Belgium confirms abstention regarding Council text from May

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Parliamentary question asked by Zoé Genot in the Belgian federal parliament

The question starts at the bottom of page 10 of this file (page 14 of the pdf file). The text is available both in French and in Dutch. Note that it is a summary report, and thus does not literally contain what was said.

Update: the full transcript is available now as well (only in French for now, page 12 and onwards). This version is more complete, and the Minister says that there is no more Qualified Majority in Council.

Question (Zoé Genot, Ecolo)

• First of all, I want to point out how important this dossier is, especially for the SMEs in our country. In May 2004, 10 of those companies asked the Parliament [note: should be Council] to take an unambiguous stance against the patentability of software. The EU Presidency is planning to affirm the political agreement from 18 May 2004 regarding software patents. Since 1 November, the relative weight of the member countries has evolved however, due to the Treaty of Assession. Are you in possession of studies regarding the negative economic impact of software patents on the Belgian economy and especially for SMEs? Based on which economic analyses do you take postion? Reportedly the Belgian standpoint has changed. What is the standpoint of our country? Has it changed since May of the this year? Do you still support the text approved by the European Parliament? If there are nuances, on which points to you plan to support the amendments of the Commission? During the EU Competitiveness Council of 18 May 2004, you predecessor, Ms Moerman, declared that the amendments 69 and 107 of the European Parliament were absolutely indispensable. Nevertheless, they were not incorporated in the Council text. What is the Belgian view on those amendments? As a result of that meeting, the minister also opposed the "risks of barriers to the interoperability of computer systems". In the current state of affairs, the Council does not offer a sufficient solution to that problem. What happened to that question of minister Moerman? Will Belgium tomorrow, during the metting of Coreper I, ask the Dutch presidency to check whether there a majority for that agreement?

Answer (Minister Marc Verwilghen)

• Although you question is clearly politically tinted, I will review a large number of technical aspects in my answer. Given the diversity of software, we have not been able to consult independent economical studies which would show that the patentability of software would be bad for the economy. The Belgian standpoint at the meeting of the Competitiveness Council of 17 and 18 May 2004 was focussed on three aspects of the proposal for a directive. First of all, regarding interoperability, the Belgian delegation states that merely mentioning the applicability of competition law is not sufficient. In accordance with the the decision of the Belgian Council of Ministers of 14 May 2004, Belgium supported the insertion of a provision which ascertains that certain forms of interoperability are not considered to be piracy [sic]. Secondly, Belgium asks, in accordance with the decision of the Belgian Council of Ministers of 14 May 2004, that the principle whereby a computer program in source code or object code or any other form cannot be considered a patentable invention, would be made into an article of the directive. The insertion of such a provision in the directive provides us with the most legal certainty that this principle will be abided by. Thirdly, as far as the term "technical contribution" is concerned, Belgium supports the amendments 107 and 69, be it in a slightly changed form. In accordance with the standpoint that was taken by the Belgian Council of Ministers on 21 November 2003, a working party of the European Council of Ministers reviewed the amendments of the European Parliament. There is a political agreement in the Council of Ministers regarding the incorporation of a number of those amendments. The other amendments could not be incorporated due to different juridical reasons, and thus were not reviewed any further. In conclusion, the principle of the non-patentability of software was incorporated in the provisions of the directive, and the description of "technical contribution" was adapted, due to a request of Belgium. Our land has abstained during the vote on interoperability, since it has a different opinion in this matter. Nevertheless, a qualified majority within the Competitiveness Council of 18 May 2004 reached an agreement on the draft of the adapted directive. The proposal of the directive is not on the agenda of Coreper tomorrow. The Competitiveness Council will not vote on the draft before 2005. This proposal has no relation to the Dutch presidency and does not change the proposal of 17 and 18 May. Belgium thus keeps it position and will abstain during the vote.

Closing Remark (Zoé Genot)

• I congratulate the Belgian government for the dynamism with which it has treated this dossier. I am however saddened by the fact that this has led to an abstention. I wish for Belgium to support the proposed improvements by the European Parliament during the next presidency. It is indeed true that not a single clear economic datapoint indicates that the patentability of software would be favourable to the European Economy.

Comments

Jonas Maebe

There are several unclear and seemingly misguided points in the minister's answer. One influential factor is certainly the heavy pressure of Agoria (Belgian member association of EICTA). It is unclear what the ministry's own position in this matter really is, as the Belgian standpoints always have been decided upon by the entire (Belgian) Council of Ministers until now.

Rebentisch

EICTA previously announced that Belgium (contrary to the current landslide in our favour) considers to change its vote to Yes.

"Yes, there are flaws with the directive. For example, its very name, 'Patentability of Computer-implemented Inventions,' is a disaster, but it would be a great shame if the directive went back to the Commission or into another working group because it would continue the current uncertainty over patenting computer-implemented inventions possibly for years," MacGann said.

We agree with Eicta-Director MacGann about the name of the Directive. But he also said:

"In May, Belgium voted to abstain, and though I cannot speak for the Belgium government, we have been extremely encouraged by meetings we have had with officials in Belgium and are cautiously optimistic that they may change their vote to yes,"

The Minister now officially denies that.

• Belgium thus keeps it position and will abstain during the vote.

A majority against the Council text is now there due to new member states even if Belgium voted in favour. We believe it would be a great shame if the Council text gets through as it is today.