Top EU Politicians Call For TAFTA/TTIP's Corporate Sovereignty Provisions To Be Removed

from the going,-going,-gone dept

Back in March, we reported on the growing rejection of corporate sovereignty in TAFTA/TTIP, even by the German government. Since then, criticism of investor-state dispute settlement (ISDS), which puts corporations above nations, has become even louder and more widespread. Some significant manifestations of that took place during a plenary session of the newly-elected European Parliament, where Karel De Gucht, the commissioner leading the negotiations for the EU, made a brief statement on TAFTA/TTIP. Here's how one member of the European Parliament (MEP) responded, as reported by The Parliament magazine:

During Tuesday's plenary session GUE/NGL deputy Helmut Scholz addressed De Gucht, saying, "You carried out a public consultation on the inclusion of an investor state dispute settlement (ISDS) clause which received over 115,000 responses.

"Citizens don't want ISDS; neither in TTIP nor in the agreement with Canada," the German deputy argued.

Many of those 115,000 responses were made using Web sites that offered a (negative) template for responding. That means the European Commission will probably try to dismiss them as bulk submissions. But others will be much harder to ignore -- like this rigorous response made by more than a hundred prominent scholars from all over Europe and across the globe.

Also speaking at the plenary session was the Scottish MEP David Martin, who issued the following warning:

The Socialists were proud to be at the birth of TTIP, and we do not want to be its assassins, and I want to tell the Commission clearly now, though, that if we have to be, we will be. And that's why we want the Commission to listen carefully to our concerns.

Martin's words are doubly significant. First, because TTIP will not pass without the support of the Socialists, so the threat to kill the agreement is not an idle one. And secondly, because Martin played a key role in stopping ACTA two years ago, when he was the rapporteur -- the European Parliament's expert -- for the brief, and advised his fellow MEPs to vote against the agreement. The video of Martin's speech linked to above begins by showing a number of MEPs holding up placards against TTIP, and that's not the only demonstration that took place recently. A small group of protesters disrupted the latest stakeholder meeting in Brussels, before being bundled fairly roughly from the room: Another senior socialist politician with serious concerns about TTIP, and about corporate sovereignty in particular, is the MEP who chairs the influential committee on international trade, the principal one for TAFTA/TTIP:

German Socialist Bernd Lange, who said procedural rules would stop [right-wing MEP] Le Pen grandstanding or using sessions for publicity, also warned that an investor-state dispute settlement mechanism should be dropped from TTIP. If it wasn't, he said, the Parliament’s next resolution on TTIP could be negative.

Perhaps even more surprisingly, the most powerful individual in the EU, Jean-Claude Juncker, has also come out against ISDS in his "Political Guidelines for the next European Commission" (pdf), published earlier this week:

As Commission President, I will also be very clear that I will not sacrifice Europe's safety, health, social and data protection standards or our cultural diversity on the altar of free trade. Notably, the safety of the food we eat and the protection of Europeans' personal data will be non-negotiable for me as Commission President. Nor will I accept that the jurisdiction of courts in the EU Member States is limited by special regimes for investor disputes. The rule of law and the principle of equality before the law must also apply in this context.

Given this resistance to corporate sovereignty at the highest levels of the European Commission and European Parliament, it's hard to see how De Gucht can continue to push for it in his negotiations with the US. After all, once TAFTA/TTIP is agreed, the European Parliament will have a yes/no vote, and will be unable to modify it. That means the only way to block ISDS is to reject the whole deal -- just as it happened with ACTA for the same reason.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: corporate sovereignty, david martin, eu, investor state dispute system, isds, jean-claude juncker, karel de gucht, politics, tafta, ttip

Water Cannons Turned On Peaceful TTIP Protestors In Brussels As Public Barred From Negotiations

from the first-signs-of-panic dept

The TAFTA/TTIP negotiations remain almost totally lacking in real transparency, with little information about what exactly is happening behind closed doors being released to the public -- and most of that coming from the EU side. This has naturally forced those excluded from the inner circle to speculate about what might be going on -- and, inevitably, to fear the worst. According to the US Ambassador to the EU, Anthony Gardner, and the EU Commissioner responsible for TTIP, Karel De Gucht, that's unacceptable:

The ambassador and commissioner agreed that NGOs and civil society organisations were spreading disinformation about TTIP through social media, such as Twitter and Facebook. De Gucht said that a number of campaigners were "spreading rumours on false grounds."

Gardner added: "There's a void [in information]. The void is being filled more and more by social media."

