[A2k] Unconstitutional aspects of ACTA (EU)

[Ante]

http://action.ffii.org/acta/unconstitutional-aspects

The Anti-Counterfeiting Trade Agreement exceeds the European Union competence.
National Constitutional Courts may invalidate aspects of ACTA.

German Federal Constitutional Court ruling

The recent German Federal Constitutional Court ruling on the Treaty of Lisbon
suggests the German Court may deem parts of ACTA unconstitutional. The German
Federal Constitutional Court emphasises that the Community can not enlarge its
competence itself. With ACTA, the Community exceeds its competence. Like the
French Constitutional Court ruled out the French Hadopi ("three strikes") law,
the German Court (and possibly other national constitutional courts) may rule
out parts of ACTA.

Analysis of the ruling

The Community can not enlarge its competence itself. To enlarge the
Community's competence, a new Treaty has to be written, then ratified.

Under Lisbon, the Council can unanimously decide to move topics from unanimity
to qualified majority, no ratification will be required for this. Normally it
takes a parliament (ratification) to give up a veto, with this procedure
parliaments are not needed.

The German court now rules that in such cases the German representative can
only vote in favor of that, after a law is adopted. This safeguards
parliamentary involvement. The German parliament can stop Germany losing its
veto, can stop losing its influence.

http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html

Implications for ACTA

ACTA is not a shift in competence, like above. But the ruling still is
important for ACTA.

When it comes to criminal matters in ACTA, the member states have a veto. The
FFII has always said the member states have more vetoes. The German court is
well aware of that:

"Accordingly, the Union shall have exclusive competence for the conclusion and
the ratification of international agreements in the context of the common
commercial policy, including those newly incorporated into Article 207.1 TFEU;
the necessity and the possibility an agreement being concluded (also) by the
Member States and the participation of the national parliaments in accordance
with their respective constitutional requirements (Article 59.2 of the Basic
Law) cease to exist." (par 373)

While everyone seems to have forgotten the other vetoes, the Court did not.

The Commission and Council forgetting the other vetoes is like shifting from
unanimity to qualified majority. Something which shouldn't be taken lightly,
according to the German court.

Major Limitations of competence

    * ACTA will relate to trade in cultural and audiovisual services and
educational services. This falls within the shared competence of the Community
and its Member States. Consequently, the negotiation of ACTA shall require the
common accord of the Member States as well. ACTA has to be concluded jointly
by the Community and the Member States. (TEC 133.6)

There is no sign that ACTA will be concluded jointly. National Constitutional
Courts may decide whether respective constitutional requirements are met.

    * The intention expressed in the leaked discussion paper to address non-
commercial acts by civilians does not fall within TITLE IX Common Commercial
Policy. The Community lacks competence. If it would fall within TITLE IX, it
does not fall within "commercial aspects of intellectual property" (TEC133.5),
unanimity in the Council is needed and Parliament has to be consulted. (TEC
133.7)

National Constitutional Courts may decide whether the Community exceeds its
competence.

    * Community action has to be proportional (TEC 5), it is essential to
define the qualification characteristics of the elements of piracy as clearly
and narrowly as possible. At the bare minimum, "infringing item", "commercial
scale" and "intentional infringement" have to be clearly defined.

National Constitutional Courts may decide whether the Community exceeds its
competence.

    * Criminal measures are already mentioned.

Other limitations of competence

For other limitations of competence see the FFII analysis. The European
Parliament's vetoes are mentioned there too.

http://action.ffii.org/acta/Analysis

European Court of Justice

The European Court of Justice may decide on competence issues as well.

Other trade agreements

The above is also true for other EU trade agreements, like the EU - South
Korea Free Trade Agreement.

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vriendelijke groet,
cordialmente,

Ante