The controversial anti-piracy agreement ACTA is contrary to European law. This statement was recently made by a group of scientists from Dutch, German, British and Spanish universities. In a joint statement they urged the EU Member States, the European Parliament and the Commission to reject the current draft text of the ACTA agreement.

Contrary to what the Commission has consistently held, there are a number of provisions in the agreement that are still not compatible with existing EU legislation. The experts say that ACTA will allow the legal protection of a person accused of infringing intellectual property (IP) rights to erode in favor of the holders of these rights.

The present draft is said to allow preliminary injunction against an alleged infringer of IP, without a proper hearing of the accused. Article 9 (4) of EU Directive 2004/48 only allows such a measure under the strict requirement that there must be irreparable harm to the holder of the IP, in the absence of such a measure. In addition, the ACTA negotiators seem to have traded the protection of fundamental principles such as freedom of speech, privacy and protection of personal data for vague and general provisions, according to the critical lawyers.

The ACTA provisions that caused the most outrage are about trade of medical drugs and the criminal enforcement of IP rights. This last topic is very controversial , a proposed directive on criminal enforcement of IPR did not make it through the EU legislative process because no agreement could be reached. Critics are appalled by the idea that the Commission is trying to regulate this issue through the conclusion of an international treaty, circumventing the EU decision making process.

The Commission itself is accused of being opaque and unresponsive to the criticism surrounding the ACTA negotiations. For example, a critical question from the Liberal MEP Schaake about the legal nature of ACTA remained unanswered to her surprise.

The legal scholars will collect signatures and support for their position until early February, insisting that as long as such major inconsistencies with EU legislation and fundamental rights of EU citizens are at stake, the European institutions cannot accept the agreement. The petition will be presented to the Europarliament prior to the official voting procedure on the final tekst. After the EP has decided, several debates will follow in national parliaments. The controversy around ACTA will continue for quite a while.

Sources: heise.de and the Institute for legal informatics of the Leibniz University of Hannover, Germany.