Christian Engström, Pirat

7 februari 2012

Tory MEP Asks Question on ”Three-Strikes” in ACTA

Filed under: ACTA,English,informationspolitik — Christian Engström @ 11:30
Tags: , ,

British conservative MEP Syed Kamall asks the Commission about three-strikes in ACTA

Syed Kamall is a British Member of the European Parliament in the conservative ECR group. He has asked a very good question to the Commission about three-strikes in ACTA:

Question for written answer P-001085/2012
to the Commission
Rule 117
Syed Kamall (ECR)

Subject:    Anti-Counterfeiting Trade Agreement

I have been contacted by a civil society organisation which tells me that according to the Commission’s summary of its ‘Civil Society Meeting’ on 25 March 2011, ‘many rumours have circulated on “three strikes” measures and other measures restricting the access to internet. It is important to clarify that no such rules were ever proposed by any of the parties involved in the ACTA negotiations.’

The civil society organisation claims that this assertion from the Commission directly contradicts an alleged leak of the digital chapter of ACTA (originally published in March 2010 and reproduced in a European Parliament briefing document), which contains a footnote which proposed disconnection of (presumably ‘alleged’) repeat infringers as ‘an example of such a policy’. The full text of the footnote was:

‘[a]n example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider’s systems or network of repeat infringers’.

1.    Can the Commission either confirm or deny the existence of that footnote in the preparatory works of ACTA?

2.    If it confirms the existence of that footnote, can the Commission point to subsequent preparatory work that confirms that disconnection of end users is not an example of the type or severity of punishment that should be imposed in the proposed private law enforcement foreseen by ACTA?

This is a very good question, and the Commission will not enjoy answering it. To answer the first sub-question, they will either have to admit that they lied about the contents of the March 2010 ACTA draft, or continue to lie about it (despite the fact that the document has been leaked and anybody can read it).

And to answer the second sub-question, they will either have to confirm that disconnection of end users is indeed what is foreseen by ACTA, or come up with some completely new references that nobody has heard of so far.

The answer from the Commission should appear in about 6 weeks in Kamall’s Europarl home page.

While we are waiting for the answer from the Commission, please take the the time to read an op-ed on ACTA by another MEP, Marietje Schaake from the liberal group. The liberal group has not yet formed a group opinion on ACTA, but Marietje Schaake is proof that there are at least some real liberals in that group.

…………

Update: abwmaven explains the background to this question, including a formal question asked by French Socialist Françoise Castex on the importance of preparatory works when interpreting international agreements.

4 kommentarer

  1. Jag förväntar mig tyvärr ett icke-svar från kommissionen. Dvs de kommer besvara frågan utan att besvara frågan.

    Kommentar av Anders S Lindbäck — 7 februari 2012 @ 12:28

  2. And here’s what they’ll say:

    ”The Commission is not at liberty to confirm or deny anything about earlier drafts of the ACTA-agreement since the negotiations were held in private. The Commission feels it is more appropriate to discuss the SIGNED ACTA-agreement rather then some drafts which are no longer applicable. Punishments are and cannot be a part of civil actions against infringements. ”

    Kommentar av Johan Tjäder — 7 februari 2012 @ 12:29

  3. ”The Commission feels it is more appropriate to discuss the SIGNED ACTA-agreement rather then some drafts which are no longer applicable.”

    However they are applicable, as is argued in Question for written answer E-002345/2011 here:

    ”Question for written answer E-002345/2011
    to the Commission
    Françoise Castex (S&D)
    Subject: Access to the preparatory works of the ACTA Treaty
    With regard to the response of 15 December 2010 to my written question on ACTA
    (P-9179/2010), I would like to make the following observations.
    As the Commission has confirmed, the EU has ratified the Vienna Convention on compliance
    with international treaties and the ACTA agreement will be applied in accordance with this
    Convention.
    Article 32 of the Vienna Convention refers to the ‘Supplementary means of interpretation’
    which require access to ‘supplementary means of interpretation, including the preparatory
    work of the treaty and the circumstances of its conclusion, in order to confirm the
    meaning …’ if the text ‘leaves the meaning ambiguous or obscure’.
    In accordance with the Vienna Convention I would like to know whether Parliament will
    have access to the preparatory works of the ACTA Treaty while in the process of formulating
    an opinion and with sufficient time before Parliament gives its opinion on the Treaty?

    E-002345/2011
    Answer given by Mr. De Gucht
    on behalf of the Commission
    (20.4.2011)
    Following the entry into force of the Lisbon Treaty, precise arrangements were made between
    the Commission and the Parliament in order to ensure that the Parliament is fully informed, at
    all stages of trade negotiations, of the evolution of those negotiations, so that at the end, it is
    able to provide its informed consent to the Anti-Counterfeiting Trade Agreement (ACTA). In
    the case of the ACTA negotiations, this included the communication to the Parliament of the
    different versions of the text which were issued after each negotiating round, as well as
    reports of the negotiating rounds. Additionally, in the numerous Commission replies to oral
    and written questions and in its replies to two EP Recommendations and one Declaration,
    there are detailed considerations and explanations about the negotiations at its different stages.
    These documents constitute the key preparatory work of the treaty and provide detailed
    information about the circumstances of its conclusion.
    In addition to providing these preparatory documents, the Commission services have
    provided dedicated briefings to interested Members of the European Parliament on all aspects
    of the negotiations, after the various negotiating rounds and remain available for any
    additional clarifications deemed necessary.”
    http://trade.ec.europa.eu/doclib/docs/2011/april/tradoc_147852.pdf

    It was a great question asked by Françoise Castex, and an inadequate, evasive, and inaccurate answer by Mr. De Gucht.

    The question needs to be referred to the European Court of Justice for legal clarification.

    I don’t think Parliament can have been ”fully informed” and therefore make an ”informed consent” as it does not have ALL the ”preparatory works” which it would requrie to come to a ”fully informed” view on the ‘Supplementary means of interpretation’ on ACTA.

    It should not be left to the Commission to define what ”key preparatory work” is. What ”Key preparatory works” are with regards to ACTA needs to be defined and clarified by the European Court of Justice, for an ultimate legal clarification, and this needs to be done BEFORE a vote on the ratification of ACTA by the EP takes place (mooted as around June 2012).

    Further, yes, the Commission services have provided dedicated briefings to interested Members of the European Parliament, but it is NOT clear that all aspects
    of the negotiations, all ”key preparatory work”, have been provided. The ECJ needs to let the European Parliment know that it has or has not been provided with all ”key preparatory work”, and if they have not all been provided, to rule that they must be provided.

    Kommentar av awbMaven — 9 februari 2012 @ 13:45


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