Open letter to the EU: Council, we have a problem
Note: the original letter which was on this page can still be found here. Although I do not think that anything I wrote there was fundamentally wrong, the criticism on the proposed European Constitution had in fact little to do with what happened in the Council session of 7 March 2005. Although the Constitution does not address the problems which arose there, it would not have made things worse either. Additionally, although it was clear we had the rules on our side, they found ways around them anyway. Our primary need is a change of attitude at the Council, and that's completely independent from any treaty or Constitution.
7 March 2005 -- This morning, the Council Presidency rubberstamped the illegal patenting practice of the European Patent Office by adopting a proposal without vote and without a qualified majority of member states, "so as not to create a precedent which might have a consequence of creating future delays in other processes". Jonas Maebe, Belgian computer scientist and board member of FFII, explains in an open letter how the experience with the software patent directive has proven the EU Council to be democratically unaccountable, which does everything but bring Europe closer to the people.
Dear Legislators of the European Union,
I'm not "against Europe", nor against the concept of the EU. On the contrary, I very much enjoy several of the benefits that the EU has brought us and I think that close cooperation between member states can help everyone. That said, I would like to say a few things about democracy in Europe as I experienced it until now, in particular the lack of it at the level of the Council of Ministers.
I have now been involved for almost two years in the discussion and political process surrounding the software patents debate. I was not involved from the start, but I did spend several weeks in the European Parliament and have been in contact with several parliamentarians, civil servants and representatives of the European Patent Office. I even spent a night in the European Parliament in Strasbourg, helping to prepare the FFII voting list for the legendary 24 September 2003 EP vote. Overall, it has been a very educational two years.
As you are undoubtedly aware, the EU Council of Ministers adopted its Common Position on the software patents directive on 7 March 2005. You can find the Foundation for a Free Information Infrastructure's account of what happened here. In what follows, I would like to explain in more detail what happened exactly in the background, and why I am so upset. It has little to do with software patents, unfortunately.
The Council session of 7 March 2005
An MEP who saw our press release noted that "it certainly appears that the Council presidency took some procedural shortcuts". That is an extremely diplomatic way to put it. The Council Presidency spoke in name of the entire Council (pluralis majestatis as it were) and reversed voting requirements. The rules state that "an A item (formal point) shall be taken off the agenda if a member state so requests or if it might lead to further discussions, /unless the Council decides otherwise/".
When Denmark asked for that, the Presidency simply announced it did not want to take it off, instead of asking whether there was a majority against taking it off. Therefore, "unless the Council decides otherwise" became "if a majority of the Council wants to go against the Presidency's will, while not even a vote has been called". This might seem like splitting hairs, but in the Council where every sign of opposition is presented to us as something which foreshadows the end of EU decision making as we know it, this is a difference between night and day.
Some more interesting points:
- The request for a B item (discussion point) was supported by Poland, Portugal, the Netherlands and Denmark. Losing the support of even one of the first three of those countries was enough to be left with a text no longer supported by a qualified majority. Asking for renewed discussions means that they are not happy with the current text, otherwise they wouldn't do so.
Unilateral declarations with concerns of no less than 8 countries (7 of which officially voted in favour of the text) are attached to the text of the Common Position. Especially the Polish one is very harsh, and basically states "we recognise a political agreement has been reached and do not dare to attack it, but the text from 18 May is our worst nightmare". You can read it at http://register.consilium.eu.int/pdf/en/04/st16/st16120-ad02.en04.pdf
This has nothing to do with software patents. There was simply no qualified majority (possibly not even a simple majority) in the Council for this text. It was purely due to diplomatic inertia and fear of doing something against whatever is customary that it slipped through. As Karl-Friedrich Lenz, professor in European law, writes, the Council is simply too important to be ruled on the basis of unwritten rules, especially if they are invented on-the-fly.
The Council's great power is justified by the fact that it acts with a mandate of the various national parliaments. The problem with this is that this directive has shown that various governments simply do not care about what the national parliaments say (let's not even mention the European Parliament).
Before the political agreement of May 2004 was reached
The Dutch national parliament was misinformed about the directive. Minister Brinkhorst told the Dutch Parliament in April 2004 that there was a compromise between the Council and the European Parliament, so that the political agreement in the Council was a formal non-issue. One could argue that the Dutch Parliament should have verified whether or not this is true, but as Mr Rocard would put it, that was quite an "inelegancy".
