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Tuesday, 9 March 2010 - Strasbourg OJ edition

15. Anti-Counterfeiting Trade Agreement (ACTA) (debate)
Video of the speeches

  President. – The next item is the debate on the oral question to the Commission by Carl Schlyter, on behalf of the Verts/ALE Group, Daniel Caspary, on behalf of the PPE Group, Kader Arif, on behalf of the S&D Group, Niccolò Rinaldi, on behalf of the ALDE Group, Helmut Scholz, on behalf of the GUE/NGL Group, and Syed Kamall, on behalf of the ECR Group, on transparency and the state of play of the ACTA negotiations (Anti-Counterfeiting Trade Agreement) (O-0026/2010 - B7-0020/2010)


  Carl Schlyter, author. (SV) Mr President, each institution has to defend its role. Parliament is the voice of the people of the EU and must uphold the interests of its citizens. The Commission calls itself the guardian of the treaty, but in this case, it is the principles of transparency, human rights and parliamentary rights that you need to defend. If we are not given access to the documents, none of the EU institutions will be fulfilling its role or meeting our citizens’ expectations.

Some of the Commissioners emphasised in their hearings that Parliament must have access to documents on the same terms as the Council of Ministers, and Parliament expects the Commission to stand by its promises. Many of our citizens are concerned that they are being robbed of their freedoms and rights by the continual torrents of invasive legislation, such as the legislation on data retention, Ipred 1, Ipred 2, SWIFT, and so on. The EU cannot continue to negotiate on ACTA unless its citizens are given an opportunity to be involved in the process.

The main issue today is transparency, although naturally, the content is also sensitive. The EU must clearly indicate that the terms of our participation in the ACTA process are transparency and the defence of human rights and freedoms. Only once we have set out the inalienable rights that exist in a free and open society can we then, within the framework of these rights, fight crime and debate the form that various agreements are to take.

It is an absolutely absurd and unacceptable situation if we have to ask the Commission behind closed doors about the content of the agreements that we are expected to make decisions about. Our citizens want guarantees that their electronic devices will not be searched at borders, that they are entitled to be connected and that criminal sanctions will not be brought in over their heads. We expect you to promise us today full participation in ACTA; if not, I will have to conclude with a classic response: see you in court.


  Daniel Caspary, author.(DE) Mr President, Commissioner, ladies and gentlemen, counterfeiting, smuggling, and the violation of intellectual property rights doubtless pose a huge problem, first of all, for us as the European Union as a whole, but also for many Member States. It is a problem for entrepreneurs, workers and consumers that more and more counterfeit products are also finding their way onto the European internal market. We now estimate that counterfeit goods to the value of around EUR 250 billion are flooding our market. In the best case scenario, if a medicine like the contraceptive pill is counterfeited and does not work – as has recently been said at an event – a woman would simply become pregnant. However, in the worst case scenario, if the medicine does not work, it can be a matter of life and death, and that cannot be in our interests.

We urgently need to do something about the violation of intellectual property rights, smuggling and counterfeiting. It is unacceptable that, in 2008, we confiscated 178 million counterfeit articles at our borders, 20 million of which were dangerous, with more than 50% of these articles coming from China. Therefore, we must take action in this area. The problem is clear: the Treaty of Lisbon entered into force on 1 December. Negotiations regarding ACTA have been going on for three years and therefore we, as the European Parliament, were not nearly as involved in the past as we need to be in the future.

I therefore hope that, in the next few weeks and months, we definitely attain more transparency in this area. We need access to data that clearly tell us what is happening at the moment in the negotiations and what position the European Commission is adopting. The negotiations must continue. We need the successful conclusion of an appropriate agreement. The points of criticism from the various groups are sufficiently well known in this House. In the interests of workers, employers, industry and consumers, I hope that we reach a meaningful conclusion, but that in arriving at this conclusion, we take account in the negotiations of the existing acquis communautaire and do not go beyond it.


  Bernd Lange, deputising for the author.(DE) Mr President, Commissioner, I have three questions on my mind. The first is, why are we still lacking transparency when the Treaty of Lisbon has been in force since 1 December and we have had an interinstitutional agreement with the Commission since 10 February? I cannot understand why it is still the case that the Council is sitting at the table as an observer in the negotiations, Parliament is not involved and the documents are not publicly accessible. So why is this, Commissioner?

The second question that is of concern to me is this: who is actually negotiating the ACTA Agreement? This is not being negotiated as some sort of follow-up agreement to TRIPS within the framework of the World Trade Organisation. It is only being negotiated by individual States and – as we hear from the United States – also by powerful economic interests. I ask myself whether, in fact, standards are not being set which will ultimately apply to everyone even though not everyone is sitting round the negotiating table.

The third question that is troubling me, Commissioner, is this: what actually is the substance of the negotiations? In your hearing, you answered my question and assured me that the acquis communautaire was secure. However, when I look at individual papers that have leaked out I unfortunately have my doubts about this. I understand that negotiations are being held, that blocks on the Internet are possible, that providers are to be used, so to speak, to help police the Internet for economic interests, that restrictions on research and science may sometimes be imposed and that some people are even trying to introduce general surveillance systems. I therefore ask myself, where in all this is the acquis communautaire?

There is also the question of compensation. The fact that the inclusion of lost profit in the compensation is being negotiated is not appropriate for our policy.

Of course, my third question, Commissioner, is what is the actual relationship between online and offline? When I read that online and offline are both supposed to represent the digital world, does that essentially mean that there are also to be restrictions and searches of laptops, iPods and MP3 players at borders? Would you please provide answers to these three questions.


  Niccolò Rinaldi, author. (IT) Mr President, Commissioner, ladies and gentlemen, I believe that there is an original sin in the subject that we are debating this evening, and that is the secrecy with which the negotiations have been carried out up to now. This secrecy has also possibly been exacerbated by an imbalance, if it is true that US industries, unlike the European public and institutions, have had access to a series of information resources on the basis of a confidentiality pact. The non­transparency of the negotiations is a problem that we face in other cases as well – we talked about this in the context of the agreement with Korea – and it is something that now, with the entry into force of the Treaty of Lisbon, must end.

