The following comment was made on Christian Engström, Pirate MEP’s blog, here:
“The Commission feels it is more appropriate to discuss the SIGNED ACTA-agreement rather then some drafts which are no longer applicable.”
However, they are applicable, as is argued in Question for written answer E-002345/2011 here:
“Question for written answer E-002345/2011
to the Commission
Françoise Castex (S&D)
Subject: Access to the preparatory works of the ACTA Treaty
With regard to the response of 15 December 2010 to my written question on ACTA
(P-9179/2010), I would like to make the following observations.
As the Commission has confirmed, the EU has ratified the Vienna Convention on compliance with international treaties and the ACTA agreement will be applied in accordance with this Convention. Article 32 of the Vienna Convention refers to the ‘Supplementary means of interpretation’ which require access to ‘supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning …’ if the text ‘leaves the meaning ambiguous or obscure’.
In accordance with the Vienna Convention I would like to know whether Parliament will
have access to the preparatory works of the ACTA Treaty while in the process of formulating an opinion and with sufficient time before Parliament gives its opinion on the Treaty?
Answer given by Mr. De Gucht
on behalf of the Commission
Following the entry into force of the Lisbon Treaty, precise arrangements were made between the Commission and the Parliament in order to ensure that the Parliament is fully informed, at all stages of trade negotiations, of the evolution of those negotiations, so that at the end, it is able to provide its informed consent to the Anti-Counterfeiting Trade Agreement (ACTA). In the case of the ACTA negotiations, this included the communication to the Parliament of the different versions of the text which were issued after each negotiating round, as well as reports of the negotiating rounds. Additionally, in the numerous Commission replies to oral and written questions and in its replies to two EP Recommendations and one Declaration, there are detailed considerations and explanations about the negotiations at its different stages.
These documents constitute the key preparatory work of the treaty and provide detailed
information about the circumstances of its conclusion.
In addition to providing these preparatory documents, the Commission services have
provided dedicated briefings to interested Members of the European Parliament on all aspects of the negotiations, after the various negotiating rounds and remain available for any additional clarifications deemed necessary.”
It was a great question asked by Françoise Castex, and an inadequate, evasive, and inaccurate answer by Mr. De Gucht.
The question needs to be referred to the European Court of Justice for legal clarification.
I don’t think Parliament can have been “fully informed” and therefore make an “informed consent” as it does not have ALL the “preparatory works” which it would require to come to a “fully informed” view on the ‘Supplementary means of interpretation’ on ACTA.
Additionally, it should not be left to the Commission to define what “key preparatory works” are. What “key preparatory works” are with regards to ACTA needs to be defined and clarified by the European Court of Justice, for an ultimate legal clarification, and this needs to be done before a vote on the ratification of ACTA by the EP takes place (mooted as around June 2012).
Further, yes, the Commission services have provided dedicated briefings to interested Members of the European Parliament, but it is not clear that all aspects
of the negotiations, all “key preparatory work“, have been provided. The ECJ needs to let the European Parliment know that it has or has not been provided with all “key preparatory work“, and if they have not all been provided, to rule that they must be provided.
Thanks for reading, comments would be appreciated.