It is now clear that it is not only the EU-Korea deal which is as directive-like and law-like you can get. The same goes for the currently negotiated so called CETA agreement with Canada. It's a directive lookalike. Chunks of EU directive articles are simply copied. I guess that's the reality behind the recent statements from the Commission and Member States officials that ACTA will not go beyond EU law, or as they say here in Brussels, the Acquis Communautaire.
I'm trying to figure out exactly what and how much is copypasted from i.e. IPRED1 - one of the most controversial and far reaching IPR directives passed in the EU for a long time. Go to the Canada agreement articles and then look at the corresponding EU directive articles. When I'm done you should be able to klick on history and then choose the preselected revisions for a complete comparison. For now you have to bear with that the wiki diff gets out of sync after a couple of articles. Please come back later (or help me out...).
I've also tried to get more information on why the ACTA negotiations are secret. As you may know, FFII argues the negotiations cannot lawfully be held secret because ACTA is, if not law as such, in part legislative in character. And yes, if ACTA looks anything like the Canada agreement, then this is true.
Which articles are chosen? On what basis? Where are the balancing amendments? How can the Commission interpret its mandate so extensively that it in practive becomes a legislator? And how can National Parliaments stand on the side looking at what is happening as if it did not concern them? What if the Commission says trade union rights are included in the next "Free Trade Agreement"? Or environmental law?
This is exaclty what a group of MEPs asked the Commission just before Christmas. I a mild way, but yet, that very subject matter is just as controversial as IPR:
"What safeguards does the FTA contain in relation to environmental and trade union rights?"
I think it is clear that the confidentiality of the negotiations is a choice, not binding for anyone, except by that choice. And if understand the EFF research right, the US has chosen a format which does not require secrecy, it had to be additionally agreed. I got a copy of the whole statement by all ACTA participants (partly quoted by Mr McCoy before) about "Maintaining Confidentiality of Documents" from Mr. Pedro Velasco at DG Trade. According to Mr. Velasco, its "legal value" is unclear, but for the Commission it does not matter because "according to Article 4 of the Regulation (EC) No 1049/2001, access to a document shall be refused where disclosure would undermine the protection of international economic relations (exception 1a, 3rd and 4th indent). This exception applies in the present case, as the documents were drafted by third parties and these third parties oppose, at this stage, their public disclosure, pursuant to Article 4.4." (this is as far as I understand Mr. Velasco's interpretation).
It was very interesting to talk to Mr. Velasco. He said the negotiations could be understood, in a very very simplified way, as you basically could get cheap cars in exchange for IPR enforecement laws.
Interestingly enough, his materials published on the interenet also provided some kind of explanation to why people are afraid of having their iPods searched. Under "What is new" in a presentation about Enforcement of IPR Mr. Velasco says:
[it] "No longer excludes from the scope of the regulation counterfeit or pirated goods in a traveler's personal baggage where such goods are suspected to be part of a larger-scale traffic."
I hope to put more info about the understanding of the McCoy agreement soon.
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