Bad Faith From European Commission Indicates CETA May Be "ACTA, Episode II" After All

Last Wednesday, we defeated ACTA, when the good forces on the inside and outside of European Parliament cooperated to defeat the corporate-rule European Commission. It didn’t take many days before
another trade agreement surfaced, uncovered by Michael Geist, that looks like a back door for the ACTA provisions if ACTA as such was rejected by the European Parliament. It’s called CETA and is a trade agreement between Canada and Europe.

At the time, I said that this alone did not necessarily mean that the European Commission would try railroading an ACTA facsimile through Parliament – the leaked CETA drafts came from February of this year, when it seemed like ACTA was a done deal. Therefore, seeing identical texts was… well, logical, as they would have written in February of 2012. The draft texts could be seen as a time capsule of the expectations of their time.

My assessment would be that the European Commission is still in a state of shock over the forceful and complete rejection of its intended direction. Seeing that this was less than a week ago, we are realistically still months away from a new direction materializing. As typical office workers, the Commission bureaucrats can choose one of two directions here – they can either learn from this very costly mistake, backtrack and re-plan, which is very expensive both in terms of organization and money, or they can just steamroll ahead as if nothing happened. The latter is a politically very risky maneouver, given the decisive rejection of ACTA, even if the human cost short-term is lower – and the Commission is quite smart and suave, so I doubted they would bet any further prestige in getting intellectual property rights override civil liberties and fundamental rights no matter what the cost.

However, MEP Christian Engström attended a meeting with the Commission’s responsible person for CETA yesterday, a chap named John Clancy who was previously responsible for ACTA, a person that Michael Geist also mentions by name. MEP Engström blogged about that meeting later, concluding that CETA indeed looks like the “First Zombie ACTA”. Quoting MEP Engström:

Yesterday, I attended a post-mortem seminar on ACTA in the European Parliament. One of the panelists was the civil servant from the EU Commission who used to handle ACTA, and who is now in charge of the CETA negotiations.

I took the opportunity to ask him about CETA, and if it wasn’t true that CETA contains a chapter on intellectual property rights where certain provisions have been copied verbatim from ACTA.

The reaction of the Commission official was very interesting. He confirmed that CETA does indeed contain a chapter on intellectual property, but then immediately went on to try to belittle Professor Geist (without anybody else having mentioned Professor Geist’s name).

According to the Commission representative, Professor Geist should not be taken seriously, since he was commenting on a draft that was six months old, and the text had changed since then.

When I asked the obvious follow-up question, if the Commission had published a more current version of the text under negotiation, the answer was no.

MEP Engström, as well as his assistant Henrik “Hax” Alexandersson, recognize the attitude of belittling Parliament as identical to the attitude displayed from the Commission towards Parliament in the ACTA showdown, and draw the conclusion that bad faith is present all over CETA:

So it appears that it will be déjà vu all over again. The unelected EU Commission is negotiating an international agreement with legislative effect behind closed doors. They are keeping all documents secret, while arrogantly claiming that everybody who is questioning what they are doing is misinformed. Same procedure as last time.

Henrik “Hax” Alexandersson elaborates:

It would look as the Commission is really going to try steamrolling the CETA agreement no matter what. It suffers from the same substantial problems as ACTA. The opposing teams are the same as over ACTA. The secrecy is the same as over ACTA. And the entire political battle will have its first rerun. Kind of. […]

The Commission representative, John Clancy, made it perfectly clear that the Commission intends to proceed with CETA as though nothing had happened. That is, the Commission doesn’t seem to care that it was sent back to the drawing board for the exact same political substance in the fall of ACTA.

Still, while this is a strong indication, I would not say with certainty yet that the Commission is going to try this catastrophically dumb stunt. I try to apply the lowest-friction explanation to most things I see in order to understand what’s going on.

So rather than going all analytical on political aspects, I find that a lot of the things happening in politics are easier to explain if you try to picture the individual people behind the scenes, imagine their situation, and look at what their options and feelings would be. In this case, you have bureaucrats who have been negotiating a huge trade agreement between Europe and Canada, probably for well over a year, only to have your year-long work fatally torpedoed on July 4. This date is seven workdays before your six-week summer vacation starts, which is the only regular break from papers, more papers, and yet more papers you’re ever getting in your career. Are you going to immediately call crisis meetings and rewrite the whole thing, or are you going to shrug your shoulders and count down the minutes before you leave for vacations?

SCIENTIFIC ILLUSTRATION: The statistically average reaction of a bureaucrat who has just had a year’s worth of hard work torpedoed seven workdays before a six-week summer vacation.

