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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?

11 Responses to Why was ACTA approved in the EU Fisheries Council?

  1. avatar Martinned says:

    This is not how the democratic check of the Council is supposed to work. The Council is democratic because its members are answerable to national parliaments (or to national voters directly). It is at that level that transparency is most important. If you want to know why the Council treated ACTA the way it did, ask your national government.

  2. avatar Ronny Patz says:

    As a European citizen, arguments put forward by Poland are as interesting as the arguments put forward by Germany. If I want to influence my governments position in the Council, I will have to go via my national parliament, I agree, but that should not the prevent my ability to follow legislative or politically important debates in their entirety.

  3. avatar Martinned says:

    I’m not sure that it makes sense to separate those two. What interest do you have in the debate other than to make sure your government is making the right arguments? What is the point of observing something that you cannot influence?

    Your argument confuses the debate in the Council, which is the culmination of 27 national debates, with the debate in the European Parliament, which is supposed to be a true European debate.

    (Not to mention that to characterise what happens in the Council or in COREPER as a “debate” is less than entirely realistic. They’re diplomats following instructions from home, not politicians with vague mandates. People change their minds not because they’re convinced, but because they stepped out for a moment to make some phone calls in the hallway.)

  4. avatar Ronny Patz says:

    First, the Council is a single organisation which takes common positions/decisions represented through a presidency, so the argument that I as a citizen can only be interested in what my national government does within this body is not correct.

    Second, in a common political union, knowing what other member states’ governments think and say is relevant. If I am engaged in a political party at national or European level (which I am not), I may want to discuss with others coming from other EU member states about our common positions, our strategies to influence our national or European politicians through programmatic debates or contacts with our representatives. If I can follow debates in their integrity, I can make my fellow party members in other EU countries aware that their minister represents positions which may go against national or European party positions, thereby stirring national debates that are needed to bring change at European level.

    Third, I am not saying that there is actual debate in COREPER; the level of debate in Council meetings is also only limited and most statements are read without making reference to anything said previously. However, even the positions read represent the outcome of national debates or discussions in European fora, and knowing them allows us to better understand why a decision was made the way it was made in the Council.

  5. avatar Fr. says:

    The Council is just using the same tactics that national governments use domestically. The French government uses the emergency procedure in the same way as the Council uses A-items—or rather, reversely, the Council is just piggybacking on how national politics usually play out.

    It’s a mistake for EU institutions to proceed that way, at least in the case of ACTA. They will get the same flak than national governments got before 1998, when they were trying to sign the Multilateral Agreement on Investment. History repeats, different institutions but same story.

  6. avatar Ralf Grahn says:

    Formally the Council is one, but still Engström’s questions and Ronny Patz’s blog post raise meaningful issues about openness and democracy at EU level.

    Ultimately the two Coreper formations may be accountable to 27 national parliaments, but each representative is primarily a government agent acting on instructions from his own capital. The main part of these instructions and interactions remain hidden.

    Following 27 so called national debates is far from practicable, even for a single issue, and 27 shards do not make a whole vase.

    In practical terms, Engström has a point, even if it is implied rather than formally correct. Both an A point (without discussion) and the use of the Fisheries Council make it less probable that people following trade and intellectual property issues (copyright) are going to find the decision, because few have the time to mine everything even from one EU institution.

    The governments of the member states knowingly tried to bulldoze the treaty or unwittingly showed an astonishing lack of political knous handling the ACTA issue as a narrow trade policy issue despite calls from civil society actors to bring the negotiations and the possible implications for EU and national law into the arena of open political debate.

    I am still waiting for a Commission (DG Trade) response to my tweet on what ACTA would cause with regard to national legislation about criminal sanctions for IPR infringements.

    To date, only the European Parliament has shown signs of taking on board objections from citizens and netizens, while DG Trade has called concerned citizens uninformed or knowingly misinforming and many national governments tried to evade public debate for as long as they could.

    The best thing about ACTA is how it has exposed fundamental flaws with regard to democracy, accountability and transparency.

  7. avatar Martinned says:

    Regardless of whether something is an A-item or a B-item, the Council always publishes how each MS voted, so that’s not the problem. And the way they vote is completely independent from which Council formation happens to do the actual “vote”, at least as far as A-items are concerned. B-items are still almost always voted in line with the decision taken back home. So watching a Council vote gets you nothing, and watching COREPER “vote” (they don’t actually vote, but rather move on to the next item when a sufficient level of consensus has been reached) would get you nothing either.

