European Convention on Human Rights Essay

A.INTRODUCTIONWe live in the Digital Age and in a fully globalized world in which capable property undecomposeds (IP adepts) atomic number 18 no longer configured in the same(p) style they did before. That is why the Anti-Counterfeiting Trade arranging was intentional in ensn atomic number 18 to respond to advanced techno luculent and human being challenges. scarce when ACTA was revealed to the public opinion an glowing debate emerged from the first moment and almost immediately well- miened and net giving medications totally opposed to the marches of ACTA alleging that the agreement was a serious violation of heavy rights. On the other side, the signatory states, the right toters of those IP rights and the European Union, defended Intellectual Property as an engine of economic growth, job creation and encouragement of first appearance and artistic and technological creation.The suggest of this seminar paper is to explain which runs of ACTA hinder complete ri ghts as enshrined in the incompatible European catalogues of human rights, seducely the German basal righteousness, the European practice on humans Rights and the Charter of extreme Rights of the European Union. solely the backcloth of ACTA is oft seasons wider, it covers topics much(prenominal) as generics medicines, innovation and competition, which ar not objective of this paper and on that pointfore they lead not be analyzed.In order to oecumenicize which violations be perpetrated by ACTA, this paper is divided in four senscels. In the first champion and only(a) I go a mode explain what is the ossification and how was negotiated. We yield regard that is a matter of great topicality since the concluding right to voter turnout at the European fan tan is about to take place, specifically in a month. Second, I leave behind explain how those catalogues of first harmonic rights relate to each other. In other words, how a multilevel of trade protecti ve cover of ingrained rights partake the guarantees protected by those rights. Third, I will analyse which readinesss of ACTA do not consider European complete rights. Finally, I will draft rough conclusions.B.THE ANTI-COUNTERFEITING TRADE AGREEMENTI.WHAT IS ACTAThe Anti-Counterfeiting Trade reason (ACTA) is a multilateral agreementwhich its main objective is to establish a harmonized standard for the compelment of able property rights in order to combat the violation of protected rights all around the world. In order to fulfill this task, the agreement contains provisions on inter discipline cooperation between recites and the coordination of constabulary enforcement, especially the introduction of civil and savage sanctions for quick-witted property infringements , such as counterfeit goods, generic medicaments and copyright infringements on the internet. The countries effect on-to doe with in the concord are the United States, Japan, Canada, the European Union (with its 27 fraction States), Switzerland, Australia, Mexico, Morocco, New Zealand, to the south Korea and Singapore, making a total of 11 catching parties.Since ACTA is an inter field of contain agreement that borders only the contracting parties, it is a method of creation of a new inter discipline integrity. According to the EU Commission ACTA will help countries work together to tackle more effectively Intellectual Property Rights (IPRs) infringements . So the entertain of the EU to sign this agreement resides in the concern of remaining at a relevant sit in the global economy and by this way being able to protect the jobs relate to intellectual property all around the European Union.The Agreement is divided in Chapter I for Initial provisions and general definitions Chapter II for the Legal mannequin of enforcement of Intellectual Property Rights (and subdivided in Section 1 normal Obligations with Respect to Enforcement, Section 2 Civil Enforcement, Section 3 Borde r Measures, Section 4 culpable Enforcement and Section 5 Enforcement of Intellectual Property Rights in the Digital Environment) Chapter III for Enforcement practices Chapter IV for interthemeist cooperation Chapter V for Institutional arrangements and Chapter VI for Final Provisions.II. HOW IS ACTA BEEN NEGOTIATEDDuring the whole process of negotiation of ACTA, much criticism has arisen due(p) to the privation of transparency and the executable violation of thorough rights. The potential infringements of thoroughgoing rights will be discussed at a further moment and instanter we will see how the whole agreement was persistent. On 23 October 2007 the stake of the Unites States Trade Representatives released an announcement about a new initiative called ACTA . The objective of this agreement was to address a new international agreement focused oncooperation, best practices, and a strong legal material for Intellectual property rights enforcement. Since then, eleven negotia tion 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 never negotiated under the scope of the WIPO or the WTO. The atom States of the European Union were represented by the European Commission and the Presidency of the Council.The first consolidated text of ACTA was drafted at the eighth negotiation round in Wellington (New Zealand) in April 2010. On June 2011, the European Commission asked a proposal for a Council Decision on the conclusion of ACTA , and in December 2011 the final version of the Agreement was adopted