ACTA to get second referral to ECJ, causing new delay

The European Parliament will probably refer the Anti-Counterfeiting Trade Agreement to Europe's top court, but in a separate case from the one the European Commission has already launched.

The move may add a further delay to ACTA's passage through the European legislative process, as European Court of Justice (ECJ) cases can take between a year and two years to be completed.

The Commission said a week ago that it would refer ACTA to the ECJ to check whether the international copyright-enforcement pact complies with fundamental European rights. On Tuesday, the rapporteur in charge of ACTA within the European Parliament's trade committee said he wanted Parliament to also ask for the ECJ's opinion, but separately.

"The ECJ will be asked, 'Is ACTA in line with the existing treaties, the [shared EU common law], the European Charter of Fundamental Rights?'," David Martin, who took over as the INTA rapporteur for ACTA after Kader Arif quit in protest, said.

Martin noted that, if the ECJ were to say that ACTA was in line with all these things, that did not mean the European Parliament would agree to ratify the agreement. However, he added: "If the court says no to any of these things, ACTA, in my opinion, is dead."

The Parliament will not join the Commission's existing referral to the ECJ. Martin was joined at the press conference by his 'shadow rapporteur' Christofer Fjellner, who pointed out that there was value in formulating a second set of questions.

"When the European Commission sends the questions, the EC decides what questions are to be asked," Fjellner said. "We have the opportunity to gather questions from all the MEPs [and] listen to the concerns of civil society and see that their questions are the ones to be referred to the ECJ."

Because ACTA deals partly with criminal law, it is handled within the European Union as a mixed agreement — in order to come into force anywhere in the EU, it has to be signed and ratified by not only every single member state, but also at the EU level.

The position that ACTA could have unintended consequences is potentially a fair assessment.

– David Martin

A European Commission representative has already signed ACTA, as have 22 member states, but it has not yet been ratified by any member state or the European Parliament. Many member states have put their ratification processes on hold, waiting to see what the Parliament decides.

Martin said on Tuesday that he came to ACTA with an open mind, but he was concerned about the "vagueness" of the text. He said the INTA committee wanted to know how the European Commission would seek to enforce ACTA within the EU.

"The position that ACTA could have unintended consequences is potentially a fair assessment," Martin said, explaining that, while he believed ACTA's text did not force ISPs to implement three-strikes policies or border agencies to seize generic medicines, the wording of the text could be interpreted otherwise.

"There are many unanswered questions about not the content of the ACTA agreement but the implementation," he said.