A spokesman for De Gucht told Managing IP that while the decision to refer a question has been made “in principle”, the question has not yet been formulated.
This is partly because it is possible that other European institutions, such as the European Parliament, will join the Commission in a joint referral.
The spokesperson said that the Commission wanted the question to be finalised as soon as possible, and ideally “within a few weeks”, but added that it is unlikely to happen before the next regular meeting of EU trade ministers, which takes place in mid-March.
The question is likely to focus on whether anything in ACTA contravenes the EU treaties , and in particular the charter of fundamental rights .
Last week the digital rights activists Open Rights Group said that protestors would continue to oppose ACTA despite the referral. The group also criticised the referral process, saying that by drafting the questions itself, the Commission “shows every sign of making sure it gets the answers it wants to try to give ACTA a fig leaf of legitimacy”.
On Tuesday this week a petition against the deal will be handed to the Petitions Committee ahead of a debate in the European Parliament. The petition has 2.5 million signatures.
On Wednesday MEPs on the International Trade Committee will discuss ACTA and on Thursday a public workshop with bloggers and IP specialists will consider issues including ACTA’s potential impact on civil liberties.
Four other parliamentary committees are also due to deliver opinions on ACTA: the Industry, Research and Energy Committee; the Legal Affairs Committee; the Civil Liberties, Justice and Home Affairs Committee and the Development Committee.
Once the Commission’s question has been decided and formally sent to the Court of Justice (a process which itself can take weeks or even months), a panel of all 27 judges, as well as all eight advocates general, will consider it.
Their review will comprise a written procedure, with submissions from the relevant parties, and possibly also an oral hearing.
There will probably be a joint statement from the advocates general, though this may not be published, before a joint opinion from the judges.
The last two such opinions (one of which concerned the feasibility of a European patent court ) both took about 20 months from start to finish, according to a spokesperson for the Court in Luxembourg.
Based on that timing, a ruling on ACTA could be expected early in 2014.
