With the fervor of the #occupy protests that swept most of the continent over the past months, Europe now finds herself awash in grassroots discontent over the planned ratification and enforcement of the Anti Counterfeiting Trade Agreement (ACTA). Having already been signed by both the European Union and an overwhelming majority of its member states, the document would establish a supranational organization, much like the European Union itself (though of a decidedly larger global scale), dedicated to the enforcement of its tenets. While Europeans are understandably upset about the ramifications of such a treaty on their individual rights, they would do well to examine the very institutions that got them into this predicament, as well as to acknowledge the disproportionate power the EU had in setting this agenda. The treaty in its original form was not at all conceived by the European Union – rather, it was the product of talks between the United States and Japan. As talks progressed, the first European body (read: the first organization from Europe at all) to enter negotiations was the European Commission, seeking a mandate from the European Parliament to negotiate the treaty. Lest any American or otherwise non-European readership confuse the numerous and similarly named organs of the EU, the Commission is what I will call a “secondarily democratic” body. Much like the Supreme Court Justices, the Commission is formed by appointments made by democratically elected leaders, namely the European Parliament (directly elected) and executive heads of the member states (also democratically elected, though the processes vary by national constitution).
Shortly after the Commission sought this mandate, the Council of the European Union, comprised of ministers from member states, publicly showed support for ACTA through a resolution. Since this time, negotiations on behalf of the EU as a whole began, and various member states have signed the agreement, putting us at the present situation.
It is key to keep in mind here that the European Union is primarily an economic partnership. Its very existence came about as the product of several trade agreements, and therefore, it is understandable that its primary focus is of an economic nature. Strictly speaking, ACTA stands to protect intellectual property, which is in the economic interest of capitalistic societies, including the Union at large. When viewed in this light, there can be little confusion as to why the Commission and the Council sought to include themselves in the development of the treaty. Furthermore, as the institution that binds all of its member states, the European Union exercises considerable soft power in its agenda-setting abilities – soft power overwhelmingly found in the hands of two relatively small, secondarily democratic bodies.
If citizens of the European Union – or rather, of the twenty-seven sovereign bodies that make up the Union – are truly upset about the situation, they need to take a hard look at the structure of the Lisbon Treaty and recognize the ensuing drop in their power to make decisions independently of their neighbors. Furthermore, they should seek transparency and accountability in their supranational leaders as well as their national ministers, for the secondary democratic bodies enjoy unprecedented power, hard and soft, over all members. Free speech and human rights are on the line, and it would be ill advised to leave the decision to an economically minded institution.