ACTA was negotiated in secret by the governments of a collection of countries over the past three years. The treaty has been criticised as being too favourable to rights holders at the expense of the users of goods or services.
An opinion (8-page / 92KB PDF)signed by 27 law academics from Germany, Spain, the UK, Holland and Australia claims that ACTA goes too far in strengthening rights holders' hand and that parts of it break EU and international law.
EU bodies must not adopt the treaty until it changes to contain the same protections and safeguards as EU law, the academics said.
"Contrary to the European Commission's repeated statements and the European Parliament's resolution of 24 November 2010, certain ACTA provisions are not entirely compatible with EU law and will directly or indirectly require additional action on the EU level," said the opinion.
"As long as significant deviations from the [EU law] or serious concerns on fundamental rights, data protection, and a fair balance of interests are not properly addressed [European institutions should] withhold consent," it said.
The researchers and professors said that ACTA's provisions were different from those in EU law when it came to injunctions, damages and other remedies for intellectual property law infringements.
ACTA contains measures dealing with criminal enforcement. "Within the EU legal framework there are currently no provisions on criminal enforcement of intellectual property rights. ACTA, therefore, is by nature outside the EU law and would require additional legislation on the EU level," said the opinion.
The opinion expresses worries about the fact that some safeguards, such as those for private, non-commercial users, that are present in EU law are missing from ACTA. It also expresses concern that some of ACTA's language is too vague to be useful, such as the way it deals with parallel imports.
"The vague language of the article could seem to cover importation and domestic use of products which, although lawfully marketed in the exporting country, have not been authorized in the importing country," it said. "Such interpretation would hinder parallel imports in the EU. The [European Parliament has said] that parallel imports should be specifically excluded from the scope of criminal offences. Such exclusion is not reflected in ACTA."
Many of the academics' views in relation to EU law are mirrored in relation to international legal agreements that relate to intellectual property, such as the World Trade Organisation's TRIPS (Trade Related aspects of Intellectual Property Rights).
As recognized and welcomed by both the European Commission and the European Parliament, ACTA introduces enforcement standards higher than those existing under current international law," said the opinion. "However, certain ACTA provisions do not ensure a balance between the interests of different parties, since they either eliminate safeguards existing under international law or, after strengthening enforcement measures, fail to introduce corresponding safeguarding measures."
The European Commission has not yet accepted the ACTA text. If it does, it will then be considered by other EU governing bodies including the Council of Ministers and the European Parliament.
The Parliament adopted a resolution in November that called ACTA a "step in the right direction".
Its resolution did call on the European Commission, though, to make sure that ACTA was in line with existing EU law.
"[The Parliament] calls on the Commission to confirm that ACTA’s implementation will have no impact on fundamental rights and data protection, on the ongoing EU efforts to harmonise IPR enforcement measures, or on e-commerce," it said.
