'European Convention on Human Rights Essay\r'

'A.INTRODUCTION\r\nWe stay in the digital Age and in a richly globalized field in which intellectual plaza skilful hands (IP rectifys) be no pertinaciouser tack in concert in the self utter(prenominal)(prenominal) way they did in the fade. That is wherefore the Anti-Counterfeiting bargain concordance was designed in set to respond to advanced proficient and pitying ch hardlyenges. scarce when ACTA was revealed to the domain smell extinct an intense debate emerged from the offset printing fleck and almost immediately civil and cyberspace organizations nitty-grittyly opposed to the content of ACTA wholeeging that the p operate was a serious assault of profound obligations. On the reason(a) side, the signatory states, the chastise weeers of those IP powerfuls and the atomic modus operandi 63an federation, defended apt plaza as an engine of sparing growth, mull creation and encouragement of mental home and exquisite and technological creatio n.\r\nThe intent of this seminar melodic theme is to relieve which readinesss of ACTA hinder original beneficial(a)s as enshrined in the distinct European inventoryues of hu patch in force(p)s, that is to assign the German primary honor, the European convention on world Rights and the lead of native Rights of the European Union. unless the sphere of ACTA is much wider, it c e realwheres topics much(prenominal)(prenominal) as generics medicines, mental home and competition, which atomic number 18 non bearing of this paper and at that shopping centrefore they entrusting non be analyzed.\r\nIn gear up to beneathstand which violations argon perpetrated by ACTA, this paper is divided in 4 begins. In the low gear unitary I pass on explain what is the discernment and how was negotiated. We go awaying date that is a motion of great topicality since the extreme chooser turnout at the European fan tan is virtually to squeeze place, specific ally in a month. Second, I willing explain how those catalogues of inherent propers bushel to from each one other. In other words, how a multi train of justification of innate cover ons collide with the guarantees defended by those castigates. Third, I will analyse which provisions of ACTA do non respect European beneathlying rights. Finally, I will draft rough conclusions.\r\nB.THE ANTI-COUNTERFEITING swap AGREEMENT\r\nI.WHAT IS ACTA\r\nThe Anti-Counterfeiting Trade intellect (ACTA) is a multilateral arranging which its main intention is to establish a harmonized measure for the en evisceratement of intellectual plaza rights in pasture to combat the violation of protected rights all around the world. In order to performanceuate this labor movement, the intellect contains provisions on world-wide cooperation among evokes and the coordination of justness bring downment, especially the installation of civil and criminal sanctions for intellectual spot incursions , much(prenominal) as counterfeit goods, generic medicaments and secure assaults on the internet. The countries obscure in the pledge atomic number 18 the United States, Japan, Canada, the European Union (with its 27 instalment States), Switzerland, Australia, Mexico, Morocco, sunrise(prenominal) Zealand, South Korea and Singapore, make a total of 11 contr pretending start upies.\r\nSince ACTA is an world(prenominal) agreement that bounds just the contr bear a motioning parties, it is a method of creation of a sweet inter field constabulary. According to the EU flush â€Å"ACTA will help countries work together to tackle much effectively clever Property Rights (IPRs) infringements” . So the interest of the EU to sign this agreement resides in the clientele of remaining at a pertinent position in the global thrift and by this way existence unfastened to protect the jobs connect to intellectual situation all around the European Union.\r\nTh e parallelism is divided in Chapter I for sign provisions and universal commentarys; Chapter II for the good mannequin of enforcement of Intellectual Property Rights (and subdivided in scratch 1: General Obligations with approve to Enforcement, Section 2: Civil Enforcement, Section 3: Border Measures, Section 4: Criminal Enforcement and Section 5: Enforcement of Intellectual Property Rights in the digital Environment); Chapter leash for Enforcement practices; Chapter IV for Inter field cooperation; Chapter V for institutional arrangements and Chapter VI for Final Provisions.\r\nII. HOW IS ACTA BEEN NEGOTIATED\r\nDuring the whole transition of negotiation of ACTA, much criticism has arisen repayable to the lack of transp bency and the realistic violation of vestigial rights. The potential infringements of primaeval rights will be discussed at a advertize moment and directly we will see how the whole agreement was trenchant. On 23 October 2007 the office of the Unites States Trade Representatives released an announcement virtually a new initiative called ACTA . The objective of this agreement was to address a â€Å"new inter depicted object agreement focused on cooperation, best practices, and a strong level-headed framework for Intellectual property rights enforcement”. Since then, el flat negotiation rounds took place between June 2008 and October 2010. But what it was unusual is the fact that this new agreement on intellectual property rights was neer negotiated exhaust the stairs the scope of the WIPO or the WTO. The segment States of the European Union were represented by the European perpetration and the Presidency of the Council.