    Watching COREPER discuss is a different story, but then you end up with the question why you should stop at COREPER. Why not put the Working Groups on the internet as well? And if you’re going to do that, why not put national cabinet meetings on line? And national high-level ministry meetings. The Monday-morning staff meeting. There is something to be said for ever more transparency, but by that stage we’d very much be talking about executive branch/administrative transparency. The line of democratic accountability runs from parliament to the minister to the Council, and it is along that axis that the focus of transparency should be.

  8. avatar Ronny Patz says:

    @ Martinned

    If I wouldn’t know better I would think the Council has hired you to defend its lack of openness… 😉

    On substance: I think the votes are less important than drafting proposals put forward or official instructions read that indicate consensus or need for change. In the end, I don’t need a live stream for everything, but if we could get to a point where the decision-making in the Council, in particular on ordinary legislation, is as transparent as it is in the Parliament so that the public{s) can follow the making of binding legislation in the Council in the same way it (they) can follow decision-making in the Parliament, we get closer to a 21st century democratic system.

    In the end, this is not about absolute transparency (whatever this means) where everything needs to be live streamed, every discussion recorded, every scribbled piece of paper stored – but one or two step towards an EU where the essence of democratic law-making such as expressed in official positions taken (votes, amendments, drafting proposals) can be observed by the sovereign – EU citizens – is definitely necessary.

  9. avatar Martinned says:

    @Ronny: Six years after I did my stage, the Council is still “us” and the Parliament is still “them”. I think that’ll never go away until I’m back in Brussels working for one of the Institutions. When I was there, I was involved in the closed-door negotiations with the Parliament over legislation as well as the negotiations about what the negotiating mandate for the next trilogue should be. When it comes to resolving the most difficult parts of the most difficult legislative dossiers, transparency is not your friend.

    When EU citizens elect their lawmakers, they do so in secret, and there’s a reason for that. When Parliamentarians defy their voters, there’s a price, but that cost is diluted by time and by other issues. In the Council, hell can rain down much more quickly. It is bad enough that the government is now seen as having voted in favour of tricky proposal X, but it would be even worse if they could no longer deny that they were ever against it. If your country is run by a three-party coalition, two of which are in favour of X and one is against, then the most face-saving solution is to have the option of being vague about how you voted in the Council. The next best thing is to have the option of pretending that the one anti-X party graciously agreed to let the other two parties have this one all along. If you’re on record as having changed your mind on X, all three parties take it in the teeth.

  10. avatar James Burnside says:

    In cases like this, at that stage the member states’ governments have all already agreed the text on their own behalf, because it’s a mix of EU and national competences. Therefore, deciding that the EU also should sign would not be the subject of big discussions in the final stages, given the usual rules of “loyal cooperation” amongst the member states. So a public debate, even in the working party, would tell us very little. What you would need to see would be the meetings between the Commission negotiators and member state governments during the negotiations, not after.

    There may well have been some (perhaps some or all of the EU countries that didn’t sign in December) that hoped it would collapse so they wouldn’t have to ratify it, but having given their word to each other, member states would always be reluctant to go back on it. Clearly ACTA is now a much higher profile case than it was in December, so the position may have evolved for some member states.

  11. avatar Martinned says:

    @Ronny: Look what’s happening here:

    And when meetings were held in Brussels with representatives of professional organisations to reform the ‘Eurotest’, not everyone was invited at the table. Camus’s SIMS trade union, which represents independent ski schools in France, Switzerland and Italy, was surprisingly left outside – despite his repeated calls to be invited.

    When he asked to receive the minutes of the meeting, Camus was told to enquire with the Syndicat National des Moniteurs de Ski Français (SNMSF), which was appointed by France to sit at the Brussels talks. The SNMSF represents the Ecole du Ski Français (ESF), which dominates snow sport teaching in France and is a direct competitor to Camus’ Ecole de Ski Internationale (ESI).

    To Camus, this was equivalent to asking Carrefour to enquire with rival Auchan on the future regulation of the retail distribution market in France.

    “Let me remind you that ski teaching is completely privatised in France,” Camus told Barnier in a letter. “The SNMSF is our direct competitor,” he remarked, asking to be kept informed about the meeting’s decisions.

    Barnier’s office told EurActiv it was up to the member states to appoint representatives to the EU talks. In the case of France, four delegates were sent to Brussels – all from the SNMSF, which is the dominant voice in the industry.

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