It seems to me that this original sin is also the result of an abuse: that of using the fight against counterfeiting to lead other battles as if it were a kind of watchword in the name of which anything is allowed. Moreover, this is certainly an incredibly important battle for a trade power such as the European Union. Commissioner, I am from Venice, a city that you know well, where the regulations on counterfeiting products – I am thinking, for example, of Murano glass – used to be very severe (even extending so far as the death penalty). Therefore, this is definitely something that we must take seriously in an increasingly global economy such as our own.

However, this agreement is giving rise to serious threats, which are alarming the public, and the Commission must, of course, be aware of this. In fact, this issue, which really should be specific to the Committee on International Trade, is becoming less and less so, while the same committee is increasingly doing the work of the Committee on Civil Liberties, Justice and Home Affairs.

We worry about issues relating to freedom of information and of expression via the Internet, the right to privacy and the possible criminal and civil consequences for Internet service providers. There is a sort of red line that should not be crossed, and I would ask the Commission to proceed very cautiously on this matter.

More strictly from a trade point of view, I would like to ask the Commissioner for reassurance that the Anti-Counterfeiting Trade Agreement (ACTA) may not be used to hinder the sale of medicines available at more competitive prices; safe, generic medicines that do not infringe copyright and whose only crime is that they are produced by emerging countries such as India and Brazil and that they may encroach on western pharmaceutical industries.


  Helmut Scholz, author.(DE) Mr President, ladies and gentlemen, Commissioner De Gucht, if you meet with representatives from ten governments in a small group in a back room in order to agree on a global surveillance regulation containing such sensitive chapter headings as ‘enforcement of the law’ and ‘civil penal measures in connection with border controls and the Internet’, you can hardly be surprised if rumours emerge and if questions are raised to which citizens rightly want answers.

I totally agree with the criticism levelled by my fellow Members. However, you need to be aware of the concerns behind the questions from the Committee on International Trade, which have cross-group support, namely, that an agreement that was originally supposed to be about the protection of engineering achievements and patents is now reaching deep into the area of civil rights, the democracy of communication, the decentralised potential for innovation and cultural development and the protection of personal data. However, Articles 7 and 8 of the Charter of Fundamental Rights also govern your negotiations and we will remind you of this continually.

Such an agreement will affect the whole world. However, you are excluding the emerging economies and developing countries, as well as civil society organisations, trade unions and national parliaments from the negotiations – to put it simply, you are excluding the general public in whose service and under whose control you are supposed to be. You are negotiating without a mandate from the European Parliament. You continue to fob us off with two-page summaries of the results of whole negotiating rounds. You refuse to follow the new law and disclose to us the same documents that the Member States receive in relation to these negotiations. If you now claim that the concerns of my group are unfounded, then prove it. Lay the negotiation documents on the table straight away. If you dream of one day receiving the approval of this Parliament for the results of your negotiations, then you ought to learn from the experience of the democratic decision taken against the SWIFT Agreement. All I can say to you is welcome to democracy. This Parliament will no longer permit back-room debates and decisions.


  Syed Kamall, author. – Mr President, I think the Commissioner can see the strength of feeling across Parliament, across all the parliamentary groups, where we are clearly calling, whatever our differences are on different aspects of ACTA and counterfeit trading and also the intellectual property rights, we are all agreed here on the need for greater transparency. I hope that has come across quite clearly.

Commissioner, we are all concerned that when you have negotiations where there is not sufficient transparency – we are not aware of the principles and what our negotiating position is in these talks – then what will happen is that you create a vacuum and, when you create a vacuum, we all know that rumours fill that vacuum. We have seen leaks purporting to be official documents. We have no way of knowing whether they are actually official documents or whether they are made up, but it just shows what happens when you do not have enough transparency and you do not share information.

I think some of us really also understand the need sometimes for a bit of confidentiality. Surely, when we are in negotiations, we do not want to give away all our negotiating positions; we do not want to give away our chips.

But what we are asking for is reasonable transparency. Why can we not have access to these documents? Why can we not have access to the texts? And if you feel that, for reasons of transparency and for negotiations, you cannot give us this, then at least give us summary positions and tell us what our basic principles are in these negotiations.

So, for example, are we going to support proposals that appear to be on the table, according to what is on the blogosphere, that MP3 players and laptops can be confiscated at borders? Will there be criminal sanctions? Is the EU position to support this? I think we need to know and I think it shows the strength of feeling across this Parliament that we have been able to come together on a broad compromise, even though we may have slight differences and nuances here, to agree on a common text.

So, Commissioner, it is over to you to demonstrate transparency and demonstrate that you recognise the democratic accountability that we all seek.


  Karel De Gucht, Member of the Commission. – Mr President, I understand Members’ concerns about the ACTA negotiations.

Let me first recall that we are negotiating this agreement in order to improve the protection of ‘made in Europe’ innovation in all areas where intellectual property rights can be breached. If we want to remain a competitive economy, we will have to rely on innovation, creativity and brand exclusivity. That is one of our main competitive advantages on the world market. So we need the tools to ensure that this competitive advantage is adequately protected in our main export markets.

We have tried to raise this issue for several years in multilateral organisations like the WTO or the World Intellectual Property Organisation. Those attempts have been systematically blocked by other countries. So, despite our preference for a truly global solution, we have had no other choice but to engage with a coalition of the willing.

The final agreement will only be binding on those countries that have signed, although we would of course be happy if more countries, and especially emerging economies, could subsequently join.

As I said during my hearing, those international negotiations are confidential. That is not unusual. Negotiations are about seeking an agreed outcome and require a minimum confidentiality in order for each party to feel comfortable to make concessions and/or to try out options before finally settling on an agreement.

On the other hand, I agree that Parliament needs to be adequately informed about the evolution of the negotiations. We are doing our utmost in two areas: to inform Parliament, and to convince our negotiating partners to agree to more transparency. Firstly, as regards information to Parliament, we have provided you with the negotiating guidelines, full reports on the negotiating rounds and, in general, all the relevant documents originating from DG Trade that have been shared with the Member States through the Trade Policy Committee. We have done this in accordance with the framework agreement. Also, ACTA has been discussed several times in the Committee on International Trade in the last three years.

Let me add to this that the Commission organised two stakeholder conferences on ACTA in June 2008 and April 2009, which were open to all citizens, industry, NGOs and the media. Another public conference will be organised on 22 March in Brussels.

I understand that you may feel that this is not sufficient for you to have a clear picture on where we stand in these negotiations. I have instructed my services to provided dedicated briefings with interested MEPs on all aspects of the negotiations. They will be at your disposal for discussion before and after each further negotiating round.

