Brussels, 10th November 2008 - The EU Council of Ministers refuses to release secret Anti-Counterfeiting Trade Agreement (ACTA) documents. The Foundation for a Free Information Infrastructure (FFII) had requested these documents to make public and parliamentary scrutiny possible. After the Council's refusal, the FFII sent in a confirmatory application, for the EU Council to review its position, as allowed by Article 7(2) of the regulation dealing with public access to such documents.
ACTA's secrecy fuels concerns that the treaty may give patent trolls the means to extort companies, undermine access to low-cost generic medicines, lead to monitoring all citizens' Internet communications and criminalize peer-to-peer electronic file sharing.
The EU Council refuses to release the secret documents stating that disclosure of this information could impede the proper conduct of the negotiations, would weaken the position of the European Union in these negotiations and might affect relations with the third parties concerned.
The FFII reaffirms its application stating that the legislative process in the EU has to be open. If the agreement will only be made public once all parties have already agreed to it, none of the EU's national parliaments nor the European Parliament will have been able to scrutinise its contents in any meaningful way. To prevent this from happening, it may be necessary to renegotiate ACTA's transparency.
The FFII's confirmatory application letter questions ACTA's secrecy in no uncertain terms: "The argument that public transparency regarding 'trade negotiations' can be ignored if it would weaken the EU's negotiation position is particularly painful. At which point exactly do negotiations over trade issues become more important than democratic law making? At 200 million euro? At 500 million euro? At 1 billion euro? What is the price of our democracy?"
The Canadian government released documents under the Access to Information Act that provide additional insights into the secretive nature of the negotiations.
If the EU Council again refuses to release the secret documents, the FFII can take the case to the European Court of Justice. An earlier case on transparency of EU legislation took 6 years. By that time ACTA may long have entered into force.
Ante Wessels, FFII analyst, says: "We do not have so much time. The only solution we see is that the parliaments of Europe force the Council to publish the texts by making Parliamentary scrutiny reservations."
Note FFII's confirmatory application letter is attached below.
Open letter by more than 100 public interest organizations
(You will find more information here on concerns that ACTA may undermine access to low-cost generic medicines.)
FFII confirmatory application letter
Thank you for your reply informing us of the inability of the General Secretariat to grant access to the following documents:
- Documents 12875/08, 13448/08 and 13750/08: working documents from the Commission Services concerning the Anti-Counterfeiting Trade Agreement.
- Documents 13382/08 and 13949/08: notes from the Presidency to Delegations concerning the Plurilateral Anti-Counterfeiting Trade Agreement.
- Document 13637/08 (RESTREINT UE): an outcome of the consultation of the Justice and Home Affairs Counsellors on 26 September 2008 concerning the Plurilateral Anti-Counterfeiting Trade Agreement - 3rd negotiating session 8-10 October 2008, Tokyo, Japan.
The given reason is that "Release of these documents would weaken the position of the European Union in these negotiations and might affect relations with the third parties concerned."
Please find our confirmatory application herewith. We would appreciate if it could be made fully public in the Council's Register of documents.
The European Union and its member states are built on the concept of a representative democracy. As the European Court of Justice ruled in the recent Turco case (joined cases C-39/05 P and C-52/05 P) on public access to legislative proposals and preparatory texts:
"Openness in that respect contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights."
The ACTA is a so-called "trade agreement". While technically it is therefore not a legislative proposal, its acceptance will nonetheless lead to legislative and executive obligations for the undersigning parties. Hence, indirectly it will have the same effect as a legislative proposal. Simply calling it differently and using different negotiation procedures cannot be used as an excuse in a democratic society to get around all transparency principles and requirements of said society.
If, as currently planned, the agreement will only be made public once all parties have already agreed to it, none of the EU's national parliaments nor the European Parliament will have been able to scrutinize its contents in any meaningful way. We believe this to be a gross violation of the basic democratic principles the EU is supposed to stand for. The argument that public transparency regarding "trade negotiations" can be ignored if it would weaken the EU's negotiation position is particularly painful. At which point exactly do negotiations over trade issues become more important than democratic law making? At 200 million euro? At 500 million euro? At 1 billion euro? What is the price of our democracy?
And when exactly do relations with third parties become more important than the relations with the EU's own citizens? Only when there is no upcoming referendum on a Constitutional Treaty? Are we only useful as a large consumer base that can be used as trading goods during trade negotiations in other times?
Heaven forbid that these consumers turn out to be also citizens that want to have a say in what their buying power is being exchanged for. After all, they might think that criminalising themselves in case they put a home movie of their children dancing to Britney Spears' latest song on Youtube might not be such a good idea. Paying higher subscription fees for Internet access so that Internet Service Providers can install filtering devices resulting in lower speeds and censored web access may not sound very attractive either. And neither does giving patent trolls free reign, with compliments of the various governments.
In short: which overriding trade interests justify the complete and utter disdain for direct public and parliamentary scrutiny over the negotiations at hand? And at which point exactly do trade interests start taking precedence over democratic and transparent law making?
There is no such point. The Institutions know that the legislative process in the EU has to be open. Our negotiation partners know this too, or should have been informed. If our negotiation partners are uninformed about it, if openness could impede the proper conduct of the negotiations, the negotiation mandate is fundamentally wrong. However painful, the secrecy has to be renegotiated first. It has to go out.
That should not be a problem. The Commission asserted that it would not go beyond the status quo, the content should be uncontroversial. And international intellectual property agreements have traditionally been conducted in a more open and transparent manner. A rollback of democracy is not needed nor acceptable.
FFII IPRED2 / ACTA workgroup
About the FFII
The FFII is a not-for-profit association active in over fifty countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, and open standards. More than 850 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.