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Parliamentary questions
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15 December 2010
Answer given by Mr De Gucht on behalf of the Commission
Question reference: P-9179/2010

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.

OJ C 249 E, 26/08/2011
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