nemine contradicente by the Council and signed by the European Commission and 22 particle States on 26 January 2012 (Germ either, Cyprus, Estonia, the Netherlands and Slovakia have not signed it yet). In order to be part of EU rectitude the Agreement must(prenominal) be ratified by the EU, which intends approval by the European Parliament under the procedure for international commercial agreements described in member 218(6) TFEU and substantiation by Member States under their national procedures.K right offing that there is a need of a vote at the European Parliament, the society has expressed its concerns about ACTA by mobilizations all over Europe thanks to the effort of close to NGOs and Internet movements, and even declarations of some MEPs . This made Commissioner Karel De Gucht, under the procedure foreseen at Art. 218(11) TFEU, to decide to refer the Agreement to the mash of Justice 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 Is the Anti-Counterfeiting Trade Agreement (ACTA) compatible with the European Treaties, in particular with the Charter of thorough Rights of the European Union?. It is k instantlyn that rulings from the ECJ take time, but until the opinion is made, the European Parliament decided to proceed its vote until the ECJ had made any conclusion .However, it decided that it will continue to supervise the Agreement. The next logical step would had been to make another referral to the ECJ by the European Parliament, but on 28 March, this Institution decided to reject a referral to the move of Justice because there was no need to do so, because the file will anyway go to the court according to intentions announced by the European Commission. It was surprising how the EU Digital Agenda CommissionerNeelie Kroes suggested at a conference on internet license in Berlin on 4 May 2012 that ACTA was probably not going to be ratified since she utter that We are now likely to be in a world without SOPA and without ACTA. Now we need to find solutions to make the Internet a place of dispense withdom, openness, and innovation couple for all citizens, not just for the techno avant-garde. This does not mean that the Agreement will be immediately rejected, there is a need to hold a vote at the European Parliament in order to do so.The final vote on ACTA has been plan for the 3-5 July 2012 , but before ACTA goes to vote before the European Parliament, several EP committees will be giving their opinions on the 31 May 2012, namely the Legal Af moderatelys commission (JURI), the Industry delegation (ITRE) and the Civil Liberties Committee (LIBE). Once these committees have drafted an opinion, 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.As we have seen, the whole negotiation of ACTA has been of major relevance not only to the public opinion, but similarly for the MEPs and some other Organs of the European Union, like the European Data Protection Supervisor. Remains to be seen what the final decision of the European Parliament would be and this will undoubtedly have consequences in both slipway If ACTA is ratified by t he Parliament, the Agreement will come into force, but if not, it will be pretty much dead if it does not have the support of the European Union. So we gloss over need to wait until the 3-5 July 2012 to see how it will all end and the next weeks are going to be of extremely importance because the ratification process is not over yet, meaning that the issue is really topical.C.THE DIFFERENT LEVELS OF PROTECTION OF FUNDAMENTAL rightfieldS IN EUROPEIn this section I will explain the relationship between the different catalogs of fundamental rights that concern this seminar paper, namely the German elementary rectitude, the recipe for the Protection of Human Rights and primitive Freedoms (European Convention on Human Rights or ECHR) and the Charter of Fundamental Rights of the European Union (Charter). It is obvious that this classification fanny rustle questions to EU citizens when they seekthe rampart of their fundamental rights, since they exist up to four catalogues the nati onal constitutions, the ECHR, the case fairness of the ECJ and the Charter .I.THE DEVELOPMENT OF FUNDAMENTAL decentlyS THROUGH THE ECJ AND THE ECtHRAt one first moment the ECJ stated it had no jurisdiction to ensure compliance with national uprightness, which did acknowledge a catalog of fundamental rights within the national Constitutions. This first stage was changed after the Stauder decision of 12 November 1969 that said that fundamental rights are part of the general prescripts of federation natural right , and the CJEU has the task to protect them, but it didnt introduce which rights were those Interpreted in this way the provision at issue contains nothing capable of prejudicing the Fundamental Human Rights enshrined in the general precepts of conjunction Law and protected by the motor hotel. The next step on the case police of the ECJ was the Internationale Handelsgesellschaft archetype of 17 December 1970. Here the motor hotel confirms the existence of general principles for the protection of fundamental rights within the participation Law inspired by the constitutional traditions common to the Member States in fact, respect for fundamental rights forms an organic part of the general principles of uprightness protected by the hook of Justice.The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structure and objectives of the partnership. But