Carte Blanche Criminal Law

Wednesday 25 April 2007 the European Parliament will vote on the Criminal Measures IP directive.

Just prior to the Legal Affairs Committee vote the music industry asked to keep "commercial scale" undefined. They claimed it would be better for reasons of subsidiarity (in this case: leave it to the member states).

Since when does the music industry care about subsidiarity? Earlier they had asked for deletion of the commercial scale condition (as an element of the crime). They would love to see not for profit filesharers in prison.

Now for the plenary vote the liberals (ALDE) tabled an amendment leaving "commercial scale" undefined. Some of them may indeed care about subsidiarity. Others, like Manders, would like to see downloaders punished.

Criminal law needs strong definitions (legal certainty, proportionality). But here we see an unholy marriage of subsidiarity and disproportionality - no definitions. There is lots of drama in lawmaking!

If conditions are undefined, can the Member States make their own definitions? Yes they can. But they face a serious risk. Commercial scale comes from the TRIPS treaty (WTO). By referencing the TRIPS treaty, the Community risks their definitions being written by other organisations (WTO, WIPO). And since it's Community law, the European Court of Justice (ECJ) may ultimately decide. It's a King Lear situation: if you don't take control youself, others will do it. The music industry will try to influence the definitions at other fora, outside reach of the European Parliament. And we do not know in which direction the uncertainty will be interpreted by national courts (at first instance, before a possible ruling of the ECJ).

It is the first time the Community can make criminal law. And already they plan to outsource aspects. They are creating Carte Blanche Criminal Law.

We already have the TRIPS treaty that obliges the Member States to take action against copyright piracy and trademark counterfeiting. The Member States have their owns laws as an extra to that. The IPRED directive (the first) contains strong civil measures. Community criminal law is not needed at all, and only creates loopholes - which is the opposite of subsidiarity.

Whoever cares about subsidiarity, cares about proportionality, should not leave concepts undefined, but reject the directive altogether. If that fails, strong definitions are needed. The stronger, the better Europeans are protected, the higher the chance the member states do not have to change their national laws.