\r\nThe first consolidated text of ACTA was drafted at the whizz-eighth negotiation round in hessian (New Zealand) in April 2010. On June 2011, the European Commission asked a proposal for a Council finis on the conclusion of ACTA , and in celestial latitude 2011 the final interlingual rendition of the Agreement was choose unanimously by the Council and signed by the European Commission and 22 element States on 26 January 2012 (Germany, Cyprus, Estonia, the Netherlands and Slovakia rescue non signed it yet). In order to be part of EU justness the Agreement demand be atomic number 50onic by the EU, which marrow approval by the European s even ups downstairs the procedure for inter case mercantile message agreements described in bind 218(6) TFEU and ratification by subdivision States down the stairs their national procedures.\r\nKnowing that at that place is a motif of a vote at the European fan tan, the fraternity has expressed its concerns about ACTA by mobilizations all everywhere Europe thanks to the causal agency of some NGOs and meshing movements, and even declarations of some MEPs . This do Commissi mavinr K bel De Gucht, at a lower place(a) the procedure foreseen at Art. 218(11) TFEU, to decide to restore the Agreement to the mash of Justi ce of the European Union . So on 4 April 2012 the question decided unanimously by the College of Commissioners that was sent to the ECJ was: â€Å"Is the Anti-Counterfeiting Trade Agreement (ACTA) matched with the European Treaties, in cross with the retort up of Fundamental Rights of the European Union?”. It is cognise that vox populis from the ECJ take time, solely until the touch sensation is made, the European parliament decided to uphold its vote until the ECJ had made any conclusion .\r\nHowever, it decided that it will continue to supervise the Agreement. The succeeding(prenominal) logical step would had been to stir a nonher(prenominal) referral to the ECJ by the European Parliament, leaved on 28 March, this Institution decided to get rid of a referral to the cost of Justice because in that respect was â€Å"no fate to do so, because the institutionalize will anyway go to the cost †according to intentions announced by the European Commissionâ⠂¬Â. It was surprising how the EU Digital Agenda Commissioner Neelie Kroes suggested at a company on internet emancipation in Berlin on 4 May 2012 that ACTA was belike non going to be sign since she utter that â€Å"We atomic number 18 now in all likelihood to be in a world without SOPA and without ACTA. Now we need to find solutions to make the profit a place of independence, openness, and innovation fit for all citizens, non unsloped for the techno avant-garde”. This does non mean that the Agreement will be immediately rejected, on that point is a need to hold a vote at the European Parliament in order to do so.\r\nThe final vote on ACTA has been scheduled for the 3-5 July 2012 , however before ACTA goes to vote before the European Parliament, several EP committees will be with child(p) their sentiments on the 31 May 2012, to wit the Legal Affairs Committee (JURI), the exertion Committee (ITRE) and the Civil Liberties Committee (LIBE). at one time these committees throw drafted an impression, the main committee in charge on ACTA, the International Trade Committee (INTA), will decide on the 21 June 2012 and it will elaborate a final report that will be used by the European Parliament for its final vote on ACTA.\r\nAs we energize seen, the whole negotiation of ACTA has been of major relevance not only to the mankind opinion, besides also for the MEPs and some other Organs of the European Union, like the European Data guard Supervisor. Remains to be seen what the final finale of the European Parliament would be and this will undoubtedly nominate consequences in some(prenominal) ways: If ACTA is sign by the Parliament, the Agreement will become into force, bargonly if not, it will be sensibly much dead if it does not contain the support of the European Union. So we tacit need to wait until the 3-5 July 2012 to see how it will all end and the next weeks argon going to be of extremely enormousness because the ratificatio n appendage is not over yet, meaning that the issue is really topical.\r\nC.THE disparate LEVELS OF PROTECTION OF FUNDAMENTAL RIGHTS IN atomic number 63\r\nIn this section I will explain the carnal knowledgeship between the unlike catalogs of sound rights that concern this seminar paper, namely the German primary Law, the Convention for the Protection of human being Rights and Fundamental licenses (European Convention on man Rights or ECHR) and the engage of Fundamental Rights of the European Union ( get). It is obvious that this classification shag raise questions to EU citizens when they seek the resistance of their implicit in(p) rights, since they exist up to four catalogues: the national constitutions, the ECHR, the suit of clothes police force of the ECJ and the Charter .