That's interesting not just for the refusal to admit that it's lack of transparency that is creating this void, but also for the barely-concealed fear of social media, probably because it can't be controlled in the way that traditional media can. Gardner and De Gucht made their comments in Brussels, where they were both speaking at the European Business Summit, which describes itself as:

Europe's key meeting place for business leaders and decision makers, where Business and Politics Shape the Future.

Business, politics -- but not civil society, which, as usual, was not invited to shape the future. So, instead, it was forced to stay outside the meeting, on the streets. Here's what happened while business and politics were busy inside:

This Thursday morning over a thousand people were in the streets of Brussels, attempting to peacefully protest against austerity and the proposed great transatlantic market (TTIP) which were being discussed in the absence of citizens at the European Business Summit.

In an unprovoked move 281 people were violently arrested, including Belgian and European parliamentarians and candidates, senior trade union officials, farmers and many elderly citizens.

As one of those involved noted:

"We came into the streets because our political leaders are not listening. It seems they've only got ears for big business and their representatives who co-organised the European Business Summit. And to be treated so brutally, as if we were violent criminals -- when our actions were entirely peaceful."

Although that press release may not come from a totally objective source -- the D19-20 Alliance is an anti-austerity group -- reports and images on other sites confirm that the Belgian police were extremely heavy-handed, deploying water cannons and tying demonstrators' wrists together behind their backs for what seems to have been a polite and low-key peaceful protest. This extraordinarily disproportionate reaction would indicate an increasing nervousness on the part of the authorities that Europe is about to see a wave of mass demonstrations against TTIP just as happened with ACTA, leading to this brutal and ham-fisted attempt to nip it in the bud.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: brussels, karel de gucht, protests, social media, tafta, ttip

In Response To Growing Protests, EU Pulls Corporate Sovereignty Chapter From TAFTA/TTIP To Allow For Public Consultation

from the more-of-this,-please dept

Here on Techdirt, we've been writing about the dangers of corporate sovereignty for a while. In recent months, more and more people and organizations have pointed out that the plan to include an investor-state dispute settlement (ISDS) in the TAFTA/TTIP agreement currently being negotiated is fraught with dangers -- and also completely unnecessary given the fair and efficient legal systems that exist on both sides of the Atlantic. It seems that this chorus of disapproval has finally been noticed, in Brussels at least:

EU Trade Commissioner Karel De Gucht today announced his decision to consult the public on the investment provisions of a future EU-US trade deal, known as the Transatlantic Trade and Investment Partnership (TTIP). The decision follows unprecedented public interest in the talks. It also reflects the Commissioner's determination to secure the right balance between protecting European investment interests and upholding governments' right to regulate in the public interest. In early March, he will publish a proposed EU text for the investment part of the talks which will include sections on investment protection and on investor-to-state dispute settlement, or ISDS. This draft text will be accompanied by clear explanations for the non-expert. People across the EU will then have three months to comment.

That's a hugely significant admission that the European Commission's attempt simply to push ISDS through without explanation or consultation was a major tactical error. By failing to address the manifest problems with investor-state disputes, the European Commission allowed the overall sentiment towards TAFTA/TTIP to become increasingly negative. Clearly, what De Gucht hopes to achieve with this three-month pause is to convince people that ISDS is not a threat to national sovereignty, and thus to salvage the agreement as a whole.

He may have problems trying to do that. The European Commission press release quoted above includes a section with background information about corporate sovereignty. It's heavily based on an earlier Commission "fact sheet" entitled, "Investment Protection and Investor-to-State Dispute Settlement in EU agreements" (pdf). Elsewhere, I have explained why the arguments offered are almost entirely wrong or misleading. So it's not at all clear how the European Commission will manage to win people over to an idea that is entirely for the benefit of corporates, and offers nothing but disadvantages for the general public.

Still, De Gucht's move to open up at least this area of TAFTA/TTIP for public discussion is to be welcomed, even if it was made rather unwillingly. Now that the European Commission has finally admitted that it is indeed possible to release its negotiating text in order to allow a public debate, we must have similar transparency for the rest of the agreement.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: corporate sovereignty, european commission, isds, karel de gucht, tafta, ttip

European Commission Admits It Plans To Put 'Corporate Christmas List' Of IP Demands Into TAFTA/TTIP

from the acta's-back dept

A few months ago, we quoted the EU trade commissioner Karel De Gucht, who is responsible for handling the TAFTA/TTIP negotiations on the European side, as saying:

"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".

