1 Painful Insights of 2005-03-07

As Roman Herzog, former president of Germany and drafter of parts of the EU Constitution, pointed out recently, the EU’s systematic lack of democracy is becoming increasingly dangerous as time passes, and the proposed draft constitution would, if enacted, only further entrench undemocratic rule. Those of us who watched the EU’s decision making on software patents two years ago understand Herzog’s assessment very well.

On 7th of March 2005, when the Council of Ministers violated its own procedural rules and left the 23 sharp questions which we asked them basically unanswered, it became clear to some of us that the EU Constitution, which was facing a referendum in France and the Netherlands, was a dangerous project that had to be stopped. At the time we formulated this view but then withdrew our paper due to adverse reactions from our friends in the European Parliament.

Now, due to Herzog’s recent call, the ice seems to be broken. And the illegality of the 7th of March 2005 still seems to be one of the best examples for the deviousness of the EU’s central legislative institution, the Council of Ministers. Herzog points out that this institution systematically serves to circumvent parliamentary democracy by a game called “Spiel mit Banden” or “legislative laundering”, and that currently the driving force behind the push for codifying this state of affairs in a Constitution are the very ministerial officials who are playing this game.

As Michel Rocard, a constitution enthusiast, noted in his speech of July 7th of the same year (rejection day, another commemorable event), ministerial officials often act quite responsibly. The dangerousness of the Council of Ministers does not always become as apparent as it did when the Council of Ministers mixed with the European Patent Organization. It was this poisonous mixture that made the 7th of march 2005 the day which continues to be worth commemoration as “Banana Union Day”.

As long as the EU does not make progress on democratisation, it can also not make progress on patent policy. As Herzog points out, the European Court of Justice is equally a problem, in a very similar way as the Council of Ministers. It is a champion of extension of EU competences, and it is set up in a framework which lacks checks and balances. The same would be all the more true of a European Patent Court. This is why the EUPAT workgroup of FFII opposes the idea of a European Patent Court and generally of transfer of supreme judicial competences to international courts at this stage. To achieve greater efficiency in international matters, it is better, and in fact cheaper and more efficient, to use the means of judicial coordination, such as provided for example by the Hague Treaty or the Rome II Convention which the EU Council recently approved.

This, too, must be said clearly, even if it may be as inopportune as our criticism of the Constitution project was 2 years ago.

2 Resources

• Commemorating Banana Union Day
• Herzog Call for democratisation of EU – harsh criticism of the EU’s current lack of democracy and of the proposed constitution from Roman Herzog (former federal president, constitutional court judge, chief drafter of charter of rights part of the EU Constitution)
• Draft Call for a Better European Patent System – includes the statement “As long as there is no constitutional framework with democratic lawmaking at the European level, final decision power not be transferred to a European court” and a recommendation of alternatives based on judicial coordination
• EUPAT workgroup of FFII – this page tells you how to participate in our work, including how to edit this page. E.g. you have wiki-like editing access if you register in our experimental user managment system at the top of the left-hand menu.
• discussion at digitalmajority.org