Secondly, I realise that the best way for you to know what is going on in these negotiations would be to read the draft negotiating text. This would give you a very clear picture of where exactly we are in those negotiations. As you probably know, there is an agreement amongst ACTA parties that the negotiating text can only be made public if all parties agree. The Commission is in favour of releasing the negotiating documents as soon as possible. However, a few ACTA negotiating parties remain opposed to early release. I strongly disagree with their approach but I cannot unilaterally breach a confidentiality commitment. My credibility as a negotiator is at stake.

Nevertheless, I will see to it that, at the next negotiating round in April, the Commission vigorously pushes its negotiating partners to agree to releasing the text, and I will raise Parliament’s concerns bilaterally with ACTA parties, like the US, whom I am scheduled to meet before then. It is in the interests of all that everyone has a clear idea of what exactly these negotiations are about and even more importantly, also of what they are not about.

Finally, as regards your concerns on the substance, I would like to recall the main principles that are driving the Commission in the negotiation of this agreement.

First, the objective is to address large-scale infringements of intellectual property rights which have a significant commercial impact. It will not lead to the limitation of civil liberties or harassment of consumers.

Secondly, ACTA is only about enforcement of intellectual property rights. It will not include provisions modifying substantive intellectual property law such as the creation of new rights, the scope of protection or duration. However, it should set minimum rules on how innovators can enforce their rights in courts, at the borders or over the Internet. For example, a European fashion designer, when confronted with counterfeiting of his creations outside Europe, can ensure that his rights are adequately safeguarded abroad.

Thirdly, ACTA must, and will, remain in line with the acquis communautaire, including the current level of harmonisation of IPR enforcement, the e-Commerce Directive, the telecoms regulatory framework and, last but not least, the applicable EU legislation on data protection and piracy. There will be no harmonisation or changes to EU legislation through the back door.

In this sense, ACTA will have no impact on European citizens, since it will not create new obligations for the EU and no need for implementing legislation. However, it will provide our innovators increased protection in overseas markets.

I am aware of the concerns expressed by some of you about the introduction of a compulsory ‘three strike’ rule or graduated response to fight copyright infringements and Internet piracy. Let me be very clear on this so there is no room for ambiguity. The three strike rule or graduated response systems are not compulsory in Europe. Different EU countries have different approaches and we want to keep that flexibility while fully respecting fundamental rights, freedoms and civil liberties. The EU does not support, and will not accept, ACTA creating an obligation to disconnect people from the Internet because of illegal downloads.

Similarly, we will make sure that ACTA does not hamper access to generic medicines. I know there has been some controversy on the impact of EU customs legislation on trade in generic medicines. As I have already told you at my hearing, that problem will be addressed in the upcoming revision of our customs legislation.

Finally, you also asked about an impact assessment on ACTA. In fact, considering that the Commission will not go beyond the acquis communautaire, we took as our basis the studies made for the 2004 directive on the enforcement of intellectual property rights and for the 2005 Proposal for a directive on criminal enforcement of IPR (which was not adopted).

We also considered the conclusions of the 2008 OECD study on the economic impact of counterfeiting and piracy. That study values the economy of physical internationally traded counterfeits at USD 250 billion, which is to say, more than the individual GDP of 150 countries. It also contains an exhaustive analysis of the piracy of digital contents.

In short, I hear your concerns and will defend them to the best of my ability. Your confidence and support will help me carry this important task forward.


  Tokia Saïfi, on behalf of the PPE Group. (FR) Mr President, Commissioner, since the Treaty of Lisbon came into force, we have had new powers that we wish henceforth to see respected. Therefore, we have listened to you and we ask you to introduce an ongoing, transparent consultation procedure on the Anti­Counterfeiting Trade Agreement (ACTA), ensuring that the European Parliament and the citizens represented by this Chamber are regularly and fully informed of the progress of the negotiations, whilst respecting the confidentiality clauses which, as you have just indicated to us, are related to the agreement. We wish today to have access to the text and the summary of the negotiations so that we may be fully involved in the legislative process.

Moreover, my group and I would encourage you to pursue the negotiations in order to achieve a multilateral treaty that improves the standards of application and of respect for intellectual property rights to which, eventually, the emerging economies such as China could subscribe. Counterfeiting is a scourge, an underground activity and one aspect of unfair competition that, as well as being a danger to the body, society and the economy, is a danger to the mind.

By depriving authors as well as the companies which have invested many years in researching and developing the fruits of their work, it discourages others from pursuing their efforts to innovate and create. However, we know that this is where the heart of European Union competitiveness resides.

Finally, I believe that with the development of our digital environment, we cannot deny that counterfeiting has become intangible. Therefore, I remain convinced that it is possible to make Internet users, especially those who hijack copyright, liable without comprising respect for fundamental rights and civil liberties. Let us work together to find this balance between rights and responsibilities.


  David Martin, on behalf of the S&D Group. – Mr President, I thank the Commissioner for his contribution. Commissioner, you said at the end of your contribution that you have heard our concerns and you are responding to them. Well, I think, as they say, ‘up to a point’. I am not convinced that you have entirely grasped all our concerns about the ACTA negotiations. It is true that there is common ground between us in terms of the fact that IPR right holders deserve a fair return on their rights, but counterfeit goods can and do sometimes pose a threat to human health.

So, like you, we are not against international cooperation to tackle piracy, to tackle counterfeiting and to deal with other abuses of intellectual property rights. But, we repeat, it has to be based on the existing acquis communautaire. If you are giving us an absolute assurance on that, then I accept it, but you said you were not going to do it through the back door – which it seemed to me still gave you the opportunity to do it through the front door – but if you are saying absolutely no move to the acquis communautaire, then I am pleased to hear that and I accept your word on that.

Similarly, you said you would not criminalise individuals for downloading from the Internet, but then you talked about the external borders of the Community and what might happen with people going away rather than coming into the EU, so again, we do not want anything in ACTA which criminalises anyone for individual use. Even though we might frown on it, nobody should be criminalised for personal use of copyright material.

Of course, any action through ACTA has to be proportional to the aims. It is not a blank cheque for copyright holders. The problem, as other Members have said, is that we do not know the situation because of the secrecy surrounding this.

I welcome the fact that you have given a strong commitment to get the draft negotiating text and that you will put pressure on the other parties. I think you have to tell the other parties, though, that this will not strengthen you as a negotiator: it will weaken you as a negotiator if you cannot release the draft text, because you will not have – as was very clear tonight – the support of this House if we cannot see the draft text on which you are working.

