Impact on EU acquis of anti-counterfeiting trade agreement
16.2.2011
Question for written answer E-001812/2011
to the Commission
Rule 117
Lidia Joanna Geringer de Oedenberg (S&D) , Françoise Castex (S&D) , Catherine Trautmann (S&D) and Stavros Lambrinidis (S&D)
The primacy of international agreements concluded by the EU over secondary law requires the European Court of Justice to interpret secondary law as much as possible in conformity with these agreements. This is also valid for mixed agreements and is independent from recognition of ‘direct effect’. Therefore, once ratified, the ACTA will become a source of EC law and will be used by the ECJ in the course of preliminary rulings for interpretation and validity of secondary law.
In this context, it is of the utmost importance that the European Parliament be accurately informed as to the legal consequences of ACTA for the EU acquis, before giving its consent in accordance with Article 216 of the Treaty.
There still seems to be some disagreement over these consequences between the Commission — which insists that ACTA is fully compatible with the harmonised EU framework on intellectual property rights enforcement — and many legal experts, some of whom have issued an opinion (coordinated by the Institute of Legal Informatics in Hannover), highlighting numerous incompatibilities of ACTA with our legislative framework. The opinion will be sent to the EU institutions in the next few days.
Is the Commission aware of the abovementioned opinion and if so, how does it evaluate it?
More specifically, could the Commission comment on two particular points:
- 1.As far as civil enforcement measures are concerned, how does the Commission explain different formulations of provisions concerning the level of damages for infringements of intellectual property rights, where ACTA adds additional criteria which are not provided for under Directive 2004/48/EC: market price or suggested retail price to be used when establishing the level of damages (Article 9(1)); and would they be cumulated with the infringer’s profit (Article 9(2)), thus raising the amount of damages in comparison with the current situation?
- 2.How does the Commission want to ensure that provisions regarding border measures dealing with all kinds of infringements of intellectual property rights — not solely counterfeited goods — will not impede and delay the legal movement of medicines under the principle of parallel movement of goods and exhaustion of rights?
OJ C 294 E, 06/10/2011