The Rise and Fall of the Anti-Counterfeiting Trade Agreement (ACTA): Lessons for the European Union

Abstract

This article revisits the arguments, debates and controversies that led up to the European Parliament’s rejection of the Anti-Counterfeiting Trade Agreement (ACTA), reflects on what might happen once the Court of Justice of the European Union (CJEU) has clarified the implications of the agreement for fundamental rights and freedoms in the European Union (EU), and evaluates the implications for the EU of the scrutiny of international agreements with provisions on intellectual property rights in the future. The article undertakes these tasks in four stages. First, it examines how Parliament was able for the first time to exercise its power of veto over a draft international agreement negotiated by the Commission on behalf of the EU under the consent procedure of the Treaty on the Functioning of the European Union (TFEU). Second, it reconsiders the rationale for ACTA in terms of why the agreement was perceived as being necessary in the first place, given that other international fora existed for intellectual property enforcement issues to be addressed. Third, the article reflects on the reasons why ACTA became so controversial that it became the focus of unprecedented public concern in the EU and its Member States, which particular attention paid to lack of transparency in the negotiating process, concerns that fundamental rights and freedoms in the EU would be undermined by provisions of ACTA, and concerns that the agreement would conflict with the acquis communautaire of the EU and with the WTO TRIPS Agreement. Fourth, the article concludes by considering what lessons can be learned for the future.