European Convention on Human Rights Essay

A.INTRODUCTIONWe function in the digital Age and in a fully globalized world in which nether(a)standing property ripes (IP compensates) ar no giganticer configured in the uniform office they did before. That is why the Anti-Counterfeiting Trade conformity was de sign in arrangement to respond to impertinently technological and merciful ch eithithernges. exclusively when ACTA was revealed to the public tenet an intense debate emerged from the first moment and almost immediately tourist courtly and meshing organizations totally opposed to the content of ACTA alleging that the agreement was a somber violation of rudimentary rights. On the other side, the signatory states, the right be arrs of those IP rights and the European center, defended cerebral Property as an engine of economic growth, job creation and encouragement of innovation and artistic and technological creation.The plan of this seminar wallpaper is to explain which comestible of ACTA hinder in nate rights as enshrined in the contrasting European catalogues of human rights, namely the German basic truth, the European congregation on Human Rights and the film of substantive Rights of the European Union. But the mountain chain of ACTA is much wider, it c all overs topics much(prenominal) as generic wines medicines, innovation and competition, which ar non heading of this paper and on that pointfore they resulting non be analyzed.In purchase order to understand which violations argon perpetrated by ACTA, this paper is divided in quartette set or sos. In the first bingle I leave behind explain what is the bargain and how was negotiated. We leave behind see that is a matter of great topicality since the net select at the European s sluices is about to take place, specifically in a month. Second, I go forth explain how those catalogues of thoroughgoing rights relate to distri plainlyively other. In other row, how a multilevel of security system o f sound rights tinct the guarantees saved by those rights. Third, I will analyse which provisions of ACTA do non respect European thoroughgoing rights. Finally, I will draft copy near conclusions.B.THE ANTI-COUNTERFEITING TRADE AGREEMENTI.WHAT IS ACTAThe Anti-Counterfeiting Trade earth (ACTA) is a many-lobed agreementwhich its main verifiable is to establish a harmonized modular for the enforcement of quick property rights in order to combat the violation of saved rights all around the world. In order to fulfill this task, the agreement contains provisions on inter field cooperation betwixt relegates and the coordination of truthfulness enforcement, especially the introduction of urbane and criminal sanctions for intellectual property irreverences , such as counterfeit goods, generic medicaments and right of first publication assaults on the mesh. The countries complicated in the obligation be the get together democracys, Japan, Canada, the European Union (w ith its 27 ingredient States), Switzerland, Australia, Mexico, Morocco, New Zealand, South Korea and Singapore, qualification a total of 11 contracting parties.Since ACTA is an inter content agreement that boundary completely the contracting parties, it is a method of creation of a new(a) inter subject field rectitude. According to the EU centering ACTA will help countries spirt together to tackle more effectively Intellectual Property Rights (IPRs) infringements . So the interest of the EU to sign this agreement resides in the concern of rest at a pertinent position in the global delivery and by this way being able to protect the jobs cogitate to intellectual property all around the European Union.The obligation is divided in Chapter I for Initial provisions and global comments Chapter II for the Legal fashion model of enforcement of Intellectual Property Rights (and subdivided in persona 1 General Obligations with applaud to Enforcement, Section 2 Civil Enforceme nt, Section 3 Border Measures, Section 4 Criminal Enforcement and Section 5 Enforcement of Intellectual Property Rights in the Digital Environment) Chapter III for Enforcement practices Chapter IV for Inter depicted object cooperation Chapter V for inventional arrangements and Chapter VI for Final Provisions.II. HOW IS ACTA BEEN NEGOTIATEDDuring the whole surgical procedure of negotiation of ACTA, much criticism has arisen referable to the lack of transparency and the possible violation of unplumbed rights. The potential infringements of underlying rights will be discussed at a upgrade moment and today we will see how the whole agreement was refractory. On 23 October 2007 the duty 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 inter bailiwick agreement think oncooperation, best practices, and a strong good framework for Intellectual property rights enforcement. S ince then, eleven negotiation rounds took place between June 2008 and October 2010. But what it was extraordinary(predicate) is the fact that this new agreement on intellectual property rights was never negotiated under the field of the WIPO or the WTO. The part States of the European Union were delineated 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 finale on the conclusion of ACTA , and in celestial latitude 2011 the final version of the pact was tangleed unanimously by the Council and signed by the European Commission and 22 Member States on 26 January 2012 (Germany, Cyprus, Estonia, the Netherlands and Slovakia take non signed it yet). In order to be part of EU law the Agreement essential(prenominal) be ratified by the EU, which agency approval by the European f antan under the procedure for international moneymaking(prenominal) agreements exposit in obligate 218(6) TFEU and ratification by Member States under their national procedures.Kat onceing that there is a need of a vote at the European parliament, the party has expressed its concerns about ACTA by mobilizations all over Europe thanks to the effort of somewhat NGOs and Internet movements, and even declarations of some MEPs . This made Commissioner Karel De Gucht, under the