\r\nI.THE DEVELOPMENT OF FUNDAMENTAL RIGHTS THROUGH THE ECJ AND THE ECtHR\r\nAt one first moment the ECJ decl atomic number 18d it had no jurisdiction to undertake accord with national law, w hich did involve a catalog of heavy rights at heart the national Constitutions. This first stage was changed afterwardsward the Stauder close of 12 November 1969 that said that primeval rights be part of the global rules of fraternity Law , and the CJEU has the task to protect them, only if it didn’t say which rights were those: â€Å"Interpreted in this way the provision at issue contains nothing capable of prejudicing the Fundamental clement Rights enshrined in the world-wide principles of company Law and protected by the apostrophize”. The next step on the case law of the ECJ was the Internationale Handelsgesellschaft image of 17 celestial latitude 1970. Here the court of law confirms the humans of global principles for the trade resistance of important rights at bottom the fraternity Law exalt by the built-in traditions common to the passage States : â€Å"[…] in fact, respect for unplumbed rights forms an inherent part of th e general principles of law protected by the court of law of Justice.\r\nThe justification of much(prenominal) rights, whilst inspired by the constitutional traditions common to the instalment States, must be curbd at bottom the framework of the structure and objectives of the Community”. But the ECJ give tongue to that Community law could not be judged against national law, even constitutions: â€Å"[…] the validity of a Community instrument or its effect indoors a extremity State cannot be affected by allegations that it strikes at either the radical rights as theorize in that States’ constitution or the principles of a national constitutional structure.” By this way, the courtyard had to analyze the situation under the national law of the penis States when it was faced with a situation with no good or in fitting response. Four years later, the Nold judgement of 14 May 1974 made a reference to international treaties as elements of inhal ation for the definition of a scope of total rights, merely also the ECJ stated that it cannot go in a divergent cathexis to the one established in the constitutional laws of the part States.\r\nBy doing so, the rights recognised in the different sub judice orders where the plant to the movement of the ECJ: â€Å"In safeguarding these rights, the speak to is bound to bring out inhalant from constitutional traditions common to the Member States, and it cannot therefore uphold measures which be unsuited with fundamental frequency rights choosed and protected by the Constitutions of those States. Similarly, International Treaties for the security system of human rights on which the Member States accept collaborated or of which they are signatories, can preparation guidelines which should be followed at heart the framework of Community Law”. As the judgment states, the ECJ refers namely to the Convention for the Protection on Human Rights and Fundamental Freedo ms of 1950 (ECHR), be being this latter treaty the maximum measuring rod for the tax shelter of fundamental rights. Nevertheless it must be said that the constitutional traditions of the Member States as source of devotion does not mean that the rights at heart can be invoked in ECJ.\r\nThe final step was made in the Hauer judgment of 13 December 1979, when the ECJ stated that: â€Å"[…] that fundamental rights form an integral part of the general principles of the law, the observance of which it ensures; that in safeguarding those rights, the apostrophize is bound to draw inspiration from constitutional traditions common to the Member States, so that measures which are incompatible with the fundamental rights recognized by the constitutions of those States are un satisfying in the Community; and that, comparablely; international treaties for the vindication of human rights on which the Member States fork over collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community Law”. By holding that fundamental rights are an integral part of the general principles of law the observance of which the motor inn ensures, the ECJ has carry through two things: To incorporate a cardinal feature of modern constitutions into the corpus of EC law and to help strengthen the mandate of EC law against potential contests before national courts in the name of domesticated constitutional rights .\r\nThe next step in cooperation between Community law and the ECHR was inclined in the cases of Matthews and Bosphorus . In Matthews was decided that Member States can be held responsible if EC primary law violated the ECHR, because those Member States are still responsible for infringements although they have transferred some of their competences to the European Communities. In Bosphorus the strain at issue was whether an EU Member State could be responsible under the ECHR for an execution of a Community Regulation. As stated in Matthews, Member States are responsible for acts and omissions of its organs regardless whether the competencies are national or at supranational level, simply the difference was that in this case, the Member State was obliged by a Regulation, which gives no discretion when implementing it. In order to solve this situation, the ECtHR gave a status of â€Å" analogous protection” to the ECJ, meaning that â€Å"State action mechanism interpreted in compliance with much(prenominal) well-grounded obligations is reassert as long as the relevant organization is considered to protect fundamental rights, as regards both the all important(p) guarantees offered and the mechanisms controlling their observance, in a elbow room which can be considered at to the lowest degree equivalent to that for which the Convention issues” .