Assessment of the case in relation to the ex ante review of fundamental rights

From an institutional angle, too, the ACTA is a very interesting case. This is because traditionally common commercial policy has been the Commission’s playground belonging to the EU exclusive competence. In the new constitutional framework, however, the consent of the EP is required in the international agreements – this is a change introduced in the EU primary law mainly because of the need to increase democratic accountability. We can now see that the EP has also used this right and what makes this case extremely interesting is that in the case of ACTA it happened because of fundamental rights reasons. This can be seen as a challenge to the Commission’s role in this field but it is even more important to see in this case the strengthened role of the EP in ex ante review of fundamental rights and its readiness to use the all the necessary legal tools to ensure compliance with the EUCFR. This is a proof of the increasingly high profile of the EP in ex ante review.

Another conclusion to be drawn from the role of the EP is the key importance of the LIBE committee. In handling of the ACTA, we can see seeds of LIBE turning into a real parliamentary ex ante review body of fundamental rights. We may well see even further development in this because it is the LIBE that very often deals with fundamental rights sensitive dossiers. The bold position of the LIBE in ACTA should also be seen as a commitment to effectively safeguarding the rights and freedoms enshrined in the EUCFR.

In light of the ACTA it is justifiable to talk about the EP and particularly its LIBE committee as an emerging ex ante review institution that undertakes to assess the compliance of legal instruments with the EUCFR. The EP is clearly ready to use its new constitutional rights, also when it comes to fundamental

751 Ibid., paragraph 34, p. 21.

752 Recommendation, p. 7.

753 Ibid., p. 5.

rights in international agreements. Additionally, as we have seen in other case studies, the EP seems to be especially willing to take onboard fundamental rights considerations of other key players, such as the FRA and the EDPS. The same is true in this case with the EDPS, but in the handling of ACTA, the EP also functioned very much in an independent manner and came out with very bold and groundbreaking conclusions. Seen from an internal angle, the Committee structure of the EP actually took a much bolder position on ACTA than its Legal Service.

Can the true colours of the EP be seen in this file with regard to the ex ante review? Critics of the EP approach might say that the EP position on ACTA was value-laden and political. One may also hear criticism towards the timing of the EP final position on ACTA. Why did the EP not wait for the CJEU view on this highly controversial agreement? I cannot subscribe to this point of view. First, the analysis of the EP was legally very sound and arguments put forward in it were solid. Second, with its new competence, the EP should be considered to be a major interlocutor in fundamental rights issues and an important actor exercising ex ante review of fundamental rights against the background of the EUCFR. The EP should not be seen as usurper of politico-legal power hi-jacking legislative dossiers with the means of fundamental rights.⁷⁵⁴ On the contrary, this should be seen positively as taking fundamental rights seriously in the preparatory phase in sector specific legal instruments.

The way forward for Bellamy seems to be the system of procedural democratic checks and controls. These procedures underscore the importance of openness in decision-making and within such a system it is justice that designates a modus vivendi achieved through a balance of power between interlocking institutions, rather than an overlapping consensus on core constitutional values that may be upheld by a court of putative moral experts.⁷⁵⁵ Concerning the question of democracy, it is equally important to try to democratise EU legal and judicial discourses.⁷⁵⁶ The experience from ACTA can be seen as a sign of democratisation of the EU and its legislative processes, which in this case has taken place through the EP.

In this case, "softer" fundamental rights prevailed over economically-oriented fundamental rights — in this sense it can be seen as a continuum to Schmidberger. Proportionality was again clearly one of the key concerns. The limitation criteria were effectively applied by the EP, which took a strict and appropriate view with regard to fundamental rights and their relation to

754 Laurent Dutoit hits the bulls-eye when remarking about the EP that “en effet, la croissance, de manière coutumière, de ses pouvoirs est une caractèristique de son développement. D’un autre côté, on s’aperÇoit rapidement de la difficulté de sa position dans l’equilibre institutionnel”. Dutoit Laurent:

Parlement Européen et société civile. Vers de nouveaux aménagements institutionnels. Bruylant-Academia s.a. Louvain-la-Neuve 2009, p. 99.

755 Bellamy Richard: The Constitution of Europe: Rights or Democracy? In Bellamy Richard, Bufacchi Victorio and Castiglione Dario (Eds.) Democracy and Constitutional Culture in the Union of Europe. Lothian Foundation Press. London 1995. p. 166.

756 Maduro Miguel Poiares: Contrapunctual law: Europe’s Constitutional Pluralism in Action. In Walker Neil (ed.): Sovereignty in Transition. Hart Publishing. Oxford and Portland, Oregon 2003, p.

518.

Article 52(1) of the Charter. One cannot overdo the importance of the EP applying the test of permissible limitations based mainly on the "limitation Article" of the Charter. This demonstrated sound legal argumentation in the background of political deliberations. There is no denying, either, that the political pressure to do this was high but the EP acted in conformity with fundamental rights and was able to bring proportionality sharply to the discussion.

ACTA belongs to the series of cases which would have been considered in terms of substance to be in breach with the EUCFR by the CJEU if not rejected by the EP. This case also illustrates the holistic nature and power of ex ante review conducted by many EU actors with an impact also on international agreements and thus on external relations. Therefore, ACTA can be regarded as a proof of the strength of pluralist ex ante review in European constitutionalism. It is interesting that in this case it also has implications on the outside world and not only the EU. In this case, it goes hand in hand with the increased competence of the EP in external relations.