the ECJ verbalize that Community law could not be judged against national law, even constitutions the validity of a Community instrument or its effect within a Member State cannot be affected by allegations that it strikes at either the fundamental rights as formulated in that States constitution or the principles of a national constitutional structure. By this way, the Court had to analyze the situation under the national law of the Member States when it was go about with a situation with no legal or in fitting response. Four years later, the Nold judgment of 14 May 1974 made a reference to international treaties as elements of inspiration for the definition of a scope of fundamental rights, but to a fault the ECJ stated that it cannot go in a different direction to the one established in the constitutional laws of the Member States.By doingso, the rights recognized in the different legal orders where the limit to the action of the ECJ In safeguarding these rights, the Court is bound to bewilder inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States. Similarly, International Treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community Law. As the judgment states, t he ECJ refers namely to the Convention for the Protection on Human Rights and Fundamental Freedoms of 1950 (ECHR), becoming this latter treaty the maximum standard for the protection of fundamental rights. Nevertheless it must be said that the constitutional traditions of the Member States as reference point of inspiration does not mean that the rights within can be invoked in ECJ.The final step was made in the Hauer judgment of 13 December 1979, when the ECJ stated that 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 Court 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 unacceptable in the Community and that, similarly international treaties for the protection of human rights on which the Member States have collab orated 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 Court ensures, the ECJ has accomplished two things To incorporate a central feature of modern constitutions into the corpus of EC law and to help strengthen the empowerment of EC law against potential challenges before national courts in the name of domestic constitutional rights .The next step in cooperation between Community law and the ECHR was apt(p) in the cases of Matthews and Bosphorus . In Matthews was decided that Member States can be held responsible if EC primary law go against 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 problem at issuewas whether an EU Member State could be responsible under t he 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, but 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 equivalent protection to the ECJ, meaning that State action taken in compliance with such legal obligations is justify as long as the relevant organization is considered to protect fundamental rights, as regards both the substantive guarantees offered and the mechanisms commanding their observance, in a manner which can be considered at least equivalent to that for which the Convention renders .The Court continues If such equivalent protection is considered to be provided by the organization, the presumption 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 rely its fundamental rights jurisdiction on a whiz catalog of European law .But what is the relationship between the rights in the Charter and the ones in the ECHR? Article 52(3) of the Charter explains it Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. The reason for such provision is to avoid a lower standard of protection than the one of the ECHR. in that respectfore, a restriction of a fundamental right can only be acceptable under the terms of the ECHR and it prevents possible confusion 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 amount of fundamental rights .II.THE RELATIONSHIP BETWEEN THE GERMAN FEDERAL integral COURT AND THE EUROPEAN COMMUNITIES / THE EUROPEAN UNIONThe main problem at stake was that two different levels of protection were created. One circle 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 Constitutional Court solve this problem? In the Solange I -decision, the German court stated that in case of conflict between the Community law and fundamental rights protected in the German basic Law, the latter would prevail 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 Constitutional 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 substantially 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 Constitutional Court to examine the compliance of Community law with the German law.But in 1993, the German Constitutional Court seemed to go back to the previous philosophy of the Solange I-judgment in its celebrated Maastricht decision , where it s tated that from that moment it wanted to apply 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 protecting the fundamental rights enshrined in the elemental Law, so for this purpose it extends the meaning of public power and declares that no matter what gentle of power (German Government or the European Communities) violates fundamental rights enshrined in the Basic Law because it will evermore have the jurisdiction. By doing so, the former Communities were supervised by the German Federal Court every time their activity fell under the scope of application of the Basic Law. Seven years later, in June 2000, the Court changed