Well, either that was just more misdirection, or he's not in control of his staff. Because we learn from a stunning report of a little-publicized meeting between corporate lobbyists and the EU's negotiator on intellectual monopolies, Pedro Velasco Martins, that putting many of the worst features of ACTA into TAFTA/TTIP is precisely what the European Commission has planned. Here's the background:

Taking place at the American Chamber of Commerce offices in Brussels, the purpose of the two hour exchange was to strategize between businesses and the Commission in order to make sure that the maximum level of new IP restrictions will be written into the treaty. Present at the meeting were representatives from a range of the very largest multinational corporations. Among these were TimeWarner, Microsoft, Ford, Eli Lilly, AbbVie (pharmaceutical, formerly Abbott) and the luxury conglomerate LMVH. The participant list also included representatives from Nike, Dow, Pfizer, GE, BSA and Disney - among others. Also present was Patrice Pellegrino from OHIM [Office for Harmonization in the Internal Market], the EU/Commission agency responsible for trade marks in the EU.

As you will notice, most of those companies are from the US. Nothing wrong that, of course, except when you consider the following:

Controversially, the supposedly neutral Commission negotiator and the OHIM representative not only defined themselves as allies with the businesses lobbyists. They went far beyond this and started to instruct the representatives in detail on how they should campaign to "educate" the public in order to maximise their outcome in terms of industry monopoly rights. In particular, concerns from elected representatives, such as the European Parliament -- as well as civil society criticisms about ever increasing intellectual property rights -- were to be kept out of the public debate.

Here's what the European Commission really wants to see in TAFTA/TTIP:

Commission negotiator Velasco Martins revealed the existence of a secret list of corporate demands for new intellectual property rights in the transatlantic treaty. Previously -- towards the public and the Parliament -- the Commission has created the impression that intellectual property rights will be downplayed. The only IP right mentioned has been geographical indications, a minor issue which few are concerned about. In reality, the Commission now revealed that they have received "quite a Christmas list of items" on IP from corporate lobbyists and that they are working to implement this list. The list has already been discussed with the US in several meetings, in person as well as online.

The Christmas list covers almost every major intellectual property right. On patents, industry had shown "quite an interest" especially on the procedures around the granting of new patents. On copyrights the industry wants to have the "same level of protection" in the US and EU; in reality this always means harmonization up which results in more restrictions for the general public. On plant variety rights the pharma sector has lobbied for "higher levels" of protection. On trademarks the corporate lobbyists had made classification-related requests to the Commission. Additionally there had been a lot of interest in trade secrets.

There's also stuff from our old friend ACTA -- stricter enforcement:

According to the negotiator, the most repeated request on the Christmas list was in "enforcement". Concerning this, companies had made requests to "improve and formalize" as well as for the authorities to "make statements". The Commission negotiator said that although joint 'enforcement statements' do not constitute "classical trade agreement language" -- a euphemism for things that do not belong in trade agreements -- the Commission still looks forward to "working in this area".

That seems to go against explicit promises made earlier by the European Commission:

Since the beginning of the TTIP negotiating process, it is very clear that the eventual agreement on intellectual property rights will not include elements that were controversial in the context of ACTA. For example, the ACTA provisions on IPR enforcement in the digital environment (ACTA articles 27.2 to 27.4) will not be part of the negotiations. Neither will ACTA's provisions on criminal sanctions.

The report of the meeting contains many other fascinating insights into the real thinking of the European Commission. For example, apparently there is some relief that people are focusing on the horrors of corporate sovereignty, since that has allowed work on the "corporate Christmas list" to proceed unnoticed. There was also a warning that it is probably only a matter of time before details get out:

"Lots of people are waiting for the first slip, the first leak"

In the wake of the good things that have already flowed from Edward Snowden's leaks, and the enhanced status of whistleblowers today, that seems increasingly likely to happen. Finally, there was a useful hint of how the European Commission is going to attempt to justify bringing back ACTA in TAFTA/TTIP:

A recurring theme was that the public needs to be re-educated to understand the value of industry monopoly rights.

According to Pellegrino, the key to doing this is a number of pro-IP reports that will or have been released by OHIM.

One recent report was highlighted. It claims that every fourth job in the EU only exists because of intellectual property regulations.

That would presumably be this report, which claims ridiculously that:

IPR-intensive industries contribute

26% of employment and
39% of GDP in the EU

Techdirt wrote about this back in October, where we pointed out that it obtains these unrealistically high figures by including a whole range of industries that use things like copyright and patents only in the most limited and tangential way. Expect to see more of these exaggerated claims, based on similarly shoddy methodologies, appearing in the next few months.

