Question and responses of the ACTA-Informationmeeting of 14th January 2010

cmretoschneider | 10.03.2010 11:53

 

The IGE informational meeting held at about ACTA on January 14th, 2010. One of the participants was Denis Simonet, chairman of the Pirate Party Switzerland (PPS). The following questions originated from PPS, the responses are from the IGE. If you want more details, we may refer you to the (German) roundupbased on the notes of Denis

If there is an organization in Switzerland who wants to act againts ACTA, how could they do it?

ACTA has to be ratified by the parliament. The ratification will have a facultative referendum.

How could an organization in Switzerland enforce the publication of the agreement (and its drafts)?

The law regulates public transparency and access which the administrations have to grant. The Freedom of Information Act does not states that one has to get access to every information.

The IGE was already contacted in order to obtain access to the drafted agreement but the demands were rejected because Switzerland has concluded with the other ACTA negotiators to not publish the drafts. Switzerland can not unilaterally break this rule as this could lead to a less favorable role for Switzerland in the negotiation process. Article 7, paragraphs stipulate d) and h) of the Transparency Act that it may not be published.

One has to introduce a request for access to the administration which created the document or which got hold of the said document (this case the IGE). If the administration refuses the access and the requester deems this not adequate so he may call the FDPIC.

Which are the targets for Switzerland?

ACTA wants to set an international precedent and wants to show that the problem has to be treated, this should start a multilateral discussion to raise awareness in other countries.

Who represents Switzerland?

The committee for the negotiations consists of two representatives of SECO, two of the IGE and one of the Directorate General of Customs. The negotiating mandate is issued by the Federal Council. The Federal Council did authorize the IGE to lead the negotiations in the name of Switzerland. SECO and the Directorate General of Customs have fixed participants. The latter are needed for discussing the chapter on the measures at the border, which are very effective means against counterfeiting and piracy.

Which claims were formulated? Who has formulated the target and why?

Claims:

• Within the mandate of the Federal Council, the guidelines must be considered.
• Switzerland contributes to the objectives of ACTA

Requirement by the Federal Council:

• Swiss law provides an adequate measure to tackle effectively the issue of counterfeiting and piracy. Therefore the Swiss system, is the representation of interests for the Swiss delegation

The role of the delegation:

• Switzerland is one of eleven participating parties. A total of 38 states are involved, if you segregate out the EU as a negotiating partner.

The motive for participating in the negotiations is the core belief that Switzerland has a highly developed industry and economy which are heavily dependent on innovation in order to be globally competitive. Hence the interest in the effective protection of intellectual property and an efficient way to enforce the rights is a priority. For this reason, Switzerland is involved in these negotiations.

Why was and is the public excluded from ACTA? The premise that ACTA correlates to the national security of the USA can not be accepted.

The charge of secrecy is brought up again and again. The IGE but does not know what should be meant by "secret". The fact that negotiations are conducted, what the content and purpose of the negotiations has always been published. Therefore one can not talk about secret negotiations.

The charge probably came because the proposals and text elements of the participating states will not be published. Negotiating proposals and negotiating texts in small groups are not published in accordance with established practice. This can even be denied according to the public law of Switzerland. There is still nothing fixed and there are initial proposals being discussed and perhaps even withdrawn. This, so that confidence space can emerge. The summary paper already shows in short phrases around which topics the negotiations turn and where the partners are seeing a need for action.

It is important to note that in December no consolidated version of draft existed. There were only individual negotiating proposals. But these documents do not go far enough, there is no fixed negotiating text. The summary paper would very well inform on the current status. If the negotiations are progressing paced, more can be published.

The confidentiality of the applications as they exist in the ACTA negotiations, are also consistent in the history of Swiss practice, a perfectly normal procedure. A model for transparency was even, that the public has been continuously informed about the progress of negotiations.

Can it be ruled out that ACTA will have an impact on Swiss law? If not, what areas will be affected?

The mandate clearly says: no change in law.

Thus ACTA should really have no change in the law to follow. The IGE currently negotiating, and nobody can possibly know the result at the end. So they can not absolutely say "No, there will be no change in Swiss law". They shall, however, ensure that no legislative changes will be needed. Nothing can be said about how ACTA will be transposed to Switzerland. Federal Rule, Articles 184, 140, 141, are stating that such agreements must be implemented.

If Switzerland should decide in the future, laws which are inconsistent with ACTA, which consequences would it entail if ACTA would be terminated in whole or in part?

It will be part of the final provisions, there is always the possibility that a State may adopt the autonomous decision to withdraw or terminate ACTA. Thus it loses all of its obligations but also rights. Yes, it is also in Switzerland's interest that this issue is clearly regulated in the agreement. But it was already present in international law that a state has the autonomy to accede to an agreement but also to withdraw at any time.

Why was this event organized only so late in the negotiation process?

Since the first complete document was drafted in December, the IGE did not saw it as important to inform before having something to show.

How can Switzerland explain the fact to participate in negotiations affecting potentially some hundred millions of persons without including the public?

The Federal Council has decided to participate and given a mandate. This was done based on the constitutional jurisdiction.

How is it ensured that ACTA takes into account the interests of the excluded from the negotiating parties, such as consumers and businesses?

• Through this event, for now, for example,
• Switzerland believes that the negotiation process is not yet at a stage where one could speak of an end of the negotiations. The actual negotiations are only starting.

Why do the USA grant access to the documents to particular lobbyists, while the public is not informed? Are there private Swiss organizations or persons having access to the content of the negotiations? If so, why?

• Switzerland can only speak for itself, so it can not take a stance for the USA. This one should be inquired about with the competent authorities in the U.S.
• Switzerland always organizes such briefings with all interested parties.
• If the IGE may not forward informations for confidentiality reasons, then this is true for everybody, they all have the same informations, no company is treated separately.
• No, it is only within the administrative bodies concerned with the inspection. Outside of the negotiations, no one is in a privileged position.

Could this Agreement pull disadvantages for countries that are now excluded in the negotiations?

This are plurilateral negotiations, binding for the countries now involved. Other countries may ultimately arrive at the realization that they want to sign and ratify ACTA. The interest exists, to add other locations other states. In principle, however, it is the autonomous decision of any future potential partner of ACTA.