its mind again at the Bananenmarketordnung judgment. It explained that the previous doctrine was a misunderstanding.The German Constitutional Court will reviewpossible violations of fundamental rights only if the Euro pean Communities fail to do so. But this cannot be justified by a single case, but by a serious deficiency at european level . This means that while the ECJ continues to effectively protect fundamental rights, there will be no German take care 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 triumph of Community law concerning the protection of human rights, but this supremacy has finally been recognized as a prerequisite for Germany to participate in the European Integration movement .III.THE RELATIONSHIP BETWEEN THE GERMAN FEDERAL CONSTITUTIONAL COURT AND THE EUROPEAN CONVENTION ON compassionate RIGHTSThe European Convention on Human Rights (ECHR) contains a catalogue of fundamental rights which the Federal Republic of Germany is bound to guarantee as well, since it ratified the convention on 3 September 1953. The basic 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 interpretation to the ones guaranteed in the ECHR. In fact, Articles 1 to 9 from the Basic Law take on resemblance to the ones in the ECHR . In addition, the Constitutional Court elaborated the concept of Vlkerrechtsfreundlichkeit of the Basic Law , which means that Germanys 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 interpreting the Basic Law, the development of the ECHR needfully to be taken into account without, of course, restricting the protection provided in the Basic Law. It seems that this doctrine would not lead to a confrontation between the German Federal Constitutional Court and the European Court for Human Rights (ECtHR), but this was not the case in the Grgl judgments.It is peculiar how the German Court does not confirm that a judgme nt of the Strasbourg Court should be simply achieved, but sort of says that the authorities and courts of the Federal Republic of Germany are obliged, under legitimate condition, to take account of the European Convention on Human Rights as interpreted by the ECtHR in making their decisions. . By saying pickings account and not, for standard, complywith the Court declares that under some circumstances it can decide not to execute a judgment of the ECtHR. The only requisite is that the equal court under the German legislation needs to give reasons why this doctrine can be applied . In fact, the German judgment states If the ECtHR establishes that there has been a violation of the Convention, and if this is a continuing violation, the decision of the ECtHR must be taken into account in the domestic sphere, that is the responsible authorities or courts must discernibly consider the decision and, if necessary, justify understandably why they nevertheless do not follow the interna tional-law interpretation of the law.The main reason for this was that it could be eventually possible that under the view of the ECtHR a situation could be interpreted widely 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, that when, in opinion of the German Court, through a constitutional complaint . The Federal Constitutional Court thinks of itself as the Guardian of the due to respect of ECtHRs decisions . Although this new doctrine means a remarkable change in the case law of the German Court it does not affect the content of the fundamental rights within both catalogues. It is true that now the German Court could be a kind of call by 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 interpr etation of those rights.IV.IS THERE A TRUE MULTI-LEVEL OF PROTECTION OF FUNDAMENTAL RIGHTS IN EUROPE?It 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 minimum 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 itdoes 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.D.ACTA AND FUNDAMENTAL RIGHTSACTA have undeniable personalisedized effects on fun damental 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 freedom of sort and breeding (Art. 5(1) BL Art. 10(1) ECHR Art. 11(1) Charter) -The right to seclusion and data protection (Art. 10(1) BL Art. 8(1) ECHR Art. 7 and 8(1) Charter) -The right to a fair mental testing (Art. 103(1) BL Art. 6 ECHR Art. 47 Charter) We will also discuss about the fundamental principles that ACTA seems to guarantee.I.THE RIGHT TO FREEDOM OF EXPRESSION AND INFORMATIONArt. 10(1) ECHR guarantees the right to freedom of expression and information, but also the right to freedom to hold opinions and to receive and impart information without interference of public authorities . The German Basic Law must consider the ECHR as source of interpretation when applying its Art. 5(1) BL. Moreover, ECJ has considered the right to freedom of expression and information as one of th e general principles of European law which is enshrined now in Art. 11(1) Charter. It is impossible to deny the importance that today has the Internet when talking about freedom of expression and information online newspapers, video channels, bloggers, webmasters, tweeters, etc. The ECtHR has many times stated that freedom of expression is the founding of a democratic society The Courts supervisory functions oblige it to pay the utmost tutelage to the principles characterising a democratic society.Freedom of expression constitutes 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 Expression has declared that access to the Internet