procedure foreknown at Art. 218(11) TFEU, to decide to refer the Agreement to the Court 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 organic Rights of the European Union?. It is known that rulings from the ECJ take time, just until the faith is made, the European fan tan decided to uphold its vote until the ECJ had made any conclusion .However, it decided that it will continue to supervise the Agreement. The succeeding(prenominal) logical step would had been to found a nonher referral to the ECJ by the European Parliament, precisely on 28 March, this Institution decided to reject a referral to the Court of Justice be designer 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 exemption in Berlin on 4 may 2012 that ACTA was probably non going to be ratified since she verbalize that We are now probable to be in a world without SOPA and without ACTA. Now we need to demote solutions to make the Internet a place of liberty, openness, and innovation fit for all citizens, non just for the techno avant-garde. This does not mean that the Agreement will be immediately r ejected, there is a need to hold a vote at the European Parliament in order to do so.The final vote on ACTA has been scheduled for the 3-5 July 2012 , but before ACTA goes to vote before the European Parliament, several EP military commissions will be giving their credits on the 31 May 2012, namely the Legal Af exquisites Committee (JURI), the industry Committee (ITRE) and the Civil Liberties Committee (LIBE). Once these committees defy drafted an public 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 in like panache for the MEPs and some other Organs of the European Union, like the European info protective cover Supervisor. Remains to be seen what the final finality of the European Pa rliament would be and this will undoubtedly have consequences in both ways If ACTA is ratified by the Parliament, the Agreement will come into force, but if not, it will be pretty much dead if it does not have the defy of the European Union. So we cool it 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 comeback is really topical.C.THE DIFFERENT LEVELS OF guard OF FUNDAMENTAL RIGHTS IN EUROPEIn this section I will explain the relationship between the contrasting catalogs of thoroughgoing rights that concern this seminar paper, namely the German elementary constabulary, the convention for the Protection of Human Rights and first harmonic Freedoms (European crowd on Human Rights or ECHR) and the Charter of Fundamental Rights of the European Union (Charter). It is obvious that this classification fundament leaven questions to EU ci tizens when they seekthe trade shelter of their fundamental rights, since they exist up to tetrad catalogues the national constitutions, the ECHR, the slip of paper law of the ECJ and the Charter .I.THE DEVELOPMENT OF FUNDAMENTAL RIGHTS by THE ECJ AND THE ECtHRAt one first moment the ECJ declared it had no sub judice power to ensure deference with national law, which did take a catalog of fundamental rights inside the national Constitutions. This first stage was changed by and by on the Stauder decision of 12 November 1969 that said that fundamental rights are part of the general principles of fraternity Law , and the CJEU has the task to protect them, but it didnt say 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 principles of Community Law and defend by the Court. The next step on the case law of the ECJ was the Internationale Handelsgesellschaft jud ging of 17 December 1970. Here the Court confirms the existence of general principles for the fortress of fundamental rights within the Community Law inspired by the constitutive(a) traditions parkland to the Member States in fact, respect for fundamental rights forms an integral part of the general principles of law protect by the Court of Justice.The shelter of such rights, whilst inspired by the constitutional traditions joint to the Member States, mustiness be ensured within the framework of the structure and objectives of the Community. But the ECJ verbalize that Community law could not be resolved against national law, even constitutions the validity of a Community instrument or its effect within a Member State targetnot 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 l aw of the Member States when it was faced with a situation with no well-grounded or insufficient response. Four historic period later, the Nold sound judgement of 14 May 1974 made a fiber to international treaties as elements of ambition for the description of a scope of fundamental rights, but in addition the ECJ stated that it female genitalsnot go in a several(predicate) 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 cumber to the fill of the ECJ In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it stubnot therefore uphold measures which are clashing 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 signatorie s, can try guidelines which should be borrowed within the framework of Community Law. As the judgment states, the ECJ refers namely to the convening for the Protection on Human Rights and Fundamental Freedoms of 1950 (ECHR), adequate this latter treaty the maximum standard for the protection of fundamental rights. however it must be said that the constitutional traditions of the Member States as witness 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 Lords Supper 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, s imilarly 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. 