Last week the European Parliament (EP) rejected ACTA in its plenary session in Strasbourg. What might seemed very unlikely only a few months ago, in the final vote a total of 478 MEPs were against the agreement, with 39 voting in favor and 165 representatives abstaining from a vote. There is a broad agreement that this result constitutes an important victory for all campaigners who raised a variety of objections to ACTA throughout the last years.
Despite such a clear voice of the EP in this matter, it seems for the European Commission the battle is not over yet. In its statements voiced during the plenary session the Commission repeated that it will continue to wait for the opinion of the Court of Justice of the EU (CJEU) on the compatibility of ACTA with European laws. Depending on the outcome of the opinion, the Commission indicated that it might consider resubmitting ACTA to a vote in the EP. Given the EPs’ clear rejection of the agreement, such a move would be quite remarkable given that the chances are close to zero and, in addition, given that a democratically elected body has already exercised its power over it.
Against this background, it is safe to say that in its current form, ACTA will not enter into force in the EU. From the international perspective, it remains to be seen in how far the other signatories will be willing to move ahead despite the developments in the EU and an increasingly unfavorable political environment for this agreement. Internally, the EP’s vote could raise a couple of issues.
First, the EP has gained more political weight in matters involving the enforcement of IPRs. The vote on ACTA is also an indication of how sensitive issues around IPRs might get in the future. During the EP’s current term, the Commission is expected to revise the IPR Enforcement Directive which could once again lead to a highly delicate debate between the EU institutions and civil society. Furthermore, this vote also circumscribes the Commission’s room for maneuver in the negotiations of future trade agreements. Not only will the Commission be more careful but it might also have to involve the EP more closely to gain more legitimacy for its actions from the very beginning.
Second, the EP’s vote constitutes an opportunity to refocus the debate on IPRand IPR enforcement. From the very beginning of trade negotiations ACTA was only concerned about IPR enforcement – it essentially claimed to standardize IPR enforcement laws and practices on the international level. The problem with this approach is that it can lead to imbalances in certain jurisdictions as regards their IPR regime as a whole. Having strong enforcement rules and a flexible IPR regime allowing for sufficient flexibility through various limitations and exceptions to exclusive rights constitutes a mix that leaves space for innovation and experimentation. Such a regime is of particular importance for the digital economy which relies on these flexibilities to a large extent. Accordingly, the problem lies with jurisdictions that have a more static IPR regime that is far less friendly to innovation and technological advancement. In this context, the EP’s vote provides the chance to discuss both sides of the equation.