It would still be logical that these people would say “no, you can’t see the agreement”, regardless of whether they were going to rewrite it after summer, not rewrite it at all, or most likely, haven’t cared to think about that decision point yet because summer vacations are just around the corner. But this belittling attitude is still a significant warning sign, and it should intensify the CETA blip on all our radars.

Now, however, the Commission bureaucrats are leaving their jobs to get wasted, high, tanned, and laid for the next six weeks. European Parliament is going to be just as empty. So even if we wanted to protest and mail and pester the officials, there’s nobody there for the next six weeks.

So rather than risking acute activism fatigue (hey, we just defeated ACTA!), I think we should follow the bureaucrats’ example and enjoy some R&R for the next couple of weeks. The showdown over this thing called CETA continues in late August or early September at the earliest.

Rick Falkvinge

Rick is the founder of the first Pirate Party and a low-altitude motorcycle pilot. He lives on Alexanderplatz in Berlin, Germany, roasts his own coffee, and as of right now (2019-2020) is taking a little break.


  1. UpHoofRight (wrong)

    Thanks for the status report.
    Looking forward for some vacation and playing some Civilization V.
    Though, meanwhile ill stay in this mode:
    “Alert (A) –remains asleep until sight of enemy –+25% defense.”

  2. DavidXanatos

    Nice, so they are trying to get fired and make room free for more pirates in Brussels.

    1. WokBoy

      Rick, you get us some form of ‘appreciate’ button NOW. Or else! 🙂

  3. phatzo

    Unbelievable! The corruption, lack of transparancy, and lack of democracy in the European Parlament never seizes to amaze me! We will take them down again its not that, it just pisses me of thats all.

    1. Rick Falkvinge

      Actually, the European Parliament are the only good guys here – they’re elected, so they actually care about what people think. The problem lies with the unelected European Council and European Commission, which are the other two power bases of the European Union’s lawmaking.

      1. Anonymous

        this is why you need to focus

      2. chillinfart

        And this is only a tentacle from a lot of efforts to introduce “ACTA like” measures.

        And don’t forget the EU-Colombia-Peru FTA (signed last month with the same “ACTA Paladin”, Karel De Gucht), that threatens privacy with forced monitoring for any communication service (including internet) in its IP section.

      3. Ahto Apajalahti

        Actually, I think the situation would be worse if there was a political majority government in the EU. The same Commission officials would still be drafting legislation and the drafts would be hammered through parliament as government proposals. There would always be a political majority supporting the government, and thereby everything the government proposed would get approval from the parliament.

        ACTA failed because there is not political majority government in the EU. This fact allowed each political group to form its opinion based on information from Commission, lobby groups and activists. If there was a political majority government, ACTA would have been passed, because each MEP belongin to a government party would have been obliged to vote for it.

        “Unelected” (actually approved by the parliament) European Commission where bureaucrats write legislation (they write legislation in every country anyway) is actually better for democracy than a political majority government such as in most EU states, where Parliament has basically only a rubber stamp function.

      4. I also care very much

        “they’re elected, so they actually care about what people think”

        haha,. Good one.

  4. HAX

    Yeah. I’m experiencing some kind of… out of body… thing. The Commission simply cannot be that stupid. Or?

    I have learned never to be surprised of anything in politics – especially not in EU politics. So, I’m not sure what to believe.

    Naturally, the Commission people have two basic reptile-brain options. Fight or run. And I agree with Rick. They are considering their options, right now. Hopefully, a few caipirinhas, joints and some good summer physical activities will get them in balance and do the right thing – to kill the IT-provisions (and some other stuff) in CETA.

    But if they don’t – they are not only picking the wrong fight. They are embarking on a much more disruptive journey, including the whole issue of power balance in the EU.

    In the Telecoms Package fight – we defended the principle of rule of law. And won. And this one might even be more epic. Now the fight stands between “corporatist” post-democratic bureaucratic power and some sort of common sense democracy.

    This is exactly the fight the commission should not take on right now – given the economic turbulence that might throw the EU into a major crisis, just a few weeks from now.

    On top of that, EU Council has thrown the whole system into gridlock on short-circuiting the division of power in the EU, regarding the freedom of movement in the Schengen-area.

    If the Commission don’t act up pretty quickly, it all will get out of hand.

    So, please. The Commission should consult its faculties. Insisting of IT-provisions in CETA is exactly the wrong fight (for them) at exactly the wrong time.

    But, as I said: Noting would surprise me…

    1. HAX

      In the middle of the night (CET). Discovered some bad grammar in my comment. But you see the big picture, right..?