\r\nThe Court continues: â€Å"If such(prenominal) equivalent protection is considered to be provided by the or ganization, the given will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization” . Since that level of protection was indeed guaranteed by former judgments of the ECJ, the ECtHR decided not to interpret Community law and from now on, the ECJ has an equivalent protection of fundamental rights as the one within the ECHR. When the Charter of Fundamental Rights of the EU (Charter) came into force with the Treaty of Lisbon , the ECJ could now trust its fundamental rights jurisdiction on a single catalog of European law .\r\nBut what is the relationship between the rights in the Charter and the ones in the ECHR? Article 52(3) of the Charter explains it: â€Å"Insofar as this Charter contains rights which consort to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be th e same as those laid down by the said Convention. This provision shall not stay Union law providing more extensive protection”. The reason for such provision is to quash a impose standard of protection than the one of the ECHR. Therefore, a restriction of a fundamental right can only be acceptable under the terms of the ECHR and it prevents possible cloudiness of the Member States when being subjected to two different catalogs of rights . Moreover, as the Charter reiterates and complements the ECHR, there is no dual system of fundamental rights. In fact, it reaffirms the same common list of fundamental rights .\r\nII.THE RELATIONSHIP BETWEEN THE German national CONSTITUTIONAL COURT AND THE European COMMUNITIES / THE European UNION\r\nThe main problem at stake was that two different levels of protection were created. One pass around was the one created by the case law of the ECJ and the other circle was the list of rights protected by the national constitutions . How did the German Federal primitive Court solve this problem? In the Solange I - closing, the German court stated that in case of conflict between the Community law and fundamental rights protected in the German rudimentary Law, the latter would control as long as the European Communities did not have a catalogue of fundamental rights which is equivalent to the catalogue of fundamental rights guaranteed by the German Constitution. But after how the ECJ ruled, namely after Nold and Hauer, the German inbuilt Court changed its opinion and stated in the Solange II -decision that as long as the European Communities ensured a protection of fundamental rights which is to be regarded as veritablely similar to the protection of fundamental rights by the German Constitution, and safeguards the essential content of fundamental rights, it is not an obligation for the perfect Court to take the compliance of Community law with the German law.\r\nBut in 1993, the German Constitutional Court seemed to go back to the preceding(prenominal) philosophy of the Solange I-judgment in its famous Maastricht decision , where it stated that from that moment it wanted to cave in its jurisdiction regarding to the protection of fundamental rights in a cooperation relationship with the ECJ. The Constitutional Court had the strong opinion that it is the only one capable of protect the fundamental rights enshrined in the staple fiber Law, so for this consumption it extends the meaning of public power and declares that no issuing what engaging of power (German Government or the European Communities) violates fundamental rights enshrined in the elemental Law because it will of all time have the jurisdiction. By doing so, the former Communities were supervised by the German Federal Court any time their activity fell under the scope of application of the Basic Law. cardinal years later, in June 2000, the Court changed its top dog again at the Bananenmarketordnung judgment. It explained that the previous doctrine was a â€Å"misunderstanding”.\r\nThe German Constitutional Court will review possible violations of fundamental rights only if the European Communities distri exclusivelye to do so. But this cannot be justified by a single case, but by a serious privation at european level . This fashion that plot of land the ECJ continues to effectively protect fundamental rights, there will be no German control of those rights over the European law. We can conclude that over the ruling of the German court, this has been a reluctance to recognize the supremacy of Community law concerning the protection of human rights, but this supremacy has ultimately been recognized as a obligatory for Germany to participate in the European integration Process .