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European Commission

Karel De Gucht

European Commissioner for Trade

ACTA: Making the right choice

European Parliament, International Trade Committee /Brussels

20 June 2012

Honourable Members,

Thank you for having me here on the eve of a crucial decision.

Tomorrow, you will have to make a choice. It is a choice of two parts.

The first has to do with fundamental rights and freedoms.

The second has to do with the substance of the agreement: the enforcement of intellectual property rights, in Europe and in the rest of the world.

As you know, the Commission has asked the European Court of Justice for its opinion on whether the Anti-Counterfeiting Trade Agreement was compatible with the treaties and in particular with our Charter of Fundamental Rights.

My considered view as a lifelong supporter of human rights and fundamental freedoms, is that there is nothing to fear in this agreement. As I have said before, ACTA is not an attack on our liberties, it is a defence of our livelihoods.

This is because we do not have to modify any part of our internal legislation, the so-called acquis communautaire. What is legal today in the European Union, will remain legal tomorrow once ACTA is ratified. And what is illegal today will remain illegal tomorrow.

But I know that others take a different view.

This is why the European Commission referred ACTA to the European Court of Justice. Because those rights and freedoms need to interpreted correctly.

Tomorrow, one part of your vote is about whether the referral of ACTA to the ECJ was the correct decision.

You may decide that the European Parliament should rush to condemnation of this agreement. But you may also decide that it should wait, hear the Court and then make a decision after calm deliberation of all the facts.

I am not at all in favour of a "gouvernement des juges" or government by the Court but on an issue of the correct interpretation of fundamental rights, you may prefer to hear the authoritative view of the Court of Justice. I note that, last year, the Greens asked for this same Court referral. Now, they no longer support it but last year's issues are the same as those of today.

The other part of your choice concerns the content of the agreement: the enforcement of intellectual property rights.

We are in an economic crisis. If Europe wants to have a successful economy it needs firms that can compete for the tasks that add the highest value to a product. And the way they make money and create jobs from those ideas is by turning them into intellectual property, protecting them under the law and ensuring the law is enforced.

So as you come to make your choice about how to vote tomorrow, I believe you also need to consider the signal you will be sending to the rest of the world.

Honourable Members, in case there is any doubt, I am here to argue that you postpone your decision on ACTA.

If you decide for a negative vote before the European Court rules, let me tell you that the Commission will nonetheless continue to pursue the current procedure before the Court, as we are entitled to do. A negative vote will not stop the proceedings before the Court of Justice.

If the Court questions the conformity of the agreement with the Treaties we will assess at that stage how this can be addressed.

However, I expect that the Court will instead find ACTA to be fully in conformity with the Treaties.

In that case, we will be prepared to do two things:

First, I would consider proposing some clarifications to ACTA. For example on enforcement in the digital environment. We could look at this in the light of the discussions you will have had on legislative proposals which the European Commission is set to put before the Parliament and the Council. Or for example, we could seek to clarify further the meaning of 'commercial scale'.

I am also open to a discussion on what sharing information means in relation to the challenges one faces with respect to the protection of intellectual property. It is indeed a new challenge for the classical approach of IPR. But does this discussion not rather have its place in the debate on the substantive law, not in ACTA, which is solely about enforcement?

These are important reasons to pause for reflection as I believe we will all make a better decision on ACTA if we have a clearer view of the future direction of the European intellectual property system.

Second, once we will have identified and discussed these possible clarifications, I would intend to make a second request for consent to the European Parliament. Whether the Parliament will consider it under this legislature or the subsequent one, will be for you to decide.

Honourable Members,

As Europeans I believe that we all share profound respect for individual freedom.

But I also know that freedom needs a framework. In a diverse society no one is free if freedoms are exercised absolutely.

It is a fragile balance. We should all tread carefully.

I hope that you will bear that in mind that as you vote.

Thank you very much for your attention.


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