and the freedom to seek, receive and impart information and ideas over the Internet is an inherent part of the freedomof 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 twist offences23(1) Each fellowship shall provide for criminal procedures and penalties to be applied at least in cases of untoward trademark counterfeiting or copyright or related rights piracy on a commercial shell Fn. For the purposes of this Section, acts carried out on a commercial scale entangle at least those carried out as commercial activities for direct or indirect economic or commercial advantage. Article 23(1) ACTA implies the criminalisation of current acts carried out in the digital environment, but it does not define in a clear way what kinds of acts could be considered as criminal offences. We should ask whether private file sharing match the nature of those acts. In opinion of the EDPS , the article makes no reference to criminal offences recognised in the law of the contra cting parties, so he deduces that the provision refers to a new category of offences which Art. 23(1) ACTA fails to provide with a clear definition to get hold of the legal certainty required.Another worrying provision from Art. 23(1) ACTA are the notions of commercial scale and direct or indirect economic or commercial advantages which are also not delimitate at all. The EDPS thinks that the interpretation of those words can be very broad and include acts carried out by individual in the Internet that could be innocent and/or trivial . Since there is no list again of what acts could be done at a commercial scale this is not sufficient to see whether that notion would fit under the definition that the European Union gives to commercial scale, which excludes those acts carried out by private users for personal 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 criminali se innocent and trivial Internet data exchange, which its main purpose is not to violate IP rights, but the possibility to express, be informed, hold opinions and to receive and impart information which are essential for a democratic society.One of the reasons of why ACTA was so much criticized in the beginning was due to the so unpopular ISP obligationand the three strikes rule. This was originally intended by the drafters of the Agreement which did not enjoy the public opinion when a probationary version of the agreement was leaked . As the European Parliament study on ACTA on July 2011 reveals, there were extensive provisions relating liability of online service providers, including restricted safe harbours squelch or removal of material at the request of right carriers and third party secondary, and contributory liability. In antecedent proposals put forward by other parties, provisions for the cutting-off of internet service of infringers (so-called three strikes provision s) were also put forward, although these did not appear in later texts.In 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 available under its law so as to suffer effective action against an act of infringement of intellectual property rights which takes place in the digital environment, including officious remedies to prevent infringement and remedies which constitute a deterrent to further infringements. Art. 27(2) Further to paragraph 1, each Partys enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread diffusion for infringing purposes.These procedures shall be implemented in a manner that avoids the creation of barriers to le gitimate activity, including electronic commerce, and, consistent with that Partys law, preserves fundamental principles such as freedom of expression, fair process, and privacy. fn Footnote For instance, without disadvantage to a Partys 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 legitimate interests of right holder.There is the opinion that the initial idea of the drafters of ACTA still remains 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 alleged IP rights violations and therefore deprive themof their right to freedom of expression and informati on.II.THE RIGHT TO PRIVACY AND DATA PROTECTIONArt. 8(1) ECHR guarantees also the confidentiality of individual communications, that is why private life and correspondence 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 foils of communications . Both 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 processing of personal data, each Party shall provide that, in civil discriminatory proceedings concerning the enforcement of intellectual property rights, its judicial authorities, at least for the purpose of collecting evidence, relevant information as pr ovided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. much(prenominal) information may include information regarding any person involved in any smell 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 identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution.Art. 27(4) A Party may provide, in accordance 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 call a subscriber 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 legitimate activity, including electronic commerce, and, consistent with that Partys law, preserves fundamental principles such as freedom of expression, fair process, andprivacy. Under Art. 11 extensive disclosure orders are allowed . This covers infringers, alleged infringers and any person involved in any aspect of the infringements or alleged infringement, they