Finally, on a positive note, I welcome your comments on generic medicine and I look forward to seeing the review of the Customs Regulation.


  Sophia in 't Veld, on behalf of the ALDE Group. – Mr President, when preparing for this debate about copyright, intellectual property rights and how we want to protect the creative and intellectual efforts of our fellow citizens, I had to think back to the theft a couple of years ago of a truck containing the new Harry Potter books, just days before their release. But today the thief would not bother stealing a truck; he would simply illegally download it on to his laptop or MP3 player and carry it across the border.

I welcome the Commission’s commitment to transparency but, according to the briefing note kindly provided by your services, the assertion that negotiators were required to sign a non-disclosure agreement is incorrect. You have just said that you signed, or the previous Commission signed, such an agreement and that you are therefore bound by it. I would like to understand which of the two statements is true. If there is no such non-disclosure clause, all relevant documents must be made immediately and publicly available.

If, on the other hand, there is such a clause, we need to hear from the Commissioner what he will do to ensure full transparency and information of the public, not just of this House, because restricted access for Members of Parliament only, subject to confidentiality, is not enough. European citizens have a right to know about decisions that deeply affect their rights and freedoms. In any case, such non-disclosure agreements must become a thing of the past. The EU should, in future, insist that European standards of transparency apply.

The democratic legitimacy of these negotiations is weak. There has not been any debate to establish the aims and principles of the EU. The mandate has not received any parliamentary approval. You may argue that there is no legal requirement but that is beside the point because, if 27 individuals – national ministers – consider that they can give themselves a mandate to negotiate in secret on the fundamental rights and freedoms of European citizens, I can only conclude that their understanding of democracy differs fundamentally from mine.

Parliament means business. No ‘three strikes out’; no warrantless searches and confiscation of laptops or mobile phones. Parliament needs to have watertight guarantees that such clauses will not be introduced via the back door of an international agreement.

Finally, I wish you an excellent trip to New Zealand next month, and please make sure that your iPod does not contain any illegally downloaded material!


  Christian Engström, on behalf of the Verts/ALE Group. – Mr President, first of all, I would like to congratulate the Commission on finally having achieved what EU leaders have been talking about for decades. They have actually managed to get ordinary citizens interested in EU politics.

ACTA is an issue that people on the net really care about. But, having said that, I still feel I must criticise the Commission for the method it has used. The reason so many citizens are following the ACTA issue is because they are furious. They are furious at proposals to limit their freedom and invade their privacy just because some big companies are asking for it.

They are furious because they see their fundamental civil liberties balanced against industry interests and coming up short. They are furious at the complete lack of transparency. This is not how it should be in a democracy.

Tomorrow, we will be voting on a resolution that calls on the Commission to live up to the treaty and put all ACTA papers on the table. I hope the resolution will be adopted by an overwhelming majority. The right to privacy, to information freedom and to fair and proper trial are the cornerstones of a free and open society.

Tomorrow, we will show that this is a parliament that is prepared to stand up for those rights in the information age. We will demand the information that is both our right and our due as the elected representatives, and we will respectfully remind the Commission that this is Parliament, not a doormat.


  Edvard Kožušník, on behalf of the ECR Group. (CS) Mr President, I originally wanted to thank Commissioner Karl De Gucht for breaking with the approach of his predecessor, who circumvented the European Parliament as the only directly-elected European institution and failed to provide information on the process of negotiating this agreement, but I feel rather embarrassed because I was always brought up to show respect for important personages and the fact that Mr De Gucht was ostentatiously cleaning his glasses while my colleague Mr Kamall was standing here has therefore quite thrown me. Nevertheless, I will now turn to the matter in hand.

Personally, I welcome the fact that this agreement is coming into being, since intellectual property deserves better protection than is currently the case. Despite this, I am concerned that the signatories to the agreement do not include Russia and China, who are the main source of copyright violations. I also have concerns over the actual effectiveness of this agreement. Since the content of the agreement is always veiled in a kind of mist, as many Members have mentioned here, I would like to call on the Commission, which is negotiating the agreement on behalf of the Member States, to ensure that it does not serve as an instrument for exporting the French digital guillotine to other states and, at the same time, does not become an importer of software patents into the European Union.


  Eva-Britt Svensson, on behalf of the GUE/NGL Group.(SV) Mr President, Commissioner, I am surprised and deeply concerned at the Commission defending the use of confidential negotiations when it comes to legislation on our citizens’ freedoms, fundamental rights, privacy, and so on. Withholding information on such negotiations from our citizens can never be defended.

I demand that the negotiations are broken off immediately. We can resume negotiations when the parties to ACTA agree that the negotiations will take place transparently and democratically. I want to have all the documents on the table now, and for all citizens. Transparency and information are among the most fundamental principles of a democracy, particularly in respect of fundamental freedoms and citizens’ rights. We therefore request that all the documents are put on the table now and for all citizens, since this is, of course, only what is expected of a democracy.


  Laurence J.A.J. Stassen (NI) . – (NL) Mr President, when dossiers are cooked up behind closed doors, alarm bells start ringing in my group. The Anti-Counterfeiting Trade Agreement (ACTA) is one such dossier. Many people in my country wondered why the Dutch Party for Freedom (PVV) had to be elected to the European Parliament, and here is why. It was so we could oppose the EU kitchen, which is ready and waiting to prepare all kinds of unsavoury concoctions behind closed doors without the public having any say in the matter.

This time, we do not even know as yet what will emerge from this EU kitchen; the European Parliament is expected to have an opinion on something that is still under wraps in there. Is there anything more ridiculous? This shows utter contempt for Parliament and the public. The information that has come to light about this ACTA court up to now is very dispiriting. The consumer would be the victim, with the possibility of excluding citizens from the Internet: a very serious matter.

Europe has always been the continent where people’s freedom to accumulate knowledge takes pride of place. This freedom would now be under serious threat, which cannot and must not happen. In addition, we are looking at a violation of the principle of subsidiarity. The Member States have absolutely no say in this dossier any more. My group stands for full transparency and vehemently opposes the criminalisation of citizens. ACTA breeds a culture of stifling surveillance and imputation; the State is watching you. ACTA circumvents all the existing international bodies, such as the World Trade Organisation (WTO).