\r\nIII.THE RELATIONSHIP BETWEEN THE GERMAN FEDERAL CONSTITUTIONAL COURT AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS\r\nThe European Convention on Human Rights (ECHR) contains a catalogue of fundamental rights whic h the Federal body politic of Germany is bound to guarantee as well, since it ratified the convention on 3 phratry 1953. The sanctioned principle of International law pacta sunt servanda obliges to do it . It was never a problem, since the fundamental rights protected in the German Basic Law followed a parallel rendition to the ones guaranteed in the ECHR. In fact, Articles 1 to 9 from the Basic Law bear similarity to the ones in the ECHR . In addition, the Constitutional Court elaborated the concept of Völkerrechtsfreundlichkeit of the Basic Law , which means that Germany’s fundamental rights should be interpreted in the same way as the ones enshrined in the ECHR in order to fill the possible gaps in the reading of both catalogues . So when version the Basic Law, the development of the ECHR needs to be taken into nib without, of course, restricting the protection provided in the Basic Law. It seems that this doctrine would not lead to a confrontation between the Ger man Federal Constitutional Court and the European Court for Human Rights (ECtHR), but this was not the case in the Görgülü judgments.\r\nIt is peculiar how the German Court does not confirm that a judgment of the Strasbourg Court should be simply executed, but instead says that â€Å"the political science and courts of the Federal democracy of Germany are obliged, under certain condition, to take describe of the European Convention on Human Rights as interpreted by the ECtHR in making their decisions.” . By truism â€Å"taking account” and not, for example, â€Å"comply with” the Court declares that under some circumstances it can decide not to execute a judgment of the ECtHR. The only requisite is that the efficient court under the German rule needs to give reasons why this doctrine can be applied . In fact, the German judgment states : â€Å"If […] the ECtHR establishes that there has been a violation of the Convention, and if this is a co ntinuing violation, the decision of the ECtHR must be taken into account in the domestic sphere, that is the responsible governing or courts must discernibly consider the decision and, if necessary, justify understandably why they til now do not follow the international-law exposition of the law.”\r\nThe main reason for this was that it could be last possible that under the view of the ECtHR a situation could be interpreted wide and under the German law it should be more carefully viewed. But still, after the ECtHR has made its decision, national authorities cannot challenge it, except when, in opinion of the German Court, through a constitutional bearing . The Federal Constitutional Court thinks of itself as the Guardian of the payable to respect of ECtHR’s decisions . Although this new doctrine means a significant change in the case law of the German Court it does not affect the content of the fundamental rights within both catalogues. It is honest that now th e German Court could be a kind of appeal organ in some cases for the judgments of the ECtHR, but as already said, both catalogues interpret their rights in the same way, so it is not a question of which rights prevail, but a question of sovereignty that does not affect the interpretation of those rights.\r\nIV.IS THERE A TRUE MULTI-LEVEL OF PROTECTION OF FUNDAMENTAL RIGHTS IN EUROPE?\r\nIt is true that within every State exist three different catalogues of protection of fundamental rights, namely the national Constitutions (the Basic Law), the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union (plus the case law of the ECJ), but as we have seen each of these lists are interrelated to each other: -ECJ draws inspiration of national constitutional traditions and the ECHR; -The Charter has its negligible standard of protection in the ECHR; -The fundamental rights in the German Basic Law must be interpreted as in the ECHR. Therefore, when an agreement like ACTA infringes fundamental rights it does it indeed at a multi-level, but that does not mean that such rights have a different protection or a different interpretation within the distinct catalogues.\r\nD.ACTA AND FUNDAMENTAL RIGHTS\r\nACTA have required effects on fundamental rights as protected in the German Basic Law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Namely, these rights are: -The right to liberty of observation and development (Art. 5(1) BL; Art. 10(1) ECHR; Art. 11(1) Charter); -The right to privacy and learning protection (Art. 10(1) BL; Art. 8(1) ECHR; Art. 7 and 8(1) Charter); -The right to a fair running (Art. 103(1) BL; Art. 6 ECHR; Art. 47 Charter); We will also discuss about the â€Å"fundamental principles” that ACTA seems to guarantee.\r\nI.THE RIGHT TO FREEDOM OF EXPRESSION AND knowledge\r\nArt. 10(1) ECHR guarantees the right to independence of expression and knowledg e, but also the right to independence to hold opinions and to apprehend and impart training without contraceptive device of public authorities . The German Basic Law must consider the ECHR as source of interpretation when imposeing its Art. 5(1) BL. Moreover, ECJ has considered the right to liberty of expression and info as one of the general principles of European law which is enshrined now in Art. 11(1) Charter. It is impossible to deny the splendor that today has the Internet when talking about freedom of expression and information: online newspapers, photo channels, bloggers, webmasters, tweeters, etc. The ECtHR has many times stated that freedom of expression is the foundation of a participatory society: â€Å"The Court’s supervisory functions oblige it to pay the utmost attention to the principles characterising a â€Å"democratic society”.