also include the identification of third persons alleged to be involved.In addition, Art. 27(4) allow data disclosures for the purpose 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 Directive 95/46/EC any information relating to an identified or identifiable natural person (data subject) an identifiable pers on is one who can be identified, without delay 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 detection and saloon of possible IP rights infringements, the wording makes it clear that Internet users will not be warned while they are being monitorised, even if they are not suspicious for having infringed some sort of IP rights.Moreover, 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.III.THE RIGHT TO A FAIR TRIALThe right to a fair trial is a general principle of law of the European Union common to the Member States and which the Federal Republic of Germany is bound by it , which is now embodied in Art. 47(2) Charter. Also Art. 6 EMRK protects the right of a fair trial and since the Vlkerrechtsfreundlichkeit doctrine Art. 103(1) BL gives meaning to it. Art. 12 ACTA contains the provisional 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 afair trial Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstra ble luck of evidence being destroyed. In proceedings conducted inaudita altera parte, each Party shall provide its judicial 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.This is against the principle of equality of arms 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 equality of arms. But ACTA do not seem to provide this. It does not filter that provisional measures and proceeding inaudita altera parta should be the exception and this could lead to two possible consequences. First, when p rotecting 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 competent authorities the article refers to. In opinion of the EDPS the perplexing concept does not provide with the sufficient legal certainty of whether the disclosure of information would be taken place by judicial authorities.He believes that such concept could also include administrative bodies that are not embodied with the sufficient 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 enable to private parties to adopt functions that belong to judicial authorities and it seems as if there is a privatisation of IP rights law . Art. 27(3) enable the business community to address IP infringements Each Party shall endeavour to win cooperative efforts within the bus iness community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Partys law, preserving fundamental principles such as freedom of expression, fair process, and privacy.Right holders cannot judgewhether 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 suitable specific safeguards are provided under national law. Moreover, the UN Special Rapporteur on Freedom of Expression has stated that Lack of transparency in the intermediaries decision making process also often obscures discriminatory practices or political pressure affecting the companies decisions and To avoid infringing the right to freedom of expression and the right to privacy of Internet users, the Special Rapport eur recommends intermediaries to only implement restrictions to these rights after judicial intervention . If ACTA does not make any effort to offer any guarantee to the right to a fair trial and even aims to provide the 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.IV.THE FUNDAMENTAL PRINCIPLESThe digital chapter, namely Arts. 27(2), 27(3) and 27(4) refers to the need to preserve 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 fundamental rights instead of fundamental principles, since freedom of expression and privacy are not principles, but fundamental rights. Also, the negotiators chose to avoid referring to the right to a fair trial or to the r ight to due process, instead they referred to the term fair process, which, as confirmed by the European Commission , that is not a fundamental principle of international law.To make a comparison, the EDPS gives an example of the necessary safeguards that must be always included and must always be 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 in good order ensurefundamental rights in the way they do the different European catalogues.D.CONCLUSIONSIt is true that IP rights must be protected and since we live in a digital era, that task has become more ticklish due to a more globalized world. But the protection of IP rights must not be given precedence over fundamental rights. ACTA have failed to respect the fundamental rights within the Basic Law, the European Conven tion 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 explicit de minimis rules that could make the provisions of ACTA proportionate so they do not hinder fundamental rights. IP rights are not above fundamental rights.This is something that the ECJ stated twice in the Telefnica/Promusicae and Scarlet/Sabam cases. Namely, in the latter said that a a fair balance 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).Meanwhile, the European Court of Ju stice 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 incompatibility of ACTA with this catalogue of rights. If we want to enforce the legitimate IP rights that rightholders have we need to stop criminalising trivial and private use of data in the Internet, we need to stop thinking 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.