    2. jimbo

      they are not in the least bit interested in the economic turbulence. all they are after is pleasing the paymasters, the entertainment and pharma industries, and getting as strong as possible copyright brought into law. they know the devastating effect there will be on the people but that doesn’t matter. what matters to them and those they are working for is to be able to sue as many people as possible, on accusation and IP address as evidence, just to please the US govt and US industries. these people deserve/need sacking asap!!

    3. krugar

      tl;dr: if CETA turns out to be zombie-ACTA, lets lobby to remove de Gucht et al.

      “You know, in certain older civilized cultures, when men failed as entirely as you have, they would throw themselves on their swords” ~ The Operative, Serenity

      if they try to get this trough EP (mostly) unchanged, we should openly campaign for resignations of the responsible commission members and reassignment of their top 2 layers of civil servants. not just “stop ceta” banners, but “stop de gucht” banners with faces and all that. this is personal now. the EU commission has been slapped down on this once. they were mighty surprised and they probably really did not know how we felt about acta. well, now they do know, and if they dare act in bad faith, they de-legitimize themselves so thoroughly that we should not give pause until we’ve seen sweeping personal consequences. its not like they can expect to get away with “you’ve been misinformed” this time.

      the rest is a somewhat off-topic rant, SCNR.

      lets be frank here. this whole EU thing is in question due to the banking/debt crisis, and some restructuring is likely to happen. i hope we as a continent actually stick together and not let the “markets” rip the EU apart, but if there is going to be “more europe”, civil society will have to put a stake in the sand and make sure that its not going to be some puppet Merkelreich under the reign of an unelected ESM that cannot be sued or disposed of, but something with a democratic leadership that can be held accountable by We, The People. you know, basic stuff like a parliament that can actually propose laws, leaders that are elected, and rules for transparency and proper criminal sanctions for corruption.

      this trend towards “technocratic” interim governments like we’ve seen in Greece and Italy may be tolerable in the short term on a national level (and is it not just sooo convenient for the political class if some ex-goldman-sachs suit takes the heat for those very necessary austerity measures?), but for a transnational body like the EU, there are all these “forever”-type legal agreements that tend to be put in place when there is a restructuring and we really need to get it right this time.

  5. Johan Tjäder

    Actually, the already ratified (national ratification pending) free trade agreement with the Republic of Korea, contains these provisions. Most of the ACTA-stuff seems to be in there.

    It seems to be an overall scheme of injecting into law IPR-regulations which do not have support by the people of Europe, by establishing them as free trade agreements, instead of using normal legislative tools.

    And by the way, the TFTP-treaty forcing Swift-bank transaction data into the hands of the U.S. government, was also injecting into law, something that could not be achieved with ordinary legislative means.

    This is a particularly nasty habit. When preparing a new law, governments are required to prepare the issue and carefully investigate all implications of introducing a new law. As an example, when transposing the Data retention directive into Swedish law, the government’s bill was 329 pages long. On the other hand, asking the Swedish parliament to accept the Framework agreement between the EU and South Korea (that came before the free trade agreement) – only 14 pages were required (for 45 pages of agreements).

    In the end it means that issues that ought to be legislative issues because they need to be properly investigated and considered, are injected in to law without any questions asked, and without any transparency in the process.


  6. Johan Tjäder

    So the post-ACTA EU needs to reevaluate it’s position on a great deal of issues in the IPR-field. As said earlier the comments from one official close to summer vacation is of no good value. The commissioners need to reevaluate their policy and in doing so, they must consider that the power balance in the council may also have shifted in this area. There is no more Sarkozy, there is only Hollande. Sarkozy was a hard liner who added weight. But I don’t really know where Hollande stands in the IPR-area, and how important such issues are for him.

    Putting pressure on Barrosso to sack ACTA-commissioner de Gucht might be the the best thing for EU now. He is obviously discredited with this large defeat. And I think the commission needs a reshuffle right now. Malmström needs to be moved before she does something even more bad than TFTP. And the commission needs a whole new take on the euro-issue and Europe’s everlasting growth issues. All of this is an opportunity which opens with the sacking of de Gucht. Unfortunately the EP cannot fire a single commissioner, only the entire Commission.

    I’d be surprised if Barrosso actually announced a reshuffle after vacation, but it’s not the worst thing that could happen.

  7. Välkommen till min blog |

    […] även en del politik då jag inte är speciellt förtjust i handelsavtal så som ACTA och kommande CETA. Som generell regel så kommer jag inte låsa in mig i specifika ämnen utan snarare skriva om det […]

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