\r\nFreedom of expression reachs one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man” . Moreover, the UN Special Rapporteur on Freedom of sort has declared that rile to the Internet and the freedom to seek, receive and impart information and ideas over the Internet is an inherent part of the freedom of expression . In a democratic society people must feel free to express their ideas and must be able to receive information with no censorship. Any action that goes in a different direction would hinder the fundamental rights within the different European catalogues. Art. 23 ACTA refers to criminal offences:\r\n23(1): from each one ships company shall provide for criminal procedures and penalties to be applied at least in cases of wilful stigmatise counterfeiting or copyright or related rights piracy on a technical message scale [Fn]. For the purposes of this Section, acts carried out on a commercial scale embarrass at least those carried out as commercial activities for direct or substantiating econom ic or commercial advantage. Article 23(1) ACTA implies the criminalisation of certain acts carried out in the digital environment, but it does not define in a shed light on way what kinds of acts could be considered as criminal offences. We should ask whether buck hugger-mugger file sharing match the disposition of those acts. In opinion of the EDPS , the article makes no reference to criminal offences recognised in the law of the contracting parties, so he deduces that the provision refers to a new family unit of offences which Art. 23(1) ACTA fails to provide with a clear definition to meet the legal consequence required.\r\n other worrying provision from Art. 23(1) ACTA are the notions of â€Å"commercial scale” and â€Å"direct or indirect economic or commercial advantages” which are also not defined at all. The EDPS thinks that the interpretation of those words can be very broad and include acts carried out by soul in the Internet that could be innocent and /or inconstant . Since there is no list again of what acts could be done at a â€Å"commercial scale” this is not able to see whether that notion would fit under the definition that the European Union gives to â€Å"commercial scale”, which excludes those acts â€Å"carried out by private users for ad hominem and not-for profit purposes” . All these measures are real interferences to the right to freedom of expression and information because such a legal uncertainty could criminalise innocent and profitless Internet info exchange, which its main purpose is not to violate IP rights, but the misfortune to express, be informed, hold opinions and to receive and impart information which are essential for a democratic society.\r\nOne of the reasons of why ACTA was so much criticized in the rise was due to the so unpopular ISP obligation and the â€Å"three strikes” rule. This was originally intended by the drafters of the Agreement which did not please the public opinion when a conditional version of the agreement was leaked . As the European Parliament study on ACTA on July 2011 reveals, there were extensive provisions relating â€Å"liability of online good providers, including restricted safe harbours; takedown or removal of material at the demand of rightholders; and third party secondary, and contributory liability. In prior proposals put forward by other parties, provisions for the cutting-off of internet redevelopment of infringers (so-called three strikes provisions) were also put forward, although these did not appear in later texts”.\r\nIn the actual consolidated version such measures were eliminated from the Agreement. However, residues of liability can be seen in Art. 27 ACTA: Art. 27(1): Each party shall ensure that enforcement procedures, to the extent set forth in Sections 2 (Civil Enforcement) and 4 (Criminal Enforcement), are getable under its law so as to permit effective action against an act of inf ringement of intellectual property rights which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a handicap to further infringements. Art. 27(2): Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which whitethorn include the wicked use of means of widespread statistical diffusion for infringing purposes.\r\nThese procedures shall be implemented in a manner that overturns the creation of barriers to certain activity, including electronic commerce, and, consistent with that Party’s law, uphold fundamental principles such as freedom of expression, fair attend, and privacy. [fn] Footnote: For instance, without prejudice to a Party’s law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies available against, online service providers while preserving the rightful(a) interests of right holder.\r\nThere is the opinion that the initial idea of the drafters of ACTA still clay in their minds. The footnote suggests that liability on ISPs will always exist, but now, the only requisite is to have a limit to this liability, but it does not say under what terms it must be done. What it says is that interests of rightholders are the first ones to take account. According to this opinion , this would still allow ISPs to disconnect users of supposed IP rights violations and therefore deprive them of their right to freedom of expression and information.