The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union
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The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union Duncan Matthews • Petra Zˇikovska´
Published online: 20 August 2013 Max Planck Institute for Intellectual Property and Competition Law, Munich 2013
Abstract This article revisits the arguments, debates and controversies that led up to the European Parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA), and evaluates the implications for the European Union (EU) of the scrutiny of international agreements with provisions on intellectual property rights in the future. The article undertakes these tasks in four stages. First, it examines how Parliament was able for the first time to exercise its power of veto over a draft international agreement negotiated by the Commission on behalf of the EU under the consent procedure of the Treaty on the Functioning of the European Union (TFEU). Second, it reconsiders the rationale for ACTA in terms of why the agreement was perceived as being necessary in the first place, given that other international fora existed for the intellectual property enforcement issues to be addressed. Third, the article reflects on the reasons why ACTA became so controversial that it became the focus of unprecedented public concern in the EU and its Member States, with particular attention paid to lack of transparency in the negotiating process, concerns that fundamental rights and freedoms in the EU would be undermined by provisions of ACTA, and concerns that the agreement would conflict with the acquis communautaire of the EU and with the WTO TRIPS Agreement. Fourth, the article concludes by considering what lessons can be learnt for the future.
D. Matthews (&) Professor of Intellectual Property Law Centre for Commercial Law Studies, Queen Mary, University of London, 67–69 Lincoln’s Inn Fields, London WC2A 3JB, UK e-mail: [email protected] P. Zˇikovska´ JUDr. at MgA Faculty of Law, Charles University in Prague, Na´m. Curieovy´ch 7, 116 40 Praha 1, Czech Republic e-mail: [email protected]
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The Rise and Fall of the Anti-Counterfeiting Trade Agreement
Keywords freedoms
627
ACTA European Union Enforcement Fundamental rights and
1 Introduction On 4 July 2012, the European Parliament, in plenary session, rejected the Proposal for a Council Decision on the conclusion of the Anti-Counterfeiting Trade Agreement (ACTA).1 The vote was unprecedented. The Lisbon Treaty on the Functioning of the European Union (TFEU) had entered into force on 1 December 2009 and, under the TFEU, international trade agreements now require Parliament’s consent. The ACTA vote was the first time that Parliament had exercised its new powers under the consent procedure to reject such an agreement. Given that the ACTA negotiating process had begun on 23 October 2007, almost two years before the TFEU had entered into force, this could not have been foreseen. Nor could it have been anticipated that the highly technical set of provisions on intellectual property enforcement contained in ACTA would
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