Open letter to the EU: Constitution, we have a problem

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Note: a new version of this text, which does not mention the constitution anymore, is available here. See the note at the start of that text for the reason of doing so.

7 March 2005 -- This morning, the Council Presidency rubberstamped the illegal patenting practise 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, and how the proposed Constitution will not change this despite its proponents' honorable intentions to the contrary.

Dear Legislators of the European Union,

Dear Supporters of the European Constitution,

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. I'm also not against the principle of a European Constitution. That said, I would like to say a few things about democracy in Europe as I experienced it until now, the proposed Constitution and how the latter may or may not affect the former.

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. There is also a quote from me on that page, in which I deride supporters of the Constitution, without providing any arguments as to why I attack the Constitution in particular.

In what follows, I would like to clarify my position.

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:

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. Unless the Constitution says somewhere "the written rules always have precedence over diplomatic customs and fears", it won't change this.

National Parliaments

An often touted advantage of the Constitution is that national parliaments must get the opportunity to look at all legislation before Council deliberations. In fact, this is even used as justification for giving the Council the great power that it has. 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:

[ Windows media version | Quicktime/mpeg4 version ]

The European Parliament

Another advantage of the proposed Constitution is that the European Parliament has to approve the legislation in all areas in which the Council acts by majority. Since this directive is being handled under codecision already, that will not prevent any situations as they occurred in the case of this directive however.

It indeed 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, and that will not change with the Constitution as far as I can see. Their first reading will remain merely "advice" to the Council, and the second reading will still be 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, and thus 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.

The Constitution

Relating to the Constitution in particular, I would like to note my concern regarding one specific paragraph, which simply says "Intellectual property shall be protected" (Article II-17). Given that many people consider software patents to be intellectual property, this almost seems to make any directive excluding software patents to become unconstitutional.

The term "intellectual property" should at least be defined in some way, because everything but the kitchen sink is categorised under that generic term (patents, copyright, trademarks, design rights, digital rights/restrictions management technologies, ...), and things keep getting added. The fallacy that "every idea" has to be someone's "intellectual property" is promoted more and more, which means that such a generic provision is extremely dangerous and may start to conflict quite severely with Article 10 of the European Charter of Human Rights in the near future.

I do understand however I'm quite late with this remark. Additionally, member states can define boundaries as to what constitutes (intellectual) properties when implementing the Constitution. Still, it seems like a very broad generality to have in generic constitution text.


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. I'm also certain you have the best intentions with the proposed Constitution. However, I'm becoming tired:

  1. We got almost unanimous support in the European Parliament's Legal Affairs Committee to restart the directive.
  2. This request was confirmed by unanimity in the Conference of Presidents and an overwhelming majority in plenary
  3. 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")
  4. We managed to secure a generous blocking minority in the Council (Spain, Austria, Belgium, Italy, Portugal, Denmark, Poland, Hungary, Latvia, The Netherlands)
  5. This position was confirmed by the German, Dutch, Spanish and Danish national parliaments
  6. 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.

The Constitution merely enshrines all of the above. Of course it does not codify the fact that the people who lead the European Patent Office should be the same people as those who write the Council version of the directive as it happened last year, but it also does not prevent this. It does not say that the Commission should introduce last minute amendments at Council sessions so as to confuse delegations, but it also does not call a halt to this practice. It does not say political agreements are cast in stone, but neither does it clearly say that they have less legal value than the ticket you get in a supermarket and that they should be treated as such when there is reason to do so.

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...

Sincerely yours,

Jonas Maebe

jmaebe at

FFII Board Member

Research Assistant in Computer Science, Ghent University, Belgium

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