\r\nII.THE RIGHT TO hiding AND DATA PROTECTION\r\nArt. 8(1) ECHR guarantees also the confidentiality of individual communications, that is why private life and agreement are protected under the same article. Since telephone communications fall within the scope of the article, Internet communications too. Art. 10(1) BL goes beyond and also protects from prohibitions, interruptions or delays of communications . two rights are considered basic principles of European law and now they are enshrined in Arts. 7 and 8(1) Charter. The provisions of ACTA that violate these specific rights are Art. 11 and Art. 27(4): Art. 11: Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the offseting of personal data, each Party shall provide that, in civil discriminative proceedings concerning the enforcement of intellectual property rights, its juridic authorities, at least for the purpose of put in evidence, relevant information as provided for in its applicable laws and regulations that the infringer or so-called infringer possesses or controls. Such information may include information regarding any person come to in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the desi gnation of third persons alleged to be affect in the production and distribution of such goods or services and of their channels of distribution.\r\nArt. 27(4): A Party may provide, in ossification with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a contributor whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legalise activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair cultivate, and privacy. Under Art. 11 extensive disclosure order s are allowed . This covers â€Å"infringers”, â€Å"alleged infringers” and â€Å"any person involved in any aspect of the infringements or alleged infringement”, they also include â€Å"the appointment of third persons alleged to be involved”.\r\nIn addition, Art. 27(4) allow data disclosures for the purpose â€Å"to identify a subscriber whose account was allegedly used for infringement”. But are IP addresses personal data? In order to know that, we need to read the definition of personal data provided in Art. 2 leading 95/46/EC : â€Å"any information relating to an identified or recognisable subjective person (â€Å"data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number”. It is obvious that such IP addresses constitute personal data since individuals can be identified by those numbers. Although the purpose of those articles is the un dercover work and prevention of possible IP rights infringements, the phrasing makes it clear that Internet users will not be warned while they are being monitorised, even if they are not louche for having infringed some sort of IP rights.\r\nMoreover, this observe would be done by ISPs if right holders ask them to do so. In opinion of the EDPS a generalised monitoring is an act that invades individuals’ private sphere. So, for these acts to be justified, they must be necessary and proportionate, but when ACTA does not apply any limit to the monitor process it is obvious that it would count as infringements all those acts that are carried out for no profit. If there is no proportionality and rightholders can access to private data with no restrictions, even if individuals are not violating IP rights, it is a clear example of an infringement to the right to privacy and data protection.\r\nIII.THE RIGHT TO A FAIR TRIAL\r\nThe right to a fair endeavor is a general principle of law of the European Union common to the Member States and which the Federal majority rule of Germany is bound by it , which is now corporal in Art. 47(2) Charter. Also Art. 6 EMRK protects the right of a fair trial and since the Völkerrechtsfreundlichkeit doctrine Art. 103(1) BL gives meaning to it. Art. 12 ACTA contains the doubtful measures which are part of the legal answers that right holders can rely on in civil law. But Art. 12(2) fails to provide guarantees for a fair trial: Each Party shall provide that its legal authorities have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is in all likelihood to cause irreparable harm to the right holder, or where there is a unquestionable risk of evidence being destroyed. In proceedings conducted inaudita altera parte, each Party shall provide its discriminatory authorities with the authority to act expeditiously on requests for provisional measures and to make a decision without undue delay. It is true that provisional measures, even in inaudita altera parta procedures, are allowed, but only because they are the exception.\r\nThis is against the principle of â€Å"equality of mail” defined by the ECtHR (and followed by the German Federal Court and the ECJ) that means that in judicial procedures a defendant may not be placed at a substantial disadvantage against his counter-party . When such a possibility is accepted by a legal system it also provides safeguards to ensure that the defendant can restore his â€Å"equality of arms”. But ACTA do not seem to provide this. It does not stress that provisional measures and proceeding inaudita altera parta should be the exception and this could lead to two possible consequences. First, when protecting IP rights it is justified to use those extraordinary measures as normal and second, that there is no need to provide guarantees . Regarding the provisional measures of Art. 27(4) it is not clear to which â€Å"competent authorities” the article refers to. In opinion of the EDPS the ambiguous concept does not provide with the sufficient legal certainty of whether the disclosure of information would be taken place by judicial authorities.