That OHIM is putting out such propaganda isn't perhaps too surprising -- it's just a form marketing for its activities. But what is shocking is that an OHIM representative, along with the most senior EU negotiator for intellectual monopolies, should be offering detailed advice to US companies on how to subvert the TAFTA/TTIP negotiations by trying to keep the dissenting views of Members of the European Parliament and EU civic groups out of the debate. That's a direct assault on fair and open discourse, and ultimately undermines European democracy at a time when many are calling into question the entire idea of the European Union.

At the very least, the European Commission should set up a formal inquiry into what happened at this meeting, to make sure such blatant favoritism is avoided in future. If it doesn't, we'll know definitively that not only is it happy to see corporates on both sides of the Atlantic given preferential treatment during TAFTA/TTIP, but that it really doesn't care who knows. Meanwhile, those who took to the streets of Europe to fight off ACTA last year may want to start getting their boots ready.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: acta, copyright, karel de gucht, patents, pedro velasco martins, tafta, trade agreements, treaty, ttip
Companies: abbvie, bsa, disney, dow, eli lilly, ford, ge, lvmh, microsoft, nike, pfizer, time warner, us chamber of commerce

European Commissioner Claims 'Nothing Secret' About TAFTA/TTIP, Tries To Defend Corporate Sovereignty

from the getting-desperate dept

After lurking in the shadows for a few months, the mega transatlantic trade deal TAFTA/TTIP is starting to hit the mainstream media. Here, for example, is an excellent article by George Monbiot in the Guardian, which rightly singles out corporate sovereignty as a key threat:

Panic spreads through the European commission like ferrets in a rabbit warren. Its plans to create a single market incorporating Europe and the United States, progressing so nicely when hardly anyone knew, have been blown wide open. All over Europe people are asking why this is happening; why we were not consulted; for whom it is being done.

They have good reason to ask. The commission insists that its Transatlantic Trade and Investment Partnership should include a toxic mechanism called investor-state dispute settlement. Where this has been forced into other trade agreements, it has allowed big corporations to sue governments before secretive arbitration panels composed of corporate lawyers, which bypass domestic courts and override the will of parliaments.

In a clear sign that the European Commission is starting to worry that people are waking up to the dangers present in TAFTA/TTIP, Karel De Gucht, the commissioner for trade, has written a response to Monbiot's article. Techdirt readers will recall that it was largely because of De Gucht's handling of ACTA that it suffered an ignominious defeat in the European Parliament last year. Sadly, it looks like he has learned nothing from the experience:

George Monbiot, in his article on the negotiations for a Transatlantic Trade and Investment Partnership, claims the European commission has tried to "keep this process quiet" (Chickens in chlorine? It's what free trade's about, 3 December). This is laughable. Every step of these negotiations has been publicly announced and widely reported in the press. The commission has regularly consulted a broad range of civil society organisations in writing and in person, and our most recent meeting had 350 participants from trade unions, NGOs and business.

It's true, every step of the negotiations has indeed been announced, but only in terms of what was happening when -- hardly very informative. What people want to know is what is being said during those negotiations, and very little of that has been released. They would also like the opportunity to provide their views on the subject, and to be listened to. It's not clear who those "350 participants" mentioned above might include, or what the exact breakdown of numbers is. What we do know is that of 130 "meetings with stakeholders" that took place earlier this year, 119 of them were with large corporates and their lobbyists.

Here's an interesting point raised by De Gucht:

no agreement will become law before it is thoroughly examined and signed off by the European parliament and 29 democratically elected national governments -- the US government and 28 in the EU's council.

I've not seen this misdirection before, but I'm sure we will in future. It seeks to convey the idea that nothing is final, and that the European Parliament will be able to examine and approve the agreement before it is ratified. Strictly speaking, that's true -- with two important caveats. First, that the European Parliament cannot change a single comma of the agreement that is presented to it, whatever horrors it finds there. And secondly, the "signing off" is all or nothing: either it accepts everything, or rejects it. Given the exaggerated claims about the agreement's benefits, the European Parliament will be under huge pressure not to reject it, even if it contains a truly awful chapter on corporate sovereignty, for example.

On the subject of supposed benefits, De Gucht of course trots out the big numbers:

we do not take Monbiot's extreme view that investment protection agreements (IPAs) are "toxic" attempts to put monster corporations in charge of our destinies. His exaggerated fears are no reason to abandon a deal with the US that could create £100bn in new growth for Europe.

