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Why was ACTA approved in the EU Fisheries Council?

In December 2011, the EU Council decision to sign the Anti-Counterfeiting Trade Agreement (ACTA) was approved during a Fisheries Council meeting as an “A-Item”, i.e. without discussion at ministerial level. While both, the fact that a Fisheries Council approves ACTA and that this happens without ministerial debate, may look strange at first sight, these are a quite normal procedures for hundreds of issues.

Nevertheless, blogging Green (Swedish Pirate Party) MEP Christian Engström asked two parliamentary questions to the Council in December which received an answer at the end of March, the first one with regard to the constellation (“Fisheries Council”) and the second with regard to the lack of debate at ministerial level. The reply of the Council:

“The Council is a single institution which meets in different configurations (Article 2(1) of the Council Rules of Procedures). There is only one Council therefore.

Article 3(6) of the Rules of Procedure of the Council states that:

‘The items appearing in each part of the provisional agenda shall be divided into “A” items and “B” items. Items for which approval by the Council is possible without discussion shall be entered as “A” items, but this does not exclude the possibility of any member of the Council or of the Commission expressing an opinion at the time of the approval of these items and having statements included in the minutes.’

Accordingly, ‘A’ items can be adopted without discussion at any Council meeting, irrespective of the configuration. This was the case for the proposal for a decision to sign ACTA, which was forwarded as an ‘A’ item following prior discussion in the Trade Policy Committee.

Although the intention of the Presidency was to submit the proposal for a decision to sign ACTA for adoption in the Foreign Affairs Council (Trade) held in Geneva on 14 December 2011 in the margins of the 8th WTO Ministerial Conference, the adoption had to be postponed to the Agriculture and Fisheries Council on 15-16 December 2011 to allow for the necessary political, legal and procedural steps to be completed.”

Now, I wanted to write this blog post because the answer to the first question – why at the Fisheries Council – was so obvious that I wondered why Christian Engström would even ask it. I thought this question was a waste of time as the answer was so predictable as this is such a normal procedure that no interesting insights could have been gained.

The second question was also kind of obvious as many, many issues are agreed as A-Items because member states can agree on certain issues already at working level or at the level of ambassadors. Christian Engström’s question implies that by passing it as an A-Item, a political debate is evaded, and in principle I agree – if too many issues are passed at diplomatic level, decisions that concern all of us pass way below the radar of public attention.

Still, was this really a relevant question to ask the Council? I did not think so. However, what is interesting is that the Council did not actually answer this question. Maybe it is kind of obvious for the Council that where there is agreement at working or diplomats’ level a ministerial debate is not necessary, especially if the decision is to be taken in a Council constellation in a non-related policy-field.

Yet, as I have blogged recently, Council debates on politically sensitive topics can receive quite some attention. Having debates at ministerial level and live-streaming them (currently only for legislative agenda items) could actually raise the level of political debate, and force national politicians to voice their arguments in front of an all-European public and not just to the national press (if at all).

In this sense, although I find the Christian Engström’s questions quite unnecessary as they are almost self-explanatory, they touch upon an important issue – and it would have been nice if the Council actually would have had the guts to address the issue with a little more attention to the actual meaning of the parliamentary questions and their implications for EU democracy.

So, what about live-streaming COREPER or Working Party meetings when they deal with legislative files if A-Items are such a frequent and normal procedure that debates on issues of legislative importance rarely surface in the Council? And what about having debates at ministerial level for issues of higher political importance even when an agreement was already made at lower levels?

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