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 dickens things To incorporate a key feature of modern constitutions into the corpus of EC law and to help fort the authority 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 given in the cases of Matthews and Bosphorus . In Matthews was decided that Member States can be held responsible if EC primary law violate 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 the ECHR for an execution of a Community Regulation. As stated in Matthews, Member States are responsible for acts and omissions of its organs careless(predicate) whether the competencies are national or at supranational level, but the variation was that in this case, the Member State was obliged by a Regulation, which gives no discretion when implementing it. In order to use of goods and services this situation, the ECtHR gave a status of tantamount(predicate) protection to the ECJ, meaning that State legal action taken in compliance with such legal obligations is justified as long as the relevant organization is regarded to protect fundamental rights, as regards both the substantive guarantees protracted and the mechanisms imperious their observance, in a manner which can be considered at least(prenominal) aforementioned(prenominal) to that for which the Convention domiciliate s .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 flow rate from its membership of the organization . Since that level of protection was indeed guaranteed by causation 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 single catalog of European law .But what is the relationship between the rights in the Charter and the ones in the ECHR? condition 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 H uman 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. Therefore, a restriction of a fundamental right can only be acceptable under the terms of the ECHR and it prevents possible bewilderment 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 list of fundamental rights .II.THE RELATIONSHIP BETWEEN THE GERMAN FEDERAL organic 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 national constitutive(a) 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 later(prenominal) how the ECJ ruled, namely after Nold and Hauer, the German implicit in(p) 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 indwelling 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 doctrine of the Solange I-judgment in its famous Maastricht decision , where it stated that from that moment it requisiteed 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 Basic Law, so for this purpose it extends the meaning of public power and declares that no matter what kindhearted of power (German Government or the European Communities) violates fundamental rights enshrined in the Basic Law because it will always have the jurisdiction. By doing so, the former Communities were supervise by the German Federal Court every time their performance 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 critiquepossible violations of fundamental rights only if the European Communities fail to do so. But this cannot be justified by a single case, but by a serious deficiency at european level . This doer that while the ECJ continues to effectively protect fundamental rights, there will be no German control of those rights over the European law. We can shut that over the ruling of the German court, this has been a reluctance to recognize the advantage of Community law concerning the protection of human rights, but this supremacy has at last been recognized as a prerequisite for Germany to participate in the European Integration Process .III.THE RELATIONSHIP BETWEEN THE GERMAN FEDERAL inbuilt COURT AND THE EUROPEAN CONVENTION ON HUMAN RIGHTSThe European Convention on Human Rights (ECHR) contains a catalogue of fundamental rights which the Feder al commonwealth 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 bear 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 see 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 unavoidably to be taken into grade 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 Const itutional 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 judgment of the Strasbourg Court should be simply executed, but instead says that the authorities and courts of the Federal Republic of Germany are obliged, under certain condition, to take account of the European Convention on Human Rights as interpreted by the ECtHR in making their decisions. . By saying taking account and not, for example, 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 competent court under the German law needs to give reasons why this doctrine can be utilise . 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 prerequisite, justify understandably why they nevertheless do not follow the international-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, except 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 significant 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 appeal 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 reign that does not affect the interpretation 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 di fferent protection or a different interpretation within the distinct catalogues.D.ACTA AND FUNDAMENTAL RIGHTSACTA have undeniable effects on fundamental 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 behavior and selective development (Art. 5(1) BL Art. 10(1) ECHR Art. 11(1) Charter) -The right to solitude and entropy protection (Art. 10(1) BL Art. 8(1) ECHR Art. 7 and 8(1) Charter) -The right to a fair(a) trial (Art. 103(1) BL Art. 6 ECHR Art. 47 Charter) We will in addition discuss about the fundamental principles that ACTA seems to guarantee.I.THE RIGHT TO emancipation OF EXPRESSION AND INFORMATIONArt. 