Draft Decision: Council Of EU One Step Closer To Sign ACTA

As already reported in my earlier posting, the European Union is just about to sign ACTA, the Anti-Counterfeiting Trade Agreement negotiated between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America. ACTA is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement.

Yesterday, the EU Council has published Document 12192/11 conveying a draft Decision saying that the President of the Council (i.e. Mr Herman Van Rompuy) shall be authorised to designate the person(s) empowered to sign the Agreement on behalf of the Union. Moreover, the Official text of ACTA has been published with Document 12196/11.

It is to be understood that this text is a Draft only; however, the formal adoption thereof surely will go through on one of the next sessions of the EU Council. However, afterwards that matter will be dealt with in the European Parliament as well as in each of the EU Member States.

ACTA is debated controversially because of the secrecy of some of the negotiation rounds. Moreover, there are doubts as to if ACTA is compatible with EU Acquis Communautaire; see my earlier posting there.

ACTA was born out of the frustration of the major industrialised economies with progress on monitoring and norm-setting on the enforcement of intellectual property rights in multilateral fora. In the WTO Council for TRIPS (‘TRIPS Council’), Brazil, India and China have consistently blocked the inclusion of enforcement as a permanent agenda item. At the World Intellectual Property Organisation (WIPO), enforcement issues were relegated to a purely advisory committee.

One of its features is the creation of another institutional structure in the field of Intellectual Property law besides WIPO and WTO, i.e. the ACTA Committee provided for in Article 36. This Committee will be entitled to:

• review the implementation and operation of ACTA;
• consider matters concerning the development of ACTA;
• consider any proposed amendments to ACTA;
• decide upon the terms of accession to ACTA of any Member of the WTO; and
• consider any other matter that may affect the implementation and operation of ACTA.

The Committee may decide to:

• establish ad hoc committees or working groups to assist the Committee in carrying out its responsibilities or to assist a prospective Party upon its request in acceding to ACTA;
• seek the advice of non-governmental persons or groups;
• make recommendations regarding the implementation and operation of ACTA, including by endorsing best practice guidelines related thereto;
• share information and best practices with third parties on reducing intellectual property rights infringements, including techniques for identifying and monitoring piracy and counterfeiting; and
• take other actions in the exercise of its functions.

Perhaps, on EU level  the function of the ACTA Committee should also be discussed in relation to the planned new compentences of OHIM in the field of IP enforcement.