Consequently, in July 2004, the Dutch Parliament adopted a motion in which it stated that it had been misinformed, and called upon the government to from then on withhold its support for the Council text. The Dutch government promised to execute this motion, but reinterpreted it as meaning "only if it ever becomes a B item again and it is voted upon, then we will change our vote into an abstention". Given all the panic reactions we saw the last few months about the possibility of this ever becoming a B item again, this amounted to saying "Nice motion, but no cigar".
At the May 2004 Council session
As you undoubtedly know, a political agreement has not an ounce of legal value in any way. As the name implies, it's purely political. Given that in this case there were three last-minute amendments introduced by the Commission and one last minute "compromise" by the German delegation and the Commission, it is fair to say that not a single parliament has had the chance to decide about the final text that was adopted on 18 May 2004. And due to everything that happened later, they didn't have any chance later on either.
Before those amendment were introduced, the majority of the Council members were against the text. After those "compromises" (which did not change anything to the substance of the text), a 10 minute break was held in which everyone was scrambling to call national experts to judge those texts. Several delegations failed to reach anyone and as such did not really know what to do. Many simply followed Germany, since they had been sort of coordinating the opposition in the Council before.
However, Germany seemed to be in bed with the Commission now, being content with the sole addition of the word "new" in the definition of "technical contribution". After Denmark was persuaded to be "80% happy" by the Council Presidency, the Presidency even didn't ask Poland anymore because their vote was no longer needed. If you have not yet seen the Denmark-Ireland dialogue, you can find it at the link below this paragraph. It's only 45 seconds long, and if it weren't about a decision as important as this one it would even be quite funny:
The fact that such last-minute amendments can be inserted at the session where a political agreement is reached combined with the refusal of reopening discussions political agreements afterwards, means that national Parliaments are being denied their right, and indeed duty, to keep their governments in check.
The European Parliament
It seems to many now that the only way out now is a massive rejection by the European Parliament in second reading, but I would not consider that a victory for the EP. It's giving up against the Commission and Council who seem to be determined to do whatever they like, unless the EP simply stops the whole procedure by destroying the directive project.
The EP then merely acts as an emergency brake in the current situation. Their first reading is merely "advice" to the Council, and the second reading is handicapped by "majority of its component members" requirements. Additionally, the Commission can still basically nullify the EP position in the Council's first and second readings by disagreeing with amendments, which require the Council to act by unanimity rather than by qualified majority on those points.
It must be noted however that if a directive goes into Conciliation, then the EP may be able to assert itself after all. If it approved a similar set of strong amendments twice before (in first and second reading), that may give them a strong negotiation position against the Council and Commission. The absolute majority requirement in second reading makes this difficult to achieve, but on the other hand strengthens the signal if it is actually achieved.
I am sorry to be so pessimistic and to dump this on you, even though many of you personally have no fault in all this. However, I'm becoming tired:
- We got almost unanimous support in the European Parliament's Legal Affairs Committee to restart the directive.
- This request was confirmed by unanimity in the Conference of Presidents and an overwhelming majority in plenary
- The Commission declined and until today has not been able to produce any explanation as to why (except for "we want the procedure to continue")
- We managed to secure a generous blocking minority in the Council (Spain, Austria, Belgium, Italy, Portugal, Denmark, Poland, Hungary, Latvia, The Netherlands)
- This position was confirmed by the German, Dutch, Spanish and Danish national parliaments
The Council presidency "takes some shortcuts" and shoves it through as a "non-discussion" item, "so as not to create a precedent which might have a consequence of creating future delays in other processes"
Because democratic ways fail over and over again, the situation has now become so bad that some people even set up a web page where you can pledge money to bribe the Council, because that's the only way they see that's left to get anything done at all. It may seem like a joke, but after everything I've experienced the past one-and-a-half year (since the directive was passed from Parliament to Council), it would not surprise me in the least if they're half-serious.
I would like to conclude with an overview of events which I consider particularly regretful:
- The Council text approved by the Council on 7 March 2005 was primarily written by the same people who sit on the Administrative Council of the European Patent Office, although one of the goals of the directive is supposedly to keep the EPO at bay.
- The Commission and Germany introduced a misleading amendment at the Council session of 18 May 2004 which confused many delegations, and caused the orders given by many national parliaments to be nullified.
- A precedent stating that political agreements can not be modified for "procedural and institutional reasons" has been set by the Council, which means that national Parliaments are denied the possibility to act when they are convinced their government has not acted according to their wishes at a Council session where such an agreement is reached.
How on Earth am I expected to still believe in this farce? I really do want to believe. Just give me chance to do so...
jmaebe at ffii.org
FFII Board Member
Research Assistant in Computer Science, Ghent University, Belgium