Answer given by Mr De Gucht on behalf of the Commission
1. The Commission does not share the Honourable Member’s views as regards lack of transparency in the conduction of the ACTA negotiations. Since the launch of negotiations (June 2008), the Commission has continuously informed the public about the objectives and general thrust of the negotiations, including the summarising of reports after every negotiation round. At the request of the Commission, the negotiating text was released for the first time in April 2010. The latest version was published on 6 October 2010.
Furthermore, the Commission organised three stakeholder conferences on ACTA which were open to all — citizens, industry, NGOs and press.
Additionally, the Commission kept the Parliament regularly informed, both at the Plenary (which the Member of the Commission responsible for Trade has addressed 3 times in the last 8 months) and through the INTA (International Trade) Committee. The Commission has provided dedicated briefings to interested Members of the Parliament on all aspects of the negotiations, after each negotiating round since March 2010.
Regarding the first question about whether ACTA qualifies as a trade agreement, the issue that needs to be settled is under which competences the Union can potentially ratify the Agreement. It is clear that the EU's competence under the common commercial policy (Article 207 TFEU), which includes ‘the commercial aspects of intellectual property’, provides an EU competence for the matters regulated in ACTA. In this sense, therefore, ACTA can be considered a ‘trade’ agreement.
ACTA does not require the introduction of any modification of EU legislation and will not require any legislative implementation in Europe. At the same time, it builds upon the main international standards, which are set by the Agreement on Trade- Related Aspects of Intellectual Property Rights, which is one of the World Trade Organisation's treaties. For these main reasons, it was negotiated under a general trade heading, but with the full participation of all competent Commission services.
The penal enforcement provisions were negotiated by the rotating Presidency on behalf of Member States.
2. As regards transparency, trade agreements, based on Article 207 TFEU, are subject to the same rules on transparency as applicable to other negotiations, but Article 207 requires that the Parliament be kept fully informed. International negotiations are always subject to a certain degre of confidentiality because the parties need a minimum level of confidentiality to feel comfortable enough to make concessions or to try different options.
3. As explained in the response to the first question, ACTA is a trade agreement. The fact that it falls under Article 207 means that the standard rules on ratification apply. The Commission will need to formally decide whether to propose the agreement for ratification, the Council will need to decide whether to sign and conclude the agreement, and the Parliament will be required to give its consent. To the extent that the agreement is mixed, i.e. it concerns both EU and Member States' competences, it will require ratification by the Member States.
4. The document ‘Maintaining Confidentiality of Documents’ reflects the content of an informal agreement among the ACTA Parties expressing the understanding that intergovernmental negotiations dealing with issues that have an economic impact, may not necessarily take place in public and that negotiators are bound by a certain level of discretion.
5. Since this issue is currently the object of a court case lodged by an Member of the European Parliament against the Commission, the Commission does not wish to address the question in more detail at this stage.
However, the Commission would like to refer the Honorable Member to a recent decision by the European Ombudsman(1) concluding that the refusal of the Council to publicly disclose certain documents related to the ACTA negotiations was justified, as making them public would have a negative effect on the prevailing climate of confidence in the negotiations, and that open and constructive cooperation might be hampered.