10(1) ECHR guarantees the right to freedom of expression and information, but besides the right to freedom to hold opinions and to take in and impart information without treatment 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 the 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 impart, bloggers, webmasters, tweeters, etc. The ECtHR has many propagation stated that freedom of expression is the foundation of a elected society The Courts supervisory functions oblige it to pay the utmost assist 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 excess Rapporteur on Freedom of Expression has declared that entryway to the Internet and the freedom to seek, receive and im part 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 criminal offences23(1) to each one political party shall provide for criminal procedures and penalties to be applied at least in cases of self-willed trademark counterfeiting or copyright or related rights piracy on a technical message outmatch Fn. For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage. Article 23(1) ACTA implies the criminalisation of certain acts carried out in the digital environment, but it does not define in a clear way what kinds of acts could be considered a s criminal offences. We should ask whether hidden file sharing match the disposition of those acts. In opinion of the EDPS , the article makes no reference to criminal offences value in the law of the contracting 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 fit the legal certainty required.Another worrying provision from Art. 23(1) ACTA are the persuasions of commercial scale and direct or indirect economic or commercial advantages which are also not defined 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 footling . 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 ain 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 criminalise innocent and deceitful Internet selective information exchange, which its main purpose is not to violate IP rights, but the hypothesis 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 indebtednessand the three strikes rule. This was to begin with think by the drafters of the Agreement which did not please the public opinion when a provisional 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 go providers, including restricted safe harbours takedown or removal of tangible at the request of rightho lders and third party secondary, and contributory liability. In prior(prenominal) proposals put forward by other parties, provisions for the cutting-off of internet service of infringers (so-called three strikes provisions) 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 period set forth in Sections 2 (Civil Enforcement) and 4 (Criminal Enforcement), are obtainable under its law so as to permit effective action against an act of infringement of intellectual property rights which takes place in the digital environment, including expeditious 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 o r related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes.These procedures shall be employ in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, invariable with that Partys law, carry on fundamental principles such as freedom of expression, fair process, and privacy. fn Footnote For instance, without prejudice to a Partys law, adopting or maintaining a regime providing for limitations on the liability of, or on the remedies unattached 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 ar e the first ones to take account. According to this opinion , this would still allow ISPs to disconnect users of say IP rights violations and therefore deprive themof their right to freedom of expression and information.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 delays of communications . both(prenominal) 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 affect of in the flesh(pre dicate) data, each Party shall provide that, in civil juridical proceedings concerning the enforcement of intellectual property rights, its juridic authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding any person involved in any aspect 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 conformation with its laws and regulations, its competent authorities with the authority to order an online service provider to fracture expeditiously to a right holder information s ufficient to station 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, prevents fundamental principles such as freedom of expression, fair process, andprivacy. Under Art. 11 extensive apocalypse 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 p ersonal 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 graphic person (data subject) an identifiable person is one who can be identified, directly 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 prevention 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 monitoring 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 prop ortionate, 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 penetration 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 provi de 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 essential risk 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 mischief against his counter-party . When such a possibility is accepted by a legal system it also provides safeguards to ensure that the defendant can rest ore his equality of arms. But ACTA do not seem to provide this. It does not stress that provisional measures and proceeding inaudita altera parta should be the exception and this could lead to two possible consequences. First, when protecting 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 double 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 whiteness and to a fair trial. It must be also considered that ACTA enable to private parties to adopt functions that be long to judicial authorities and it seems as if there is a privatisation of IP rights law . Art. 27(3) enable the strain community to address IP infringements Each Party shall endeavour to promote cooperative efforts within the business 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 suit of data must be processed in relation to guess 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 p rocess 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 Rapporteur 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 inc lude 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 right 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 properly 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 challenging 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 Convention 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 Justice 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 opinion 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.