Afbeelding gebaseerd op flag van _Josh_Lowe_ (licentie: CC BY 2.0)

Afbeelding gebaseerd op flag van _Josh_Lowe_ (licentie: CC BY 2.0)

Simone Halink

1 augustus 2012 17:52
Door Simone Halink

ACTA
English
Open Internet

Translation open letter: Dutch government must reject CETA

On 4 July 2012 the European Parliament decided to reject ACTA. Unfortunately, less than six days later, ACTA was yet again the centre of debate. It turns out that a draft text of the Canada – EU Trade Agreement (CETA) contains a number of provisions that are virtually identical to provisions from ACTA. In the fight against ACTA, the Netherlands has set an important example by rejecting the treaty on 25 June 2012, long before the vote of the European Parliament. We assume that the government will take a similar stance towards the ACTA-provisions in CETA, as their content is identical. In an open letter we have asked the responsible minister to confirm this position:

 

Dear Mr Verhagen,

On 4 July 2012 the European Parliament rejected the Anti-Counterfeiting Trade Agreement (ACTA). We were therefore shocked to find out that only six days later ACTA was yet again centre of debate. A leaked draft of the Canada – EU Trade Agreement (CETA) showed that this treaty includes a number of provisions that are virtually identical to provisions from ACTA.

A comparison shows that – amongst others – article 23(1), 27(3) and (4) and 9(1) of ACTA are included in the draft (see attachment). These controversial provisions concern respectively criminal enforcement, private enforcement by ISPs, and damages. These provisions are considered particularly problematic and were reason for the European Parliament to reject ACTA.

We are very pleased that the growing resistance against ACTA was reason for the Dutch government to dismiss this treaty: by letter of 25 June 2012 to the Parliament you wrote on behalf of the Dutch government, that it will definitely not sign ACTA. Herewith, the Netherlands took the lead in the fight against ACTA.

With regard to CETA, the Netherlands has a similar role to play. We assume that when CETA is discussed on the European level by the Council of Ministers, the government will maintain its position towards ACTA. This means that it will reject the ACTA-provisions that are part of CETA, as the substance of these provisions is identical.

For that matter, we were somewhat surprised by your letter of 10 July 2012 in response to the request to vote against any new treaties that are comparable to ACTA. You there state “that each draft treaty will be assessed on its own merits”. As pointed out above, part of the provisions of ACTA and CETA are identical. A substantive assessment of this part of CETA will therefore not lead to a different outcome than in the case of ACTA. We thus assume that your statement does not relate to the ACTA-provisions in CETA.

For this it is irrelevant that the European Commission announced on 11 July 2012 that the articles 27(3) and (4) of ACTA have been removed from CETA. For the resemblance between ACTA and CETA reaches far beyond this one provision.

For the reasons above, we urgently request you to confirm that the Dutch government will vote against CETA in the Council of Ministers, or at least against any provision that is substantively similar to any provision of ACTA. We also request the government to confirm that it will strive to have such provisions removed from CETA. We would like to receive these confirmations in ample time before the next meeting of the Council of Ministers, and in any event within fourteen days after the date of this letter.

Yours sincerely,

Simone Halink

Update: On 17 September the Dutch government confirmed that it will not agree to the ACTA-provisions in CETA or to any other treaty in which they appear: such provisions must be changed or deleted. The government further stated that there are currently no other treaties similar to ACTA being negotiated.

A note of caution: due to recent elections, the government is about to change. The new government could take a different position. This would require a shift of opinion by the two major parties: the liberal party (VVD) is currently against ACTA and similar treaties; and the labour party (PvdA) is currently against ACTA (but has not yet taken a position against similar treaties).

 

2 reacties

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Please be aware that the ACTA type of text in CETA you refer to is not the only way how CETA might grant rights of direct private enforcement of intellectual property rights!

For this one will not only have to look in the IPR chapter of CETA but in the Investment chapter.

The EU used this approach to ensure private enforcement rights on IPR in the negotiations of a free trade agreement with India.
Here a link to a blog from Indian Health groups explaining their concern about the inclusion of IPR in the investment chapter of the agreement between India and the EU.[1]

The negotiation mandate for an investment chapter in EU free trade agreements given to the EU negotiators is the same for CETA and for the negations with India. It can be found here [1a] and also requires the inclusion of intellectual property rights.

The Netherlands has always insisted strongly (and still does) that the investment chapter in EU agreements have to provide the “highest level of protection” to foreign investors.