No justification for refusing to recognize that ISDS places corporations above nations is offered, just a dogmatic statement. But it's worth remembering that the £100 billion -- which comes from the €119 billion figure in the European Commission's report -- is for 2027, is the best-case figure, and is anyway unlikely to be achieved. That's because it assumes massive deregulation of health and safety standards that will to be too much even for a European Parliament under pressure to accept the deal.

There then follows this comment from De Gucht:

(Contrary to Monbiot's claims, the economic impact of free trade agreements has been positive. For example, Europe's agreement with South Korea has seen our exports rise by 24% in its first two years.)

Monbiot was quoting figures Techdirt used earlier this year in the context of NAFTA and KORUS. I find it interesting that De Gucht underlines the success of the agreement with South Korea. That also applies to investments: according to the European Commission's own site on the agreement with South Korea, "European companies are the largest investors in South Korea." And yet it turns out that there are no corporate sovereignty provisions in the agreement: it would seem that even without them, European companies are perfectly happy to make significant investments in South Korea, so why does the European Commission insist ISDS must be a part of TAFTA/TTIP?

Here's De Gucht's only attempt at a justification:

In reality, these IPAs [investment protection agreements] protect job- creating investment from discrimination and unfair treatment. The UK has benefited, with 15 British companies launching cases under investment agreements in the last five years.

Well, let's look at the most recent of those cases, as listed in the annual report on ISDS published by the United Nations Conference on Trade and Development. In 2012, UK companies concluded corporate sovereignty cases against the following nations: Argentina, Tanzania and Hungary. New ones were begun against Hungary, Indonesia, Pakistan and Uganda. That's pretty much as you'd expect: most cases were brought against governments in emerging economies where UK companies might be concerned about the judicial systems (whether or not that concern was justified is another matter.)

But those cases have no bearing on TAFTA/TTIP, which is purely between the US and EU, and therefore involves only the judicial systems of those two areas. Nobody could seriously claim that investors will fail to receive fair hearings in either, so De Gucht's invocation of other corporate sovereignty cases elsewhere is simply irrelevant.

He concludes by making some striking assertions:

EU investment agreements will explicitly state that legitimate government public policy decisions -- on issues such as the balance between public and private provision of healthcare or "the European ban on chicken carcasses washed with chlorine" -- cannot be over-ridden. We will crack down on companies using legal technicalities to build frivolous cases against governments. We will open up investment tribunals to public scrutiny -- documents will be public and interested parties, including NGOs, will be able to make submissions. Finally, we will eliminate any conflicts of interest -- the arbitrators who decide on EU cases must be above suspicion.

Of course, what he omits to mention here is that the EU is in no position unilaterally to insist: these things will only happen if the US agrees to them, and that seems highly unlikely, especially on transparency matters, where the US has shown itself completely unwilling to open up. Indeed, implicitly claiming that he will force the US to accept these conditions as part of the deal will make it more unlikely that it agrees to them.

De Gucht ends his assault on Monbiot with this stern admonition:

We should focus on the facts.

We should indeed, because they show quite clearly that the economic benefits of TAFTA/TTIP are likely to be extremely modest. They're certainly not worth the price to be paid in terms of loss of national sovereignty as a result of ISDS, or the enhanced corporate control of regulation on both sides of the Atlantic, recently revealed in the latest leak about the negotiations, which remain as secret and undemocratic as ever, despite claims by De Gucht to the contrary.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: corporate sovereignty, eu, investor state dispute settlement, isds, karel de gucht, tafta, ttip

European Commission: ACTA Is Dead, Long Live ACTA?

from the hidden-in-plain-sight dept

The first six months of 2012 saw Europeans taking to the streets in order to kill off ACTA in the European Union. Against all the odds, they succeeded in that aim, as the European Parliament voted to reject ACTA on 4 July last year. That defeat has certainly been burned into the memories of Karel de Gucht, the EU Commissioner responsible for negotiating first ACTA and now TAFTA/TTIP. When he was asked whether the latter might see ACTA sneak in by the backdoor, here's what he replied:

"ACTA, one of the nails in my coffin. I'm not going to reopen that discussion. Really, I mean, I am not a masochist. I'm not planning to do that.

If the Commission advances new basic legislation, which I think she should, we will revisit the question, but I'm not going to do this by the back door".