What is the Commission up to in that secret kitchen? Why is it almost exclusively American companies who are involved in the consultations; what are they doing there? Are they there to safeguard their commercial interests? Yet what about the interests of European citizens? Could it be that they are less important? This is where the importance of the PVV becomes clear. We fight for the interests of the citizen wherever secrecy and back-room politics are to be found.

I should just like to place on record that the PVV opposes the counterfeiting of medicines and products. That is not what this discussion is about; it is about the fact that the Members of this House are unable to express a proper opinion on this dossier purely and simply because it has been kept secret and so we do not know its contents. We cannot imagine a more flagrant violation of the parliamentary mandate. As far as we are concerned, the whole stinking, secretive kitchen should be closed down and a large sign hung on the door reading ‘Closed owing to violation of the rules’.


  Zuzana Roithová (PPE). (CS) Commissioner, ladies and gentlemen, we know that globalisation and, in particular, the entry of China into the WTO have created an enormous problem. Europe is awash with counterfeit goods which are ever more hazardous to human health and represent large economic losses to companies. Citizens and companies do not take kindly to the fact that the control mechanisms of Member States are totally insufficient, and they are rightly calling for more effective measures at the European level, including big fines for counterfeiters. This agreement should fundamentally improve international cooperation in detecting counterfeiters, but I do not think that our aim should be to prosecute secondary-school students who download games from the Internet. The content of the agreement negotiated over two years is secret, and so information concerning controversial articles which might affect the current rights of Europeans, their privacy and their personal data, only drips through. We gave the Commission no mandate for this.

I therefore fear that the ratification of this highly necessary agreement may be rejected in the European Parliament in a similar way to the SWIFT Agreement, unless the Commission can inform Parliament regularly as to the structure and limits of the negotiated agreement. I do not want us to be faced again with a finished article, in other words, an act that we must approve or reject, without being able to discuss its content in detail and dispel the concerns of our citizens.

I also consider it a strategic error that China, which is the largest source of counterfeits, was not invited to the negotiations on this agreement. I would therefore like to ask, Commissioner, if you could explain to us the tactics that are involved and whether you are in talks with the Chinese over China signing up to the agreement at a later date. Do you really believe this will happen?


  Gianluca Susta (S&D).(IT) Mr President, ladies and gentlemen, Europe’s ambition to remain the world’s largest economy must increasingly be linked to the revival of its competitiveness, to the quality of its manufacturing system and to its ability to conquer new markets.

The fight against counterfeiting and commercial infringement plays an essential role in this context. However, the protection of trademarks, patents and intellectual property are not only non­financial instruments that make the system more competitive, they are also a tangible example of the application to the industrial economy of principles of a democratic legal culture founded on respect for the rules, for those rules which have been violated in past years under the force of international financial speculation.

The Anti-Counterfeiting Trade Agreement (ACTA) is a fundamental instrument with which to combat counterfeiting, a phenomenon which yields incredible revenues of USD 500 billion per year, which has links with organised crime and which affects – indeed threatens – fundamental human rights such as health, if we only think of the counterfeiting of medicines. If we are to assess the need for ACTA, we must bear this international context in mind.

On the other hand, we must call for this treaty to also respect certain basic, fundamental principles of coexistence inspired by respect for the rules. We cannot hide the fact that we are concerned about the legal basis of the treaty, about the negotiating mandate and its transparency. Those who represent, as this Parliament does, 500 million citizens, must be informed officially, not confidentially. The negotiators from the Commission must report back to this House on the state of progress of the work, and access to the documents and information must be provided so that a detailed opinion can be expressed.

The difficult yet fruitful cooperation between Parliament and the Commission can help the European Union to realise its potential in the best possible way. The resolution is along these lines and, as such, it is worthy of our vote.


  Alexander Alvaro (ALDE).(DE) Mr President, Commissioner De Gucht, you are inheriting a weighty legacy and if the subject matter was not so serious, I could almost smile at the speculation triggered by ACTA. However, there are two reasons why I absolutely cannot smile about this. Firstly, counterfeiting and violations of copyright and trademark law are things that jeopardise both the integrity of the economy and people’s health.

The global economic loss as a result of counterfeiting and violations of copyright and trademark law is estimated to have been EUR 185 billion in 2007 alone. That is significantly more than the European Union’s budget. This jeopardises our businesses, promotes crime and destroys jobs. That certainly cannot be in our interests.

In addition, counterfeit medicines can have life-threatening consequences for people who take these medicines unaware that they are counterfeit. That is also an unacceptable risk.

It also goes without saying that it is very much in our interests to take action in this regard. Secondly, it must doubtless be clear that the European Commission’s negotiating mandate should be strictly confined within the framework of the acquis communautaire to ensure that ACTA does not, in future, stand for ‘another crazy treaty agreed’.

After the entry into force of the Treaty of Lisbon, this includes providing extensive and ad-hoc information to the European Parliament on the current status of the negotiations on the agreement. After all, we will be asked to give our approval. In other words, the European Parliament expects complete transparency and publication of the negotiation documents along with all other relevant papers. If the Commission wants to avoid further rumours and assumptions surrounding ACTA, I see no other option than for it to provide the interested public with detailed information.

I have three important questions in this regard. Firstly – even though you have already touched on this – can the Commission guarantee that there will be no introduction of a ‘three strikes and you are out’ rule? That would, of course, be contrary to the new Electronic Communications Framework Directive.

Secondly, can the Commission guarantee that there will be no introduction of third-party liability on the part of Internet service providers for the content that they transmit? That would, of course, be contrary to the e-Commerce Directive.

Thirdly, can the Commission provide assurances that, within the framework of ACTA, no penal measures will be introduced that lie outside the competence of the European Union, and I am very well aware that it will be the Member States that assume the responsibility in this respect. However, I assume that, as guardian of the treaties, you will do what is expected of you.


  Jan Philipp Albrecht (Verts/ALE).(DE) Mr President, Mr De Gucht, more than a year ago, the European Parliament asked you, the Commission, very clearly to make the negotiations on the ACTA Agreement transparent in future and to involve the public and the parliaments in these negotiations. We also urged you to retain the narrow focus on anti-counterfeiting, as indicated in the title of the agreement. What have you done since then? Nothing, absolutely nothing. On the contrary, together with your so-called unholy coalition of the willing, in particular, the rich industrialised nations, you are negotiating an agreement by means of highly undemocratic, even illegal, secret diplomacy, and in many areas, this agreement clearly goes far beyond the current regulations for enforcing intellectual property law in Europe. Of course, we cannot be certain of this because we have received no information from you.