The Netherlands also has signed a significant number of so called Bilateral Investment Treaties (BITs) in Dutch knows as “Investeringsbeschermingsovereenkomsten (IBO’s)”

Articel 1 a IV of the Dutch model BIT clearly states that the definition used of Investment in these treaties means every kind of asset and more particularly [...] rights in the field of intellectual property” [2]

The full text of the individual 97 Dutch treaties can be found here [3].
In the concrete case mention by the Indian campaigners concerned about the free trade agreement between EU and India is a case Phillip Morris filed against the Uruguay Government[4]
The IPR infringement in question was an “expropriation” of Philip Morris’s trademarks caused by new labelling requirement for cigarettes in Uruguay.

However the rights granted under such investment protection agreements are more general and cover any right in the field of intellectual property rights.

About a year ago more than 100 international experts and social activists gathered in Brussels, Belgium, for a ‘Week of Action’ to call attention to the negative effects of International Investment Treaties (IIA) on human rights and the environment.

More information on this can be found here:
http://www.bothends.org/en/News/newsitem/163/-No-more-corporate-privileges—Week-of-Action-on-Investment-Treaties-

==
[1a] http://www.s2bnetwork.org/themes/eu-investment-policy/eu-documents/text-of-the-mandates.html
[1] http://donttradeourlivesaway.wordpress.com/2011/04/15/india-eu-fta-inclusion-of-ipr-in-investment-chapter-%E2%80%93-another-threat-to-public-health/
[2] PDF of the Ducth model BIT can be found here
http://www.rijksoverheid.nl/onderwerpen/internationaal-ondernemen/documenten-en-publicaties/convenanten/2004/08/27/ibo-modelovereenkomst.html
[3] http://www.rijksoverheid.nl/onderwerpen/internationaal-ondernemen/documenten-en-publicaties/besluiten/2007/04/16/teksten-ibo-overeenkomsten.html
[4] http://www.smoke-free.ca/eng_home/2010/PMIvsUruguay/PMI-Uruguay%20complaint0001.pdf

Please be aware that the ACTA type of text in CETA you refer to is not the only way how CETA might grant rights of direct private enforcement of intellectual property rights!

For this one will not only have to look in the IPR chapter of CETA but in the Investment chapter.

The EU used this approach to ensure private enforcement rights on IPR in the negotiations of a free trade agreement with India.
Here a link to a blog from Indian Health groups explaining their concern about the inclusion of IPR in the investment chapter of the agreement between India and the EU.[1]

The negotiation mandate for an investment chapter in EU free trade agreements given to the EU negotiators is the same for CETA and for the negations with India. It can be found here [1a] and also requires the inclusion of intellectual property rights.

The Netherlands has always insisted strongly (and still does) that the investment chapter in EU agreements have to provide the “highest level of protection” to foreign investors.

The Netherlands also has signed a significant number of so called Bilateral Investment Treaties (BITs) in Dutch knows as “Investeringsbeschermingsovereenkomsten (IBO’s)”

Articel 1 a IV of the Dutch model BIT clearly states that the definition used of Investment in these treaties

means every kind of asset and more particularly [...]rights in the field of intellectual property”

[2]
The full text of the individual 97 Dutch treaties can be found here [3].
In the concrete case mention by the Indian campaigners concerned about the free trade agreement between EU and India is a case Phillip Morris filed against the Uruguay Government[4]
The IPR infringement in question was an “expropriation” of Philip Morris’s trademarks caused by new labelling requirement for cigarettes in Uruguay.

However the rights granted under such investment protection agreements are more general and cover any right in the field of intellectual property rights.

About a year ago more than 100 international experts and social activists gathered in Brussels, Belgium, for a ‘Week of Action’ to call attention to the negative effects of International Investment Treaties (IIA) on human rights and the environment.

More information on this can be found here:
http://www.bothends.org/en/News/newsitem/163/-No-more-corporate-privileges—Week-of-Action-on-Investment-Treaties-

==
[1a] http://www.s2bnetwork.org/themes/eu-investment-policy/eu-documents/text-of-the-mandates.html
[1] http://donttradeourlivesaway.wordpress.com/2011/04/15/india-eu-fta-inclusion-of-ipr-in-investment-chapter-%E2%80%93-another-threat-to-public-health/
[2] PDF of the Ducth model BIT can be found here
http://www.rijksoverheid.nl/onderwerpen/internationaal-ondernemen/documenten-en-publicaties/convenanten/2004/08/27/ibo-modelovereenkomst.html
[3] http://www.rijksoverheid.nl/onderwerpen/internationaal-ondernemen/documenten-en-publicaties/besluiten/2007/04/16/teksten-ibo-overeenkomsten.html
[4] http://www.smoke-free.ca/eng_home/2010/PMIvsUruguay/PMI-Uruguay%20complaint0001.pdf

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