So you might think that ACTA is definitively dead and buried in the EU. But then along comes a new free trade agreement, this time between the EU and Singapore, which has the following section, Article 11.44, paragraph 2 (pdf):

In determining the amount of damages for infringement of intellectual property rights, a Party's judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

Those with good memories may recall that something similar was to be found in ACTA, and that it was one of the problematic areas that led the European Parliament to reject the treaty. In fact, it's not similar, it's word-for-word identical with Article 9, paragraph 1 of ACTA (pdf). And it's not the only section that's been cut-and-pasted from ACTA: several other paragraphs are also direct copies.

This raises an interesting question. At the moment, the EU-Singapore FTA has only been "initialled": that means it must still be approved by the European Commission, the Council of Ministers representing the member nations, and the European Parliament. So will the EU's MEPs reject the new trade agreement because it represents ACTA by the backdoor -- or at least a part of it? That seems unlikely.

But if the European Parliament does pass the EU-Singapore FTA, de Gucht might then argue that the same sections from ACTA can now be pasted into TAFTA/TTIP, since they are no longer problematic. And if he does so, perhaps he will be tempted to include a few more sections from ACTA, on the grounds that he is doing nothing "by the backdoor", but doing it in the full view of everyone....

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, europe, european commission, european parliament, karel de gucht, singapore, trade agreements

EU's Chief Negotiator Has Learned Nothing From ACTA, Will Negotiate TAFTA In Secret

from the not-a-good-idea dept

The EU trade Commissioner, Karel De Gucht, was a driving force behind ACTA, and apparently he's learned nothing about why ACTA failed so spectacularly in Europe. MEP Christian Engstrom pointed out to De Gucht that a big part of the reason why ACTA failed was the lack of transparency, and asked him to be more transparent with TAFTA (the Trans Atlantic Free Trade Agreement, but which many are calling TTIP -- for Transatlantic Trade and Investment Partnership). De Gucht's response was to insist that he cannot negotiate transparently, and then to outright mock Parliament for suggesting that it has a role in the negotiations.

... on the subject of openness, I have no problem saying what we are doing and what we want to achieve and, when not speaking in public, how I want to achieve this. But you are all politicians. So you should know – and I think you do know – that you cannot negotiate openly. You do not do that in your parties either; you do not do that in your constituencies. You need to focus – and yes, of course we have to report on what we are doing, explaining why we are doing things and why we are making some concessions; we will have to make concessions in the course of these negotiations. But you need a certain degree of confidentiality in negotiations. You also need it because your counterpart is asking for it; if not, you cannot negotiate.

It is interesting that it seems that there is a copy of one of the drafts of the negotiating mandate. So what? It is a draft. The Presidency has, of course, to make sure that they come to an agreement within the Council, so they put forward possible ways to get out of any difficulties that we have to deal with. Immediately, very vocal Members of this Parliament say that this is a scandal and that we are traitors and cannot be trusted. Of course you can trust me, because in the end you can say ‘No’. You have done so in the past. You said ‘No’ to ACTA: I am still not convinced that it was the right choice, but you decided to do so and that was how it was. You have the final word.

But a parliament is not created to negotiate. It is not its job. I think I have been in a parliament for a longer time than most of you –25 years. Maybe there are some who have been in a parliament as long – Mr Brok has already left, but he has certainly been in a parliament for more than 25 years – but not very many. I have never sought to negotiate an agreement from within a parliament because it simply does not work.

What you have to do – and you do it in an eloquent way – is indicate the important points that you want to mention, that you want me to look at and which you will question me about. You will scrutinise me and in the end will vote against me if I do not do that. But a parliament cannot negotiate, because a parliament only exists as a body when it votes. Outside of voting you take up individual positions. You cannot negotiate with 20, 30 or 50 different positions. That is not possible. You need to negotiate on the basis of a mandate, and then, of course, you have to demonstrate that you have been following your mandate.

Of course, MEPs weren't asking to let Parliament negotiate the deal, just for some transparency in what was being negotiated in the public's name. De Gucht's answer is misleading. Plenty of international agreements are negotiated with significantly greater transparency than what happened in ACTA, what's happening now with TPP and what's likely with TAFTA/TTIP. Governments can and should reveal the basic things they are negotiating for, to allow for some level of public comment. But that's not what happens. Things are negotiated in secret, in backrooms, with the help of industry lobbyists, and at the end we're given a "take it or leave it" document, which then (in most cases) is rammed through with little debate. It's the opposite of democracy.

