Marielle Gallo MEP (EPP, France) has published her draft report (only in French for the moment) for the Legal Affairs Committee (JURI) on the Anti-Counterfeiting Trade Agreement (ACTA). As one would expect, she is urging her colleagues to support ACTA. She is also launching the counter-strategy described in an article published on the EDRi website on 5 March.

In that article, we explained the plan of the pro-ACTA faction to create a fake “compromise” where the Commission would be required to undertake to do certain things, in return for the Parliament voting “yes” to ACTA. This is exactly what Ms Gallo is now proposing.

Her suggestion is that the European Commission produce an annual report on the impact of ACTA on fundamental rights. If the Commission identified a breach of citizens' fundamental rights, the European Court of Justice, using powers that we (and probably the Court itself) are unaware of, would then “immediately” require the removal of such measures.

If we ignore the fact that the European Commission would not be bound in any way to undertake such a study and if we ignore the fact that the European Commission frequently ignores legal obligations to prepare implementation reports (the data retention implementation report was published eight months after its legally binding deadline), the proposal is still utterly devoid of credibility. Current practice unequivocally proves the lack of credibility. To give just two examples:

• The Irish “three strikes” system (which is exactly the “voluntary cooperation” described in ACTA) has been shown by the European Court's ruling in the Scarlet/Sabam (C70/10) case to be a breach of citizens' privacy rights. The European Commission has said absolutely nothing on the subject and this unequivocal breach of citizens' fundamental rights continues unchecked.

• In the “dialogue” on illegal uploading and downloading that it organised with the rightsholder and Internet industry in 2009, the European Commission proposed the “voluntary” introduction of measures which were subsequently ruled to be breaches of three different sets of fundamental rights by the European Court of Justice in the Scarlet/Sabam case. It is a simply an absurd suggestion to say that the European Commission would identify and report on breaches of fundamental rights through “voluntary measures” promoted by Member States when it has itself promoted – and continues to promote – measures that would be in clear breach of the rights of citizens.

It remains to be seen how many MEPs will either fall for this and/or seek to sell this as a credible solution.