However, the actual scandal is yet to come. As of 1 December of last year, in many areas, you will no longer be able to ignore us and conduct your back-room politics with the Council, because the citizens – represented by their Parliament – have, quite rightly, finally put an end to this behaviour through the Treaty of Lisbon. I therefore ask myself, what are you actually doing in this regard? As the Commission, you are the guardian of the treaties. You are therefore responsible for ensuring that the clearly-formulated EU Treaty is actually complied with. If you are not able to guarantee full compliance with the treaty, then you will once again receive a ‘no’ from this House. If you do not believe that you can guarantee compliance with the treaties in these negotiations, then please stop the negotiations until you can do so. Therefore, the Group of the Greens/European Free Alliance says: act now. Act on ACTA!


  Patrick Le Hyaric (GUE/NGL) . – (FR) Mr President, Commissioner, all of us here are against counterfeiting and piracy. However, Commissioner, you have just told us a fairy tale to justify the fact that you are discussing an international agreement behind the backs of the peoples and behind the backs of their representatives.

I would remind you, Commissioner, that Article 218 of the Treaty of Lisbon states, and I quote: ‘The European Parliament shall be immediately and fully informed at all stages of the procedure’ in the framework of the negotiation or conclusion of international agreements. The Anti­Counterfeiting Trade Agreement (ACTA) is precisely such a case, so keep your word and comply with your own treaty! We cannot but worry about fundamental freedoms. Indeed, interpretation of one offence – piracy – and its punishment will seemingly, in future, no longer be delegated to a judicial authority but to Internet access providers.

What is more, in future, the customs services in those countries that are signatories to the agreement will seemingly be given permission to search telephones, laptop computers and personal stereos on the pretext of combating piracy, in line with the Society for Worldwide Interbank Financial Telecommunication (SWIFT) Agreement, which was meant to combat terrorism. Remember though, Commissioner: Parliament beat you on SWIFT and it will beat you on ACTA if need be.

One therefore wishes to mix together the fight against counterfeiting and piracy, invasions of privacy, infringements of intellectual property and even, in the case of medicines, infringement of the right to health. Commissioner, put this agreement on the table immediately.


  Cristiana Muscardini (PPE).(IT) Mr President, Commissioner, ladies and gentlemen, the Anti-Counterfeiting Trade Agreement (ACTA) is fundamental for achieving full harmonisation of the measures to protect European trade from counterfeiting and piracy. The ACTA negotiations concern sensitive European legislative issues such as guaranteeing the application of intellectual property rights, data transmission and data protection, and this is why we are once again requesting greater transparency.

The Commission must commit itself fully, in accordance with the level of confidentiality. The current negotiating texts must be made available to Parliament so that it can supervise the agreements and possibly offer suggestions to ACTA participants. The Commissioner’s words this evening give us hope, but we want those words to be acted on.

Parliament has always fought to defend European consumers and manufacturers against counterfeiting and measures that infringe Internet privacy. That is why it is vitally important for the Commission to continue to play an active role in the current negotiations, attracting a greater number of participants; there are, unfortunately, only twelve at present. We hope that an increasing number of countries – developing and emerging countries alike – will be tempted to take part in the negotiations and to sign the final agreement, so as to allow for a broader perspective on matters.

Countries must abide by and respect their shared obligations so as to combat counterfeiting and piracy more effectively. This economic scourge is destroying many manufacturing sectors that work in compliance with the rules. Therefore consumers, who are exposed to significant dangers to their health as well, must be provided with clear rules because, Commissioner, in the absence of clear and enforced rules, including for Internet use, the Internet will no longer represent an opportunity; rather, it will have a boomerang effect. We must all make a commitment to stop this happening because this is not only a question of individual privacy; it is also a question of our countries’ security.


  Emine Bozkurt (S&D).(NL) Mr President, Commissioner, an agreement behind closed doors is not something the European public either deserves or wants. The European Union is currently negotiating a very important trade agreement, the Anti-Counterfeiting Trade Agreement (ACTA), and once again, this is being done in back rooms. The national parliaments and the European Parliament have not had a single opportunity for democratic scrutiny of the substance or scope of the negotiations, as the negotiating parties have agreed on a confidentiality clause.

Therefore, Parliament and the European public are being sidelined again, damaging public trust in Europe once more. This time, it is trade interests rather than the fight against terrorism that are at issue. Do not get me wrong; the European economy must be stimulated, and intellectual property is an important aspect of this. Yet the uncertainty being created at the moment by the confidentiality of the negotiating documents has given rise to many rumours.

I should like to ask how the communication works between the Commissioner for Trade and the Commissioner for Fundamental Rights in this regard. Is Commissioner De Gucht going to inform his colleagues about the substance of the agreement at any stage? Is Commissioner Reding planning, at any stage, to ask her colleague, the Trade Commissioner, to provide transparency? The European Parliament demands such transparency, and now is the time to provide it, before our institution has to endorse this trade agreement.


  Eva Lichtenberger (Verts/ALE).(DE) Mr President, Commissioner, during the hearings of the new Commissioners, transparency was one of the words that was used the most. You have said again today that everything is already transparent and open. I have to tell you honestly that this definition of transparency is, unfortunately, not one I can go along with. This is clearly the case for a large number of my fellow Members here in this House, too. Transparency is more than simply throwing out a few bits of information and saying ‘Well, unfortunately, we cannot disclose the rest because we have promised someone that it will all remain confidential’.

We have entered a new era. It is no longer possible to use international treaties to make blind agreements with trade partners that will then affect European legislation down the line. Now that we have the Treaty of Lisbon in place, that is no longer possible. That means that blind agreements, as well as the secretiveness and the lack of transparency, must stop at the doors of the European Parliament. We need credibility for the protection of innovation that you are putting forward here as the main argument. However, you will not achieve credibility if you negotiate everything behind closed doors and then try to console people by saying that it will not be so bad after all. That, Commissioner, is the wrong way to go.


  Catherine Trautmann (S&D). (FR) Mr President, Commissioner, ladies and gentlemen, let us say this clearly: the way in which the negotiations on the Anti­Counterfeiting Trade Agreement are being carried out is unacceptable to the European Parliament.

