The decision of this week of the European Parliament not to refer ACTA to the European Court of Justice was a decision which has ramifications far beyond the ACTA dossier itself. It is one which will have long-term effects on the institutional standing of the European Parliament.
The functioning of the EU decision-making process relies on a broadly equal balance between the three main institutions - the Commission, the Parliament and the Council (Member States). The European Parliament is the only directly elected institution. It is therefore particularly important that it is robust and independent. The less powerful the Parliament is in this institutional triangle, the less direct influence that citizens can bring to bear in the preparation of legislation that affects every one of them.
In controversial dossiers, the European Commission and/or the Member States have often sought to overrule the position (or expected position) of the European Parliament, exploiting personal or institutional weak points, pushing the Parliament’s democratic scrutiny of the dossier in question to one side. Instead of judging a proposal on its merits, career ambitions of individual MEPs or domestic political concerns are the primary factors that decide the position of the Parliament.
This is what happened with the Data Retention Directive, where the UK Presidency of the Council essentially bullied the Parliament into submission. On the basis of the Parliament’s scrutiny of the Directive, it would have been rejected. However, by a mixture of pressure from the UK Presidency on the Parliament as a whole and the German government on German MEPs, the Directive was approved. The fact that the Parliament could be persuaded to abandon its position on a policy on the basis of bullying and domestic political pressures inflicted damage on the institution that is still visible today.
In the past few months, the ACTA dossier has become very similar. As the likelihood of a rejection of the proposed Agreement by the Parliament grew, the European Commission, with support from Parliamentarians motivated by other priorities than the defence of the prerogatives of the only democratically elected EU institution, has sought to use every possible machination to prevent the Parliament from taking its vote.
The first such tactic was the referral of the dossier to the European Court of Justice. If this measure was really based on genuine concerns about ACTA’s legality, it would have been done far earlier - and certainly before the dossier had been handed over to the European Parliament. From that point on, the question was (and still remains) whether the European Parliament is strong enough as an institution to defend itself from having its decision-making process visibly and publicly undermined in this way.
The pro-ACTA lobby in the Parliament has used the Commission’s plan for a Court referral as a basis to undermine the Parliament’s decision-making. Every possible argument and strategy that could be used to prevent a vote is therefore being brought to bear inside the Parliament to support the Commission’s attempt to circumvent the Parliament’s role in the decision-making process.
The same lobby is even seeking to persuade the Parliament that it does not have the political right, even if it has the legal right, to reject the Agreement after years of (untransparent) negotiation. This is why they argue that rejection would “irrevocably affect Europe’s credibility as a trusted global trade partner”. The argument to the Parliament is therefore “do not use your legal rights. Do not seek to bring democracy into this process, it will make the EU look bad.”
More surprisingly, elements within the Parliament are seeking to undermine the Parliament. For example, elements of the Parliament’s legal service are arguing that the Parliament’s rules of procedure can be understood to say things they don’t say. The ostensibly neutral and non-political lawyers argue that the Rule of Procedure, which say that the Parliament should suspend its work if the Parliament itself refers a decision to the Court, argue that - presumably on the basis that the drafters of the Parliament’s rule were incompetent - the rules meant to say that deliberations should be suspended if any institution refers a proposal to the Court.
With help from the industry and Commission lobbies, the anti-Parliament elements in the Parliament generated a whole queue of implausible delaying tactics on the production line.
Do the rules of procedure of the Parliament say what they do not say? Maybe the Parliament should delay a vote for over a year to be on the safe side. Or perhaps this question should be referred to the Constitutional Affairs Committee to spend a few months reflecting on - with the Parliament suspending its work in the meantime.
Perhaps the Parliament should produce an interim report, asking for non-binding undertakings from the Commission and Member States about implementation of ACTA, thereby wasting another few months.
It is a very positive sign that the European Parliament has decided to resist the siren calls of the pro-ACTA lobby. It is a positive sign that the Parliament is showing a new courage to stand up for its democratic role in the decision-making process. However, there are still numerous possibilities for delay and even a vote in favour of ACTA’s disastrous provisions. The courage shown this week gives grounds for cautious (and, above all, non-complacent) optimism.
Full overview of the delay plans
Industry lobbying on ACTA
Mr Wieland sacrifices the Parliament’s broader interests (27.03.2012)
European Parliament Rejects Referral Of ACTA To EU High Court (27.03.2012)
Cooperative efforts in ACTA Digital Chapter (2012)
Prime Minister Donald Tusk of Poland sent a letter to his fellow leaders in the EU Friday urging them to reject ACTA, reversing Poland’s course with the controversial intellectual-property treaty, and possibly taking Europe with them.
“I was wrong,” Tusk explained to a news conference, confessing his government had acted recklessly with a legal regime that wasn’t right for the 21st century. The reversal came after Tusk’s own strong statements in support of ACTA and condemnation of Anonymous attacks on Polish government sites, and weeks of street protest in Poland and across Europe.
Die Bundesregierung hält an dem umstrittenen Urheberrechtsabkommen ACTA fest. Das Vertragswerk sei „notwendig und richtig“ und bringe „keine der Gefahren mit sich, die derzeit beschworen werden“, sagte Regierungssprecher Steffen Seibert.
Wir sehen in diesem ACTA-Übereinkommen einen wichtigen Schritt, um den internationalen Rechtsrahmen für die Bekämpfung von Produkt- und Markenfälschungen zu schaffen.“ Wenn jetzt neue Fragen aufgetaucht seien, sei die Regierung offen, diese klären zu lassen.
Der Sprecher des Justizministeriums, Anders Mertzlufft, verwies auf die Möglichkeit, dass das Europaparlament ACTA dem Europäischen Gerichtshof zur Prüfung vorlegen könnte. Dies würde eine erhebliche Verzögerung von ein bis zwei Jahren nach sich ziehen. Wenn ACTA im Europaparlament scheitern sollte, stelle sich in Deutschland nicht mehr die Frage einer Unterzeichnung oder einer Ratifizierung durch den Bundestag.
Die Beratungen im Europaparlament beginnen am 27. Februar. Bei den Verhandlungen über ACTA habe die Bundesregierung keine führende Rolle gespielt, sondern haben „am Katzentisch“ gesessen, sagte Mertzlufft vor der Bundespressekonferenz.
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