Of course, ACTA showed that the public can rise up and take a stand against this, and Engstrom points out that if they did it for ACTA, they can do it again:

The positive thing about the whole ACTA affair was that there are now hundreds of thousands of European citizens who have, at least once, been demonstrating on the streets of various European cities against the trade agreement. There are lots of citizens now who take an interest in these agreements.

This is a very positive thing, but by insisting on the same kind of secrecy – only handing out secret documents to the members of the INTA Committee – the Commission is setting itself up for the same kind of failure. I would urge you to re-think this and become transparent.

It appears that De Gucht has decided not to re-think this, and to take the position that the ACTA response was an aberration. I'm sure that will play well with all the people who fought against ACTA.

Filed Under: acta, christian engstrom, eu, eu commission, eu parliament, karel de gucht, protests, secrecy, tafta, transparency, ttip

EU Commissioner Reveals He Will Simply Ignore Any Rejection Of ACTA By European Parliament Next Week

from the democracy,-what's-that? dept

The day before the EU's International Trade committee (INTA) recommended that the European Parliament should reject ACTA, the EU commissioner with responsibility for the treaty, Karel De Gucht, had given a speech to its members, trying to win them over. Although it was short, it turns out to be highly revealing about the European Commission's future ACTA strategy. Here's what he said:

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.

That is, whatever happens next week, the European Commission will wait for the European Court of Justice (ECJ) to rule on whether ACTA is compatible with EU law. If it is found to be incompatible, De Gucht admits that rather than accept this ruling, the European Commission will try to find some trick to circumvent it:

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

This implicitly confirms that the referral was simply a way to buy time, rather than an honest question about ACTA's legality.

Even assuming the ECJ rules eventually that ACTA is compatible, there could still be a problem if, in the meantime, the European Parliament has voted not to ratify it. Here's what De Gucht says he would do in that case:

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'.

Remember that ACTA is now signed, and cannot be altered; so De Gucht is instead trying to fob off European politicians with this vague idea of "clarifications" -- as if more vagueness could somehow rectify the underlying problems of an already dangerously-vague treaty. That's clearly just a sop; here's the real plan:

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.

This is an extraordinary admission. De Gucht says that even if the European Parliament unequivocally refuses to ratify ACTA next week, he will simply ignore that result, and re-submit it at a later date.

In other words, De Gucht won't accept the idea that the European electorate, through their representatives in the European Parliament, might possibly want to reject something they were not allowed to know about until late in the negotiating process, and to which they were unable to provide any meaningful input. In his view, ACTA must be passed, and ACTA will be passed -- whatever anyone else thinks about it.

Let's hope that the members of the European Parliament bear in mind this undisguised contempt for the democratic process in Europe -- and for them -- when it comes to voting on ACTA next week, and any time thereafter it might be re-presented to them under De Gucht's shameful plans.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, ecj, european commission, european union, karel de gucht

Double Standards: EU Commissioner De Gucht Is 'Innocent Until Proven Guilty'; EU Citizens Are 'Guilty Until Proven Innocent'

from the one-law-for-the-rich,-one-law-for-the-poor dept

The Belgian EU Commissioner Karel De Gucht is the driving force behind ACTA, and is apparently really keen to combat crimes like counterfeiting and piracy. It also seems he has a slight problem with the tax authorities:

Belgium’s Tax Inspection Service has accused European Commissioner Karel De Gucht of tax fraud. The service says that Mr De Gucht and his wife failed to declare the profit that they made on the sale of shares of the Vista group on which tax was due.

"Politician accused of tax fraud" is hardly news; but what is more interesting is the European Commission's reaction. Here's what it said according to the Dutch language version of the story on the site quoted above:

The Commission adds to this that De Gucht "not guilty until proven to the contrary."

Of course, you might say; after all, surely everyone is innocent until proven guilty? In fact, no:

A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement

Note the word "allegedly" -- not much presumption of innocence there when your details must be disclosed "expeditiously." That comes from Article 27 of ACTA, currently being pushed by the European Commission with all its might in a desperate attempt to get it ratified by the European Parliament next month.

So on the one hand, we have someone who allegedly failed to declare profits of 1.2 million euros (about $1.5 million), and who must be assumed innocent; while on the other, we have someone who allegedly infringes on someone's copyright -- perhaps by sharing a single mp3 file -- and who, by contrast, is assumed guilty. Double standards much, European Commission?

