EU trade commissioner Karel De Gucht says referring ACTA to the European Court of Justice will "cut through the fog of uncertainty" around the treaty. Yves Logghe/AP

European Court of Justice asked to rule on legality of ACTA treaty

The EU’s trade commissioner Karel De Gucht wants to see whether the anti-counterfeiting rules are in breach of EU freedoms.

THE EUROPEAN UNION’S trade commissioner has asked its highest legal authority to rule on whether the controversial Anti-Counterfeiting Trade Agreement (ACTA) is in breach of EU law.

Karel De Gucht, the Belgian in charge of European international trade policy, said he and the other 26 commissioners had “discussed and agreed in general” with his proposal to ask the European Court of Justice to rule on the treaty.

The Luxembourg-based court will be asked to rule on whether the controversial treaty, which has provoked worldwide outcry, might pose a legal risk to the rights of European citizens and businesses.

Specifically, the court will be asked to examine whether ACTA is “incompatible – in any way – with the EU’s fundamental rights and freedoms, such as freedom of expression and information or data protection and the right to property in case of intellectual property.”

Although the European Council has already adopted ACTA on a unanimous basis, individual member states cannot proceed to ratify the agreement before the European Parliament approves the treaty itself.

MEPs are likely to vote on the matter in June, but it is now expected that this vote would be pushed back to the autumn if the ECJ has not issued its ruling by that time.

“I believe the European Commission has a responsibility to provide our parliamentary representatives and the public at large with the most detailed and accurate information available,” the commissioner said.

“So, a referral will allow for Europe’s top court to independently clarify the legality of this agreement.”

De Gucht said he shared the concern expressed by European citizens about the potential ramifications of the deal, which requires individual countries to offer equal protection and enforcement procedures against digital copyright infringement as they do to stop the spread of counterfeited physical goods.

Specifically, ACTA requires participating countries to force Internet Service Providers (ISPs) to disclose a user’s information to a copyright holder, where the latter has a sufficient claim that the user is breaching their copyright.

It also says member states will have to offer “effective legal remedies” to ensure that anti-theft measures – such as the Digital Rights Management (DRM) protection on purchased music files – cannot be circumvented.

‘Change nothing’

De Gucht insisted that the treaty would, however, “change nothing about how we use the internet and social websites today” because it did not introduce new copyright rules, but merely help to enforce what was already in plcae.

“As I have explained before the European Parliament on several occasions, ACTA is an agreement that aims to raise global standards of enforcement of intellectual property rights. These very standards are already enshrined in European law,” he said.

What counts for us is getting other countries to adopt them so that European companies can defend themselves against blatant rip-offs of their products and works when they do business around the world.

ACTA will not censor websites or shut them down; ACTA will not hinder freedom of the internet or freedom of speech.

Let’s cut through this fog of uncertainty and put ACTA in the spotlight of our highest independent judicial authority: the European Court of Justice.

The agreement is aimed at clamping down on the trade of counterfeit consumer and electronic goods, which the OECD believes was worth some $200 billion in 2007 – the equivalent of around 2 per cent of all legal trade worldwide that year.

Ireland formally signed the ACTA treaty at a ceremony in Japan on January 26, but the treaty cannot take effect without ratification by the Oireachtas, which itself requires the European Parliament to sign off on the legislation first.

An Irish government spokesperson has previously said that Ireland believes the provisions of the treaty are already accounted for in Irish law, and that it does not expect to have to introduce any new legislation.

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