ACTA Update VII

One of the widely-recognised problems with ACTA is the lack of transparency surrounding its negotiation. Since I have addressed this issue at length elsewhere, I won't repeat myself here. But it occurred to me that there is another way of...

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One of the widely-recognised problems with ACTA is the lack of transparency surrounding its negotiation. Since I have addressed this issue at length elsewhere, I won't repeat myself here. But it occurred to me that there is another way of looking at transparency, and that is in terms of consultation. In a sense, it's the flip side of transparency.

Now, as a result of my increasingly sad habit of wandering around the dusty backstreets of the European Commission's Web server, I happened upon this home page for what is known as the Secretariat-General, which describes itself as follows:

Our job is to help the European Commission to work smoothly and effectively. We support the whole of the Commission, and in particular the 27 Commissioners, by helping Europe deliver on its promises.

On that home page, there is a link to "Consultation Standards", something I never knew existed, but which turns out to contain some very interesting statements. This document seems to be the latest word on the subject, since it is the only one linked to on the Secretariat page, and contains the following statement at the start:

"The Commission adopted, on 11 December 2002, a communication ‘General principles and minimum standards for consultation of interested parties by the Commission' COM704. General principles and minimum standards apply from 1 January 2003."

So that suggests that what follows is indeed the official list of principles and minimum standards for consultation of interested parties by the Commission. Now, one concern has to be that these principles are all very well, but that the Commission can just ignore them if it wants. Rather handily, this point is raised within the document itself:

Some of those consulted questioned the Commission's decision to set consultation standards in the form of a Commission communication (i.e. in the form of a policy document) instead of adopting a legally-binding instrument. They argued that this would make the standards toothless and the Commission would be unable to ensure the consistency and coherence of its consultation processes.

Well, yes, I'd probably argue that too. But worry not, the Commission insists:

the fear expressed by some participants in the consultation process that the principles and guidelines could remain a dead letter because of their non-legally binding nature is due to a misunderstanding. It goes without saying that, when the Commission decides to apply the principles and guidelines, its departments have to act accordingly.

Well, that's good to know. So, let's take a look at what some of those general principles are.

The Commission is committed to an inclusive approach when developing and implementing EU policies, which means consulting as widely as possible on major policy initiatives.

…

The Commission believes that the processes of administration and policy-making must be visible to the outside world if they are to be understood and have credibility. This is particularly true of the consultation process, which acts as the primary interface with interests in society.

Couldn't have put it better myself.

On the Minimum Standards front, this is particularly important:

Consultation target groups

When defining the target group(s) in a consultation process, the Commission should ensure that relevant parties have an opportunity to express their opinions.

For consultation to be equitable, the Commission should ensure adequate coverage of the following parties in a consultation process:

those affected by the policy

Again, that's clearly common sense: everyone affected by a policy should indeed "have an opportunity to express their opinions".

Of course, it will not have escaped the eagle-eyed reader's attention that not one of the principles and guidelines adopted by the Commission itself has in fact been followed during the ACTA negotiations – no consultation, no visibility – and hence no credibility.

Now, I'm sure that the European Commission, were it minded to respond to this, would quick as a flash say: ah, yes, but you didn't spot that the document also states:

For the purpose of this document 'consultations' means those processes through which the Commission wishes to trigger input from outside interested parties for the shaping of policy prior to a decision by the Commission.

And since the European Commission doesn't wish to trigger input from outside interested parties for the shaping of policy prior to a decision by the Commission on the subject of ACTA – it has already made up its mind and doesn't care what the electorate thinks, thank you very much – then yah, boo, sucks. Well, maybe not in quite those terms, but the spirit is the same.

On the one hand, for the last nine years the European Commission has professed itself eternally wedded to the idea of consultation in order for its policies to be credible. On the other, we have ACTA, which somehow doesn't require that added ingredient of credibility, but can be negotiated in secret and pushed through without discussion.

The European Commission might produce as many formal reasons as it likes as to why European citizens weren't asked for their thoughts according to the 2002 general principles and minimum standards for consultation, and I'm sure they're right – after all they wrote the thing, and will certainly have built in enough get-out clauses to let them do what they want, when they want.

But this misses the point. It's not about the letter of those documents, but the spirit: it's about what is just and democratic for the European people. The European Commission seems to think that it's perfectly fair to commit 500 million citizens to a binding international treaty that imposes a one-sided framework of extremely harsh measures against online copyright infringement, for example, without asking their views; some of us beg to differ. But what do we know? After all, we're just the mugs who pay the politicians' salaries.

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