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ECJ Referral: No Legal Debate Will Make ACTA Legitimate

Paris, February 22nd – The European Commission just announced its intent to ask the European Court of Justice (ECJ) for an opinion on the conformity of ACTA with fundamental freedoms. Beyond the obvious intent to defuse the heated debate currently taking place, this move aims to make the ACTA discussion a mere legal issue, when the main concerns are political by nature.

While the EU Commission has consistently refused to undergo an impact assessment of ACTA on fundamental freedoms, it is now scared of the growing citizen opposition to ACTA and has decided to buy time.

Even if the the ECJ referral text has not been published yet, its announced framing is narrow and legalistic in nature. Important questions will not be asked, and therefore be left unanswered:

  • Can a wide-ranging interpretation of ACTA's criminal sanctions (for “infringement on a commercial scale”, including “aiding and abetting”) be used as a bullying weapon by the copyright industry to force Internet actors into deploying contract-based repressive measures?1
  • What will be the impact on EU policy-making and public debate of casting in stone current repressive policies for which an impact study is still expected, and which are heavily criticized (such as the EUCD and IPRED)?
  • Can such a body of policies, impacting EU policy-making, the free flow of information and the freedom to conduct business on the Internet be negotiated instead of democratically debated, and yet be legitimate?
  • Is ACTA necessary as we are facing an open conflict between repressive copyright policies and fundamental freedoms, and that other paths could be taken, such as a positive reform taking into account new cultural practices?

“The European Commission asks the wrong questions, because it is afraid of getting the right answers. It tries to prevent the Court from assessing ACTA's impact on fundamental rights having regard to how it will interact with existing EU law and the announced revisions of the IPRED and “Online Services” directives. With this wider perspective, ACTA's harmful effects on fundamental rights become so obvious that a referral is not even needed.” declared Philippe Aigrain, co-founder of La Quadrature du Net.

“ACTA is dangerous because it aims at circumventing democracy, and because its vague wording can be interpreted in so many repressive ways by the signatories and judges. The Commission seems afraid that the heated ACTA debate and the growing recognition that the present system is broken will lead to a highly needed copyright reform for the benefit of art, culture and innovation in the digital era. No legal debate can fix ACTA or give it a legitimacy that by design it cannot have.” concluded Jérémie Zimmermann, spokesperson for the citizen organization.