence the significance of the rather splendid vote in the European Parliament yesterday on a “Motion for a resolution on Transparency and State of Play of ACTA negotiations”: 633 in favour, 13 against. Here are some of the key passages:
F. whereas, according to documents leaked, the ACTA negotiations touch, among others, on pending EU legislation regarding the enforcement of IPRs (COD/2005/0127, Criminal measures aimed at assuring the enforcement of intellectual property rights, (IPRED-II)) and the so-called "Telecom Package", and on existing EU legislation regarding E-Commerce and data protection,
G. whereas the ongoing EU efforts to harmonise IPR enforcement measures should not be circumvented by trade negotiations which are outside the scope of the normal EU decision-making processes,
H. whereas it is crucial to ensure that the development of IPR enforcement measures is accomplished in a manner that does not impede innovation or competition, undermine IPR limitations and personal data protection, restrict the free flow of information, or unduly burden legitimate trade,
I. whereas any agreement reached by the European Union on ACTA must comply with the legal obligations imposed on the EU with respect to privacy and data protection law, as notably set forth in Directive 95/46/EC, in Directive 2002/58/EC and in the jurisprudence of the European Court of Human Rights and of the Court of Justice,
J. whereas the Treaty of Lisbon is in force since 1 December 2009,
K. whereas as a result of the entry into force of the Lisbon Treaty, the Parliament will have to give its consent to the ACTA Treaty text, prior to its entry into force in the EU,
L. whereas the Commission committed itself to provide immediate and full information to the European Parliament at every stage of negotiations on international agreements
Or, in other words, we have the power to block this, and this is what we want:
1. Reminds that the Commission has since the 1 December 2009 the legal obligation to immediately and fully inform the European Parliament at all stages of international negotiations;
2. Expresses its concern over the lack of a transparent process in the conduct of the ACTA negotiations which contradicts the letter and the spirit of the TFEU; is deeply concerned that no legal base has been established before the start of the ACTA negotiations and that no parliamentary approval has been asked for the mandate;
3. Calls on the Commission and Council to grant public and parliamentary access to ACTA negotiation texts and summaries in accordance with the Treaty and the Regulation 1049/2001 on Public Access to Documents;
- note the key word “public”, there -
5. Stresses that, unless the Parliament is immediately and fully informed at all stages of the negotiations, Parliament reserves its right to take suitable action, including bringing a case before the Court of Justice in order to safeguard its prerogatives;
6. Calls on the Commission to conduct an impact assessment of ACTA's implementation on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, and on E-Commerce, prior to any EU agreement to a consolidated ACTA treaty text, and to timely consult with Parliament about the results of this assessment;
and concludes with some very specific demands:
9. Urges the Commission to ensure that the enforcement of ACTA provisions - especially its provisions on copyright enforcement procedures in the digital environment - are fully in line with the acquis communitaire; demands that no personal search is undertaken at the EU borders and requests full clarification of any clauses that would allow for warrantless searches and confiscation of information storage devices, such as laptops, cell phones and MP3 players, by border and customs authorities;
10. Considers that in order to respect fundamental rights such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed Agreement must refrain from imposing any so called "three strikes" procedures, in full respect of the decision of Parliament on article 1.1b in the (amending) Directive 2009/140/EC that calls to insert a new para 3 a to article 1 Directive 2002/21/EC on the matter of "three strikes"
11. Emphasizes that privacy and data protection are core values of the European Union, recognised in Article 8 ECHR and Articles 7 and 8 of the EU Charter of Fundamental Rights, which must be respected in all the policies and rules adopted by the EU pursuant to Article 16 of the TFEU;
These are incredibly strong statements, not least because they home in on the really sensitive – and bad – aspects of ACTA, and therefore offer some hope that they might now be remedied.
Of course, we are entering uncharted waters here, because it's only recently that the European Parliament has gained its new powers. Just how the other arms of the European Union political machinery will react remains to be seen – to say nothing of how the other ACTA participants will respond. But there's not doubt that something major has happened here, and that we are witnessing a new stage of the ACTA saga – call it ACTA 2....
I'm often urging readers of this blog to write to their MEPs to complain about this or that proposal or development, so it seems appropriate to urge you now to write to them with congratulations for this latest result. At the very least it should bolster their new-found independence, and encourage them to stand up for us and democracy. Here's mine:
This is just a quick note to thank you and your colleagues in the European Parliament for voting so overwhelming in favour of yesterday's motion on “Transparency and State of Play of ACTA negotiations”. I think this is really a very important moment for transparency and European democracy. In the matter of ACTA and elsewhere, I urge you to continue to stand up for the citizens of Europe.