As a new colegislator on this issue, the Treaty of Lisbon now guarantees us the right to full information at the same time as it is received by the Council. The documents that have ‘leaked out’ up to now have proved to us that, as far as form is concerned, this dimension absolutely was not respected.

What can be said about the content? The fool’s bargain that seems to have been offered to Internet access providers is as follows: should they decide to cooperate in the systematic monitoring of the content carried on their networks, their current non­liability for such content would be maintained. Otherwise, they would be exposing themselves to legal actions by right holders and would be systematically penalised.

I find such a turnaround extremely dangerous, as it would call into question the acquis communautaire, not only on the principle of mere conduit – referred to in French as simple transport – in the e­Commerce Directive, but also in relation to respect for the fundamental rights of the citizens, which was brought up recently in our debate on the Telecoms package.

I will conclude by reminding you that our Chamber has already shown its attachment to these principles by rejecting the Society for Worldwide Interbank Financial Telecommunication (SWIFT) Agreement. I have no doubt about its ability to start again. Therefore, I am anxious to stress the importance of the resolution that is being debated this evening. I welcome the work of our coordinator, Mr Arif, and of all of the negotiators from the Committee on International Trade, who have ensured that the signal that the European Parliament will give tomorrow will be extremely symbolic because it is unanimous.


  Georgios Papastamkos (PPE).(EL) Mr President, counterfeit goods not only harm the competitiveness of European undertakings, but also harbour dangers to human health. The answer is to strengthen the application of intellectual property rights at global level.

We need as many trading partners as possible to join the multilateral agreement being discussed. The agreement being negotiated must be fully in keeping with the relevant Community acquis, must respect fundamental freedoms and protect personal data, must safeguard the free flow of information and must not place unwarranted burdens on legal trade.

Finally, Parliament should have full and substantial information at its disposal at all stages of the negotiation, with due regard for reasonable confidentiality.


  João Ferreira (GUE/NGL). (PT) Mr President, Commissioner, something relatively clear has emerged from the obscure process which has been directed by the European Commission, namely, the intention to widen the scope and costs of intellectual property rights, leading to still more profit for large corporations.

Where necessary to achieve this objective, basic rules about democratic, transparent procedures have been disregarded, whilst information has been concealed and has escaped democratic scrutiny and control. Where necessary to achieve this objective, global access to essential goods such as safe medicines, including generic versions, has been restricted and the rights to privacy and confidentiality of correspondence, as well as to the protection of personal information, have been violated.

The omnipresence of the market and the defence of economic interests which aim to achieve their own objectives within their sectors are not compatible with the defence and safeguarding of the common good. The results of this policy are now quite clear to see.


  Karel De Gucht, Member of the Commission. – Mr President, I must say that, listening to the speeches after I took the floor, it comes to my mind that a lot of you were not listening properly to what I was saying, because I made it very clear that we were going to respect the acquis communautaire, that I would try to make sure the other parties to the agreement give their OK to the disclosure of the text that is currently being negotiated; I made it clear that it would only apply to the commercial infringement of intellectual property rights, and I could continue for some time like this. So I am not going to respond again to all these questions that have been put because, honestly, I think I already answered them in my first speech.

David Martin put the question, what happens when somebody is, in fact, leaving not only the European Union but leaving a country that is a party to the ACTA Agreement? That is an interesting question because it depends, of course, on where he is going to. If he is going to a country that is not a party to the ACTA Agreement, then it will depend upon the customs and police of the country concerned, but that is beyond our reach. As far as it is within our reach, we will make sure that this is not happening but, of course, we cannot speak for others.

I do not quite agree with the whole of Ms in ’t Veld’s reasoning on parliamentary approval and parliamentary control, but let me just say very clearly what I think the case is in the Treaty of Lisbon. The case is that the Council gives a mandate to the Commission, and the Commission negotiates, and the Council has taken a decision on a mandate following their own rules of procedure. Whether or not a minister in the Council of Ministers needs the approval of his national parliament beforehand is not a matter of European law, but a matter of national law, and that differs from one country to another. I know that in your country, for example, for many positions of that kind, they need approval beforehand from the Parliament – OK, but there are other countries where this is not the case. We should not, I think, judge the way the Council takes a decision. Insofar as the Council respects the treaty and their own rules of procedure, I think that it is their business and not directly ours.

You were, to a certain extent, protecting me in that they should not check my iPod. I have no iPod, so there is no problem yet. In fact, I have had one since yesterday, but I have not yet used it and I am not going to New Zealand. It is a little bit too far. For that, you need officials who have a little bit more time to go there.

(NL) I shall leave the whole discussion on the kitchen for Mrs Stassen ...

Interesting question, what about China? Well, China is not, as you know, Ms Roithová, a party to the present negotiations. China is a serious problem because, as you rightly state, they are the number one source of counterfeiting.

Now we have several negotiations with them and discussions with them, also the high-level economic dialogue. Repeatedly, we put emphasis on intellectual property rights, which is one of the main problems, not only within Internet trade but also in a lot of other activities. Once ACTA is concluded, it will be open to all countries to sign it, and I hope that China will come to the conclusion that, for their own industry too, it would be beneficial if there were better protection of intellectual property rights, and sooner or later, that will come. Look at other countries where this also happened in the past: now they have much more interest in intellectual property rights.

I do not quite agree on the interpretation by Mr Le Hyaric and Mrs Trautmann concerning Article 218. What Article 218 says is that Parliament should be informed about all steps in the procedure; well, you are, and even more than that. What we do by way of information goes far beyond what is mentioned in Article 218, far beyond, but I have no problem with that. I made it clear in my introductory statement that we will insist on other parties agreeing that we be in a position to disclose the present draft of the text, but it is not correct that we would not be respecting Article 218.

By the way, let me say to Ms in ’t Veld, we sent you Annex 16 to the agreed statement by all ACTA participants about maintaining the confidentiality of documents. That was sent to you by the Director–General, Mr David O’Sullivan, on 21 January 2009. Of course, that was in the previous Parliament, but it is still the same person. Mr O’Sullivan is the same and Ms in ’t Veld is the same, so you got it. So it is a little bit difficult then to question me as to what this is all about.

