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Dear EU Minister of Agriculture and Fisheries,
At the Agricultural Council's meeting on Tuesday and Wednesday, the
Directive' COM 2002/0047 (COD) "On the Patentability of
Computer-Implemented Inventions" (Software Patent Directive) is likely
to be inserted into the list of A-items in the last minute.
This list should not be accepted.
Please object when the Council President asks for confirmation
of the agenda (at the beginning), and demand the removal of the
software patent directive from the list of A items.
The Council's rules of procedure demand that the provisional agenda
be sent 14 days in advance. In this case, the software patent directive
was set on the agenda no earlier than 2 working days in advance.
According to Article 3 Items 7-8 of the Council's Rules of
Procedure, it is enough if one country objects to this late tabling,
but support for removal may be expected from several countries.
The proposed text does not enjoy a qualified majority. It has been
inserted into the agenda on the basis of questionable interpretations
if not violations of the Council's Rules of Procedure.
- The Dutch government has been obliged by its parliament to withdraw
support. A proposal can not be adopted without a vote, and if it is
voted, the Dutch presidency must abstain. If the Dutch presidency does
not abstain, minister Brinkhorst may face a motion of distrust and be
dismissed. This means that, given the continued opposition from Spain,
Italy, Belgium and Austria, even without Poland's abstention, the
current Council Proposal no longer enjoys a qualified majority.
- On 19th of May and on 16th of November the Polish government has
stated that it can not support the Council proposal. However the Polish
EU minister, who is not in charge of the dossier, has so far, under
pressure from the Council presidency, been reluctant to execute the
decisions of the Polish government.
- The Council proposal has been criticized by all groups of the
German Federal Parliament (Bundestag) as being deficient. As the
inter-group resolution of the 30th of November 2004 points out, it does
not satisfy the demands for clarity and balance that a proposal with
such significance must fulfill.
- The Latvian Government has made it clear in a unilateral
statement that it does not support the proposed text. The French and
Hungarian governments have also expressed reservations. In Slovenia,
Slovakia, Portugal and Hungary there is practically no support for
software patents anywhere in the industry or government, except in the
narrow circles who dominate the Council's patent working party.
- The new vote is needed because the Rules of Procedure of the
Council demand a qualified majority at the time of the formal adoption
of a Common Position. A political agreement can only be adopted, if it
is supported by a qualified majority of governments at the time of the
vote. "Adoption as an A-item" means "adoption without discussion", not "without vote". There can be no adoption without vote.
- The change in voting weights on 1 November means that the
Council proposal now lacks a qualified majority if either the
Netherlands or Poland abstain.
- The explanatory documents for the Council draft were made available
only very recently so that at the time of this Council meeting only
half of the six-week period reserved for the consultation of national
institutions will have elapsed. The urgent scheduling of a
parliamentary special session in the Netherlands after the COREPER
meeting on December 15 shows the importance of this consultation
period. This text rejects essential amendments by the European
Parliament, arguing that they are "incompatible with the TRIPs treaty"
or that they would not reflect "established practice". These arguments
are new, not covered by any "political agreement" and in clear
contradiction to the resolution of the German Parliament and can not be
adopted without a vote.
- The Protocol on the Role of National Parliaments in the
Treaty of Amsterdam explicitly encourages participation by national
parliaments in the EU legislative process. It does not exempt the
Council of Ministers. Accordingly, attempts to thwart the integration
of the positions of several national parliaments (NL and DE) at this
stage would be illegitimate.
The software patent directive is creating great difficulties for the
Council because the Council has been nominating the goats to be the
gardeners. The "Intellectual Property (Patent) Working Party" consists
of the very national patent administrators who in personal union also
run the European Patent Office. They have been unwilling to deal
constructively with the questions at hand. They have ignored the
substantial amendments of the European Parliament without justification
and without addressing the problems of economic policy which the
Parliament tried to address. They have in fact merely restated their
previous agreement of November 2002, in which they had recited recent
doctrines of the European Patent Office. These doctrines, in effect,
authorise the monopolisation of business methods, algorithms, data
structures and process descriptions in the same way as in the USA,
without any effective limitation. The gap between these doctrines and
the Parliament's proposal is so wide that it will be impossible to
overcome it within the procedure of a second reading. The Council has
yet to begin a real first reading and to deliver a text which at least
shows some willingness to face the issues. Now is the opportunity to
take this first step. If it it is not taken in the Council's first
reading, then the directive is unlikely to get anywhere in the next
steps of the co-decision procedure.
In Summary:
- The current Council Proposal can not be passed as an A-item, and
there is no need for any minister in the Agriculture Council to accept
it.
- Any attempt to pass the proposal as it stands is higly hazardous
for information society and democracy in the EU and incompatible with
the Rules of Procedure of the EU Council.
Yours sincerely,
Please find further information at
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