An internal debate has been  simmering  for some time in the European Parliament, questioning  the  legality of ACTA  under the EU Treaties.

Now it could heat up further, following a  request last week  to the Legal Affairs committee. The request calls  for a referral to the European Court of Justice (ECJ). It seeks to put a  question to the ECJ, asking  very simply if ACTA is in line with EU Treaties?  

It is an open question but one which is very important in light of the parallel questions being asked on the other side of the Atlantic.

Indeed, it raises  another, very significant political question. If the EU fails to do due diligence in respect of the legal basis of ACTA, will it end up

signing something which the US itself cannot ratify?

The request is being made by the Green MEP Jan Albrecht .  He  wants the European Parliament to ask the ECJ this question:

'Is the envisaged Anti-Counterfeiting Trade Agreement (ACTA) compatible with the provisions of the Treaty on European Union and Treaty on the Functioning of the European Union?'  

At this stage, he  is only asking the co-ordinators of the JURI committee to put the matter on the agenda for debate at the next committee meeting on 21 March. The co-ordinators of the JURI committee are Tadeusz Zwiefka (EPP), Diana Wallis (ALDE), Bernhard Rapkay(S & D) and Syed Kamall (ECR).  

If they refuse the request, he is still permitted under European Parliament procedure to table the question for discussion at the meeting, but will need the support of a majority of other members and the Chair. This will not necessarily be an easy process, but it could be interesting.

The Legal Affairs committee includes Marielle Gallo, whose report last year sought to underpin the copyright industries agenda. On the other side of the debate, it includes French opponent of ACTA Francoise Castex, and the Pirate Party MEP Christian Engstrom.

Given the doubts raised by a group of European law professors about the compatibility of ACTA with EU law, it would seem to be a valid question.

 The move parallels a similar line of questioning which is being raised in the US. A group of heavyweight US law professors led by Professor Sean Flynn of the University of Washington, College of Law,  has criticised the legal basis of ACTA, saying that it is unconstitutional.

The thrust of their argument is that ACTA has been negotiated by the United States Trade Representative, which takes it remit directly from the President. However, ACTA regulates intellectual property law at a US domestic level and as such would require the consent of the US Congress. Therefore,  the President does not have the authority to enter into such an agreement without Congressional approval.

In a formal submission to the USTR, they say:

The executive branch lacks constitutional authority to enter international agreements on intellectual property without congressional consent. The regulation of intellectual property and of foreign commerce, which are at the heart of ACTA?s terms, are Article I Section 8 powers of Congress; the President lacks constitutional authority to enter international agreements in this area as sole executive agreements lacking congressional authorization or approval.

This therefore raises an important issue for the EU. If ACTA were indeed unconsitutional  in the US, and the US itself could not ratify it, then we must seriously ask if the EU should blindly approve it.

The correct attribution for this article is: Monica Horten (2011) Should the European Court review ACTA? http://www.iptegrity.com 12 March 2011

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