Finally, let me make it very clear that what I have been saying and what I said in the hearing should be taken seriously. I will do my utmost to have the agreement of the contracting parties that we can fully inform you. As long as that is not the case, I cannot disclose to you the drafts of the agreement because that would breach the confidentiality agreement and breaching such an agreement would have effects that are not limited to the ACTA negotiations but would spill over to a lot of other negotiations we have with these countries concerned. It would breach the confidentiality as such and that makes all negotiations very difficult, if not impossible, but I will do my best to see that you get the stuff.


  President. – I have received five motions for resolutions(1)tabled in accordance with Rule 115(5) of the Rules of Procedure.

The debate is closed.

The vote will take place on Wednesday, 10 March 2010.

Written statements (Rule 149)


  Françoise Castex (S&D), in writing.(FR) Whilst Parliament has been demanding access to the texts for months, the Anti­Counterfeiting Trade Agreement (ACTA) has been negotiated in the greatest possible secrecy behind the backs of the citizens and their representatives, and that is unacceptable. The Commission itself cannot make head nor tail of it. It tells us that it has already sent us the documents and, at the same time, that it will ask the Council to publish everything: who is it trying to kid?

Beyond the issue of transparency, we wish here to remind the Commission and the Council that they will have to obtain consent from Parliament at the end of the negotiations. From the leaks that have reached us, it would appear that we have a Trojan horse: on the pretext of a wholly legitimate fight against counterfeiting, the Member States, with the French Government at the forefront, wish to vote through a text that could undermine access to medicine, freedom of expression, the neutrality of the Internet and the legal liability of its intermediaries.

The fact is, Parliament will oppose any undermining of the acquis communautaire. If the Commission and the Council do not change strategy, we shall protect the individual freedoms of our fellow citizens by rejecting ACTA, just as we rejected the Society for Worldwide Interbank Financial Telecommunication (SWIFT) Agreement.


  Ioan Enciu (S&D), in writing.(RO) I welcome the question submitted to the Commission concerning the transparency and state of play of the negotiations on the Anti-Counterfeiting Trade Agreement (ACTA). In my view, urgent action must be taken to resolve the situation we are in. It is unacceptable for the European Parliament to be excluded by the Commission from the negotiations on drawing up the ACTA, given that we have to give our approval to the provisions of this treaty. As has already been said, the Commission must make public as soon as possible all the negotiations which have taken place in connection with the ACTA, as well as the prospects envisaged for the meeting in April. Issues such as forcing Internet providers to monitor traffic and impose restrictions within their networks may have an adverse impact on the population, both from the perspective of respecting their right to privacy and due to additional costs incurred by users. Such an issue must be debated openly and public opinion must be consulted on it. The stance taken by European citizens and industry on these measures must be known and respected in order to be able to avoid any kind of abusive, anti-democratic behaviour.


  Lidia Joanna Geringer de Oedenberg (S&D), in writing. (PL) Ladies and gentlemen, the Anti-Counterfeiting Trade Agreement, which is currently being negotiated by the European Commission, goes beyond the principle of proportionality, which is enshrined in EU law. This principle says that action taken by the Union must not go beyond what is necessary to achieve the objectives of the treaty. The chapter on the Internet is a cause of particular anxiety. It is being said that the agreement contains regulations which could restrict freedom of speech in the Internet, on the one hand, and commercial activity, on the other. This will be the result of what is said to have been proposed concerning making Internet providers liable for the content of information sent, as well as penal sanctions for downloading files for private use. I say that these things are being said, because information about the content of the agreement does not come from official sources, but only from gossip and leaks, since the Commission does not keep Parliament informed about progress in negotiations. However, the Treaty of Lisbon does, now, foresee such a procedure. In addition, the consent of Parliament, expressed by a majority of votes, is essential for any agreement to be made by the Council. The new treaty also brings in a competence allowing action to be taken in the area of intellectual property, and this belongs equally to Parliament and the Council. Therefore, I add my voice to those of other fellow Members who are demanding greater transparency concerning the current negotiations, and I think interinstitutional cooperation on the matter of the ACTA should demonstrate that all the institutions are treating the new treaty, which is now in force, seriously. At the moment, this is not the case.


  Alan Kelly (S&D), in writing. – The Anti-Counterfeiting Trade Agreement has a mandate which is vital for the protection of Intellectual Property Rights. Post-crisis, there needs to be an incentive for intellectuals and artists to use their creativity and publish new material, without fear, online. This right needs to be balanced against an individuals right to access to information and, furthermore, sanctions should only be targeted at the larger commercial exploiters of copyright material. However that is an issue for another day. Right now, I am most concerned about the level to which this House is being kept informed of negotiations. Under Lisbon, this agreement requires the approval of this House and I would guess from my colleagues that the way the agreement is developing, it will receive a cold reception. Negotiations surrounding ACTA need to be more open, and the Commission and Council need to show their willingness in this by ensuring Parliament has broad access to documents on the issue.


  Stavros Lambrinidis (S&D), in writing. – I hope that the written declaration on ACTA that I submitted two weeks ago together with my colleagues, Castex, Alvaro and Roithová, and today’s debate will serve as a belated wake-up call to the Council and the Commission. This Parliament will not sit back silently while the fundamental rights of millions of citizens are being negotiated away behind closed doors. We oppose any ‘legislation laundering’ on an international level of what would be very difficult to get through most national legislatures – let alone the European Parliament. Here, of course, I refer to the infamous ‘three strikes’ laws. This Parliament firmly believes that intellectual property rights must be protected, but not by giving private companies sweeping rights to monitor indiscriminately every citizen’s activities on the Internet – something that we refuse to allow even our police to do when fighting terrorism – and certainly not through the disproportionate penalty of cutting whole households off from the Internet. Access to the Internet is itself a fundamental right. It must be treated and protected as such.


  Michael Theurer (ALDE), in writing. (DE) The European Commission’s negotiations relating to the Anti-Counterfeiting Trade Agreement (ACTA) have raised a few questions. Although the agreement deals with justified concerns, namely combating the counterfeiting and smuggling of products and brands, it needs to be more firmly based on our European principles. It must not lead to the harmonisation of copyright law, patent law or trade mark law in the EU – on the contrary, the principle of subsidiarity must remain our most important principle. Trade agreements must not be misused in order to curtail the fundamental rights and freedoms of individuals. Before Parliament can give the approval that is required for the ratification of this agreement, significant improvements still need to be made, and not only in terms of content. Parliament must be involved to a greater degree in the negotiations and the negotiation documents must be made available to us in full.


(1)See Minutes

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