[governance] Re: [A2k] EU Council refuses to release secret ACTA documents

[Jeffrey A. Williams]

Ante and all,

  This is indeed unfortunate and not seeminly in keeping with
the EU's position of openess and transparency.  Very undiplomatic
of them to act is suh a errant and inconsistant manner.

  Perhaps the EC will rethink this action are return to their stated
principals soon.

Ante wrote:

> Our yesterday's PR.
>
> We believe that, to stop ACTA in Europe, parliaments (both national and
> European Parliament) have to make Parliamentary scrutiny reservations.
>
> Without such reservations, ministers can just vote yes in the European
> Council. With such reservations, they can not just do that. That may block a
> Council qualified majority.
>
> >From there on parliaments can ask for transparency, study the vetoes on
> aspects of ACTA they have, and proportionality.
>
> The EP reservation is needed to study the text and decide whether the EP
> vetoes apply and should be used.
>
> http://action.ffii.org/acta/Analysis
>
> kind regards,
>
> Ante
>
> =======================================================================
> EU Council refuses to release secret ACTA documents
> =======================================================================
>
> 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."
>
> =======================================================================
> Links
> =======================================================================
>
> Note FFII's confirmatory application letter is attached below.
>
> *  FFII opposes stealth legislation, demands ACTA documents:
> http://press.ffii.org/Press_releases/FFII_opposes_stealth_legislation%2C_demands_ACTA_documents
>
> * Council letter refusing to release ACTA documents:
> http://action.ffii.org/acta/Analysis?action=AttachFile&do=get&target=08-1835en.wes.ws-jj.doc
> http://action.ffii.org/acta/Analysis?action=AttachFile&do=get&target=08-1835en.wes.ws-jj.pdf
>
> * FFII ACTA analysis:
> http://action.ffii.org/acta/Analysis
>
> * Documents released by Canadian government:
> http://www.michaelgeist.ca/component/option,com_docman/task,doc_download/gid,21/
>
> * Open letter by more than 100 public interest organizations:
> http://www.essentialaction.org/access/index.php?/archives/173-Secret-Counterfeiting-Treaty-Public-Must-be-Made-Public,-Global-Organizations-Say.html
> (You will find more information here on concerns that ACTA may undermine
> access to low-cost generic medicines.)
>
> * ACTA documents on the Council website:
> http://register.consilium.europa.eu/servlet/driver?page=Result&lang=EN&typ=Advanced&cmsid=639&ff_COTE_DOCUMENT=&ff_COTE_DOSSIER_INST=&ff_TITRE=anti-counterfeiting+trade+agreement&ff_FT_TEXT=&ff_SOUS_COTE_MATIERE=&dd_DATE_DOCUMENT=&d
> * Electronic form on the Council website to request documents:
> http://register.consilium.europa.eu/servlet/jsp/MailAccessPrivacy.jsp?&lang=EN&cmsid=928
>
> * Permanent link to this press release:
> http://press.ffii.org/Press_releases/EU_Council_refuses_to_release_secret_ACTA_documents
>
> =======================================================================
> Contact
> =======================================================================
>
> Benjamin Henrion
> FFII Brussels
> +32-2-414 84 03
> +32-484-566109
> bhenrion at ffii.org
> (French/English)
>
> Ante Wessels
> + 31 6 100 99 063
> ante at ffii.org
> (Dutch/English)
>
> =======================================================================
> 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
> scrutinise 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.
>
> Sincerely yours,
> Ante Wessels
> 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.
>
> _______________________________________________
> A2k mailing list
> A2k at lists.essential.org
> http://lists.essential.org/mailman/listinfo/a2k

Regards,

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