De Gucht responds to MEP Françoise Castex. Says ACTA is binding agreement, consistent with EU ‘acquis’

Commissioner Karl De Gucht of DG-Trade has responded to a November 3, 2010 MEP question by Françoise Castex, regarding the binding nature of ACTA (See below for copy of the Castex question). De Gucht says the ACTA is “a binding international agreement on all its parties, as defined and subject to the rules of the Vienna Convention on the Law of Treaties.” De Gucht does not say, one way or the other, that ACTA is consistent with US law, and he acknowledges that ACTA will likely require changes in criminal statutes for some EU member countries, but says these provisions were negotiated by the Member States themselves, and are not subject to EU jurisdiction.

De Gucht does not address the issue of several clear inconsistencies between US law and ACTA (Such as the issues raised here). Among other things, De Gucht does not mention that the United States has yet to ratify the Vienna Convention on the Law of Treaties, or that USTR repeatedly describes ACTA as an executive agreement that does not require Congressional approval.

De Gucht reportedly lobbied Castex extensively to withdraw her question, before sending this rather shallow reply.

Parliamentary questions
15 December 2010
Answer given by Mr De Gucht on behalf of the Commission

The Anti-Counterfeiting Trade Agreement (ACTA) is a binding international agreement on all its parties, as defined and subject to the rules of the Vienna Convention on the Law of Treaties (1969).

This is without prejudice to the fact that different provisions in ACTA define different levels of commitment by the ACTA members. Some provisions are impertative or mandatory — often using the word ‘shall’ — while others are optional, using expressions such as ‘Parties may’, ‘shall endeavour’ or ‘shall encourage’ and others still, allow for a certain level of flexibility or adaptation to existing domestic legislation, by introducing concepts such as ‘as appropriate’ or ‘consistent with a Party’s law’. This is common practice both in international treaties and in EU legislation.

In the case of the European Union, the Commission has repeatedly stressed that the content of ACTA is either in line or less demanding than the EU acquis, therefore the Agreement is already fully implemented by the current EU legislation. This means that ACTA will not require the adoption or modification of EU legislative acts. As far as the Commission is aware, the United States government has issued similar statements, which should not be interpreted as meaning that US laws will be inconsistent with ACTA.

On one area covered by ACTA on which there is no EU acquis, i.e. penal enforcement, it is possible that some Member States may need to adapt domestic legislation to comply with commitments they have undertaken in the negotiation of the ACTA section on penal enforcement. This section was negotiated by the rotating EU Presidency on the behalf of the Member States. However, the Commission wishes to stress that this does not concern EU legislation, since penal enforcement of Intellectual Property Right infringements is an area that is not yet harmonised in the European Union, and is still subject to the domestic legislation of Member States. In other words, there is no ‘EU acquis’ in this area.

The original question is here:

Parliamentary questions
3 November 2010
Question for written answer to the Commission
Rule 117
Françoise Castex (S&D)

Subject: ACTA
Article 1.2 of the proposed Anti-Counterfeiting Trade Agreement (ACTA) states the following:

‘Each Party shall be free to determine the appropriate method of implementing the provisions of this Agreement within its own legal system and practice.’

At recent meetings in Washington the US Trade Representative has told other US agencies, NGOs and legislators that ACTA is not binding and that its Article 1.2 allows for complete flexibility in respect of any US legal provision that might contradict ACTA.

Indeed, Articles 2.2 and 2.X of ACTA, which deal with damages and injunctions respectively, are at odds with the ‘US Affordable Care Act’, which places clear limits on remedies for infringements of patents on medicines. Nevertheless, the US authorities deny that ACTA requires a change in US law.

Could the Commission clarify to what degree ACTA is a binding or voluntary agreement, given that the US apparently does not believe its laws must be consistent with ACTA? Can this be interpreted as meaning that EU Member States as well need not change any item of their legislation which is not consistent with ACTA?

If this is the case and ACTA is not legally binding on the EU and the US, is it then only intended to be used as a ‘point of reference’ for third countries negotiating free trade agreements with the EU?