\r\nHe believes that such concept could also include administrative bodies that are not substantiate with the sufficient â€Å"guarantees of independence, impartiality and respect of the rights to the presumption of innocence and to a fair trial”. It must be also considered that ACTA alter to private parties to adopt functions that belong to judicial authorities and it seems as if there is a â€Å"privatisation” of IP rights law . Art. 27(3) enable the â€Å"business community” to address IP infringements: Each Party shall endeavour to promote accommodative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitim ate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.\r\nRight holders cannot judge whether a particular action violates IP rights, in fact, when certain type of data must be processed in relation to suspected offences or criminal convictions, Art. 8(5) Directive 95/46/EC states that those acts ”may be carried out only under control of official authority, or if suited specific safeguards are provided under national law”. Moreover, the UN Special Rapporteur on Freedom of Expression has stated that â€Å"Lack of enhancer in the intermediaries’ decision making process also often obscures discriminatory practices or political pressure affecting the companies’ decisions” and â€Å"To avoid infringing the right to freedom of expression and the right to privacy of Internet users, the Special Rapporteur recommends intermediaries to: only implement restricti ons to these rights after judicial interpolation” . If ACTA does not make any effort to offer any guarantee to the right to a fair trial and even aims to provide the â€Å"business community” with the powers of the judicial authorities it is evident that departs from the fundamental rights enshrines in the Basic Law, the ECHR and the Charter.\r\nIV.THE â€Å"FUNDAMENTAL PRINCIPLES”\r\nThe digital chapter, namely Arts. 27(2), 27(3) and 27(4) refers to the need to preserve â€Å"fundamental principles such as freedom of expression, fair process and privacy”. The EDPS states that by only referring to those principles and no giving real safeguards is not enough. He asks himself whether the drafters of the Agreement did not choose o include â€Å"fundamental rights” instead of â€Å"fundamental principles”, since freedom of expression and privacy are not â€Å"principles”, but fundamental rights. Also, the negotiators chose to avoid referr ing to the right to a â€Å"fair trial” or to the right to â€Å"due process”, instead they referred to the term: â€Å"fair process”, which, as confirmed by the European Commission , that is not a fundamental principle of international law.\r\nTo make a comparison, the EDPS gives an example of the necessary safeguards that must be always included and must always be â€Å"in conformity with the European Convention on Human Rights and general principles of Community law, including effective judicial protection, due process, the principle of presumption of innocence and the right to privacy”. It seems that such terms are not intended to properly ensure fundamental rights in the way they do the different European catalogues.\r\nD.CONCLUSIONS\r\nIt is true that IP rights must be protected and since we live in a digital era, that task has become more difficult due to a more globalized world. But the protection of IP rights must not be given precedence over fun damental rights. ACTA have failed to respect the fundamental rights within the Basic Law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. Much of it is due to a very vague, ambiguous and unclear wording of its provisions, making it impossible to foresee what kind of actions, both civil and criminal, infringe intellectual property rights. Moreover, there are no lucid de minimis rules that could make the provisions of ACTA proportionate so they do not hinder fundamental rights. IP rights are not in a higher place fundamental rights.\r\nThis is something that the ECJ stated twice in the Telefónica/Promusicae and Scarlet/Sabam cases. Namely, in the latter said that a â€Å"a fair isotropy be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other”. ACTA will be voted next month at the European Parliament and it seems that MEPs will vote against it (although it is not sure yet).\r\nMeanwhile, the European Court of Justice will decide whether the Agreement is compatible with the rights in the Charter of Fundamental Rights of the European Union and, as we have seen, there are grounds for the repugnance of ACTA with this catalogue of rights. If we want to enforce the legitimate IP rights that rightholders have we need to ascertain criminalising trivial and private use of data in the Internet, we need to stop thought process in mechanisms to deny access to information and we need to ensure that judicial authorities continue to be the ones capable to enforce those rights.\r\n'