Doubts Linger Over ACTA Compatibilty with European Union Law

IDG News Service — European parliamentarians in the legal affairs committee have once again cast doubt on the efficacy of the controversial Anti-Counterfeiting Trade Agreement (ACTA), but stopped short of declaring it illegal.

Nonetheless doubts linger over whether the agreement can be legally enforced, as the committee has referred the question to the Parliament's legal department. Following a report by the Greens and the European Free Alliance, the committee was asked last week to give an opinion on whether agreement with the U.S. and other countries is compatible with European Union law. The agreement seeks to enforce intellectual property rights and combat online piracy and illegal software.

French Member of the European Parliament (MEP) Franoise Castex said on Monday that she was not sure if the matter needed to go to the European Court of Justice and that the legal department of the Parliament would address the matter.

Unless more countries sign up to the deal, though, the agreement will have little effect on trade in counterfeits, she added. This is a criticism that has been raised many times in the history of the divisive agreement. Many parliamentarians complained that an ACTA that does not include China is not worth the paper it's written on. China accounted for almost 65% of all cases of counterfeit goods seized by E.U. customs in 2009.

MEP Daniel Caspary defended the legality of ACTA, saying: "The Commission has promised during the last months and years that the ACTA text currently on the table, is in accordance to the Aquis (European Union Law), it doesn't hurt the Aquis and I think this is important as we don't have to change the rules," he said.

But this was disputed by the Foundation for a Free Information Infrastructure (FFII). "Apparently, Caspary is not on top of the dossier. European academics concluded ACTA is not compatible with current E.U. legislation, this is confirmed in the International Trade Committee commissioned study on ACTA," said the FFII's Ante Wessels.

There are grave incompatibilities between ACTA and E.U. law that harm start-ups chances of entering markets and competing, Wessels said. Worse, "The situation is so bad that fundamental rights experts conclude ACTA violates the right to freedom to obtain and disseminate information, the right to freedom from unreasonable search and arrest, the right to inviolability of the home, the right to the peaceful enjoyment of one's possessions, the right to property and the right to a fair (civil) trial of the defendants."

The ACTA agreement has been mired in controversy from the beginning due to secrecy imposed by the U.S. and worries that it may not uphold E.U. rules on data privacy. The most controversial paragraph in the final text leaves the door open for countries to introduce the so-called three-strikes rule, which would see Internet users cut off if they continued to download copyright material after receiving two warnings, as national authorities would be able to order ISPs to disclose personal information about customers.

The agreement also requires more extensive policing of the circumvention of technical protection measures than is currently required in international agreements.