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: acta, belgium, european commission, karel de gucht, tax fraud

European Commission Blames Social Networks For ACTA Failure; Worried About Its Imminent Directive On Copyright Enforcement

from the still-not-listening dept

Now that the EU's ratification of ACTA has departed from the original script of everyone just waving it through, the European Commission is clearly trying to come up with Plan B. Some insights into its thinking can be gained from the minutes (pdf) of a recent Commission meeting, pointed out to us by André Rebentisch.

Here's what the President of the European Commission, José Manuel Barroso, said about ACTA:

The President introduced the topic, commenting on the intensity and scale of the public debate and the organised campaign against the Anti-Counterfeiting Trade Agreement (ACTA). There were those in particular who felt that the agreement would lead specifically to an unwarranted restriction on freedom of expression and democracy on the Internet, and would distort the reasonable balance between intellectual property rights and other fundamental rights.

He therefore felt that the Court of Justice of the European Union should be asked to confirm the Commission’s position in this matter, namely that ACTA was consistent and compatible with the Treaties and with the Charter of Fundamental Rights of the European Union. He suggested that that day’s discussion should consider that point, but also the question of when would be an appropriate time to refer the matter to the Court, and the possibility of consulting Parliament and the Council with a view to adopting a common approach in this matter.

The suggestion that the anger over ACTA was somehow part of an "organised campaign" looks like a continuing failure to grasp that the protests were about all Internet users across Europe coming together to defend their online community. As for the "common approach" with the European Parliament, it's easy to see why the European Commission would want this: it would allow the referral of ACTA to the European Court of Justice to be framed in such a way as to increase the likelihood of a positive response from the court. It will be interesting to see whether the European Parliament acquiesces in this, or continues to take a hard line on the need for more searching questions to be asked.

Barroso's comments were followed by some observations from Karel De Gucht, the European Commissioner with direct responsibility for ACTA, who made some revealing remarks:

He noted that opposition had increased in the run-up to January’s planned vote in the US Congress on two legislative initiatives -- the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) -- aimed at increasing the protection of intellectual property rights on the Internet; in the end the vote had not been held, following a hostile campaign by social networks and the loss of White House support.

It's interesting to see De Gucht linking the growing hostility to ACTA with the storm generated by SOPA/PIPA, and giving the credit for stopping those US bills to a "hostile campaign" waged by social networks. You can tell this really worries him, because he says something similar about social networks and ACTA immediately afterwards:

Despite the signature of ACTA in January by the Commission, the Union Presidency and twenty-one other Member States, the intense media campaign which was unleashed in Europe, instigated largely by the social networks, had since led a number of Union Heads of State or Government to decide to delay signature or ratification of the agreement by their national parliaments. He added that the campaign had also had a considerable influence on Members of the European Parliament and, following recent contacts with various political groups, he now felt it would be difficult to muster a majority in favour of ACTA within the EP.

What's extraordinary is that no less than three other commissioners also spoke at the meeting about the importance of social networks, and the need to grapple with them.

Viviane Reding:

She concluded by highlighting the rising influence of social networks on the Internet and the need for the Commission to take account of this in its communication policy and in dealing with various dossiers. Instructions had already been given to the communication units in the Directorates-General.

Neelie Kroes:

She concluded by stressing the need for appropriate communication on the agreement, without waiting for the Court’s opinion, targeted particularly at the various stakeholders involved and social networks.

Michel Barnier:

was also of the opinion that the key role of social networks in public debate in Europe forced the Commission to think carefully about adapting some of its means of communication and that Members should discuss the matter as soon possible.

What emerges very clearly from this is that the most senior politicians in the European Union are completely nonplussed by the power of social networks to mobilize not just Net activists but ordinary Internet users, and are struggling to deal with it. I think we can expect to see attempts to neutralize that new force by "reaching out" to social networks in a variety of ways in the coming months. One area where that will clearly happen is for the forthcoming update on the EU's "IPR Enforcement Directive", generally known as IPRED. The Commission meeting referred to it explicitly:

As regards the planned revision of the 2004 Directive on enforcement of intellectual property rights, the Commission needed to adopt a prudent and balanced approach to this politically delicate exercise, and take account of existing texts on the protection of data and privacy in the areas of telecoms and fundamental rights.

The EC knows that it must be very careful here, because the measures already mooted for the next version of IPRED are very close to some of SOPA's bad ideas -- for example, turning ISPs into copyright cops. The European Commission has observed what happened in the US, and is clearly very concerned that the IPRED update will meet the same opposition from those mysterious, uncontrollable social networks as SOPA/PIPA did and ACTA is now doing.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: act, copyright, enforcement, eu, eu commission, karel de gucht, manuel barroso, social networks