By Karel De Gucht - 28th February 2012
I have no legal doubts: this agreement does not undermine fundamental rights and freedoms as guaranteed by the European treaties
Karel De Gucht
Last Wednesday the European commission decided to ask the European court of justice to assess whether the anti-counterfeiting trade agreement (Acta) is in any way incompatible with the EU's fundamental principles and the protection of human rights.
The move should be seen as an effort to bring the debate on Acta, which is spiralling out of control both in the virtual and in the political world, squarely back with both feet on the ground.
The reasons why the debate is so heated are valid. In fact I share the concern for freedom of the internet and welcome vocal activism that questions any potential threat to it.
But the fact is that Acta has very little to do with a number of these supposed threats. Some of the actions, like the cyberattacks on parliamentary websites, are missing the target.
Some of the claims are simply missing the point. Despite what you may have heard or read, Acta will not censor the internet. It will not mandate monitoring of individuals e-mails or blogs.
It will not sub-contract the functions of the police to private internet service providers. It will not restrict the sale of legal generic medicines.
It will not mandate the inspection of laptops or MP3 players by customs officials. I have no legal doubts: this agreement does not undermine fundamental rights and freedoms as guaranteed by the European treaties.
That being said, what is actually in the agreement is well worth a debate: the role of intellectual property in our society and economy.
Acta is nothing more and nothing less than an agreement creating international standards for 13 parties to enforce intellectual property rights in ways that today are already enshrined in European law.
Over the years we have built up a comprehensive system to protect intellectual property in Europe. We have outlined the rights that can be protected and the means to enforce them.
We have also built in safeguards for the rights of citizens to free speech and free access to information and data protection and of service providers and intermediaries who deal with protected goods.
Acta is a means to extend the benefits of this system beyond our borders.
It is an enforcement treaty.
It does not cover the details of what kind of rights can exist, of what is legal and what is illegal, but it does address procedures for ensuring such rights are protected. It covers civil, criminal and border enforcement, some basic principles for internet enforcement, as well as international cooperation.
And one of the main achievements of the EU in this negotiation was to ensure that Acta has been very closely modelled on the European system and several member states have already made it clear that Acta would not oblige them to change their existing legislation.
Is that not what people usually expect from European policy: to raise the standards and then enforce and export them internationally?
All this should be perfectly clear for anyone who cares to read the text of the agreement.
But on a personal note, let me add this: I am a lawyer by training, a liberal-democrat by conviction and a lifelong advocate of human rights and individual liberties.
As a fairly young MEP, I was one of those contributing to the Spinelli report, drafting the first tentative catalogue of human rights which in 1989 formed the basis of the European parliament's declaration of fundamental rights and freedoms.
To negotiate an agreement that would fundamentally harm some of these rights would, for me, be very much out of character.
In any case, it would have been impossible to do so, since I have always approached the negotiating process in a way that was as open and inclusive as possible.
European member states participated in the Acta negotiations and were informed throughout the process.
We have worked in tandem with the European parliament and, as a result, it was the European commission that called on Acta-partners to publicise the draft negotiating texts of April 2010, with which they concurred.
The full and final text has now been available for over a year. It is in the hands of the European parliament and member states now to decide on it.
In order not to obstruct the democratic process, let us first separate the facts from fears and fiction, and not miss this opportunity to take a step further in the global protection of intellectual property rights.
Karel De Gucht is European trade commissioner