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| Council 05/03/08 | EP 05/03/23 | Council | cec0503 05/03/02 | cec0503 05/03/02 | cons050217 |
The Legal Affairs Commitee will presumably decide in early April "whether indeed a Common Position exists", and then, if that is found to be the case, proceed to a decision on whether to propose amendments to or rejection or acceptance of the Council's position.
We believe that a Common Position does not exist and there is no legitimate basis for continuing the procedure regarding this directive.
The Council claims to have adopted its Uncommon Position on Software Patents on 7th March. It is evident from the session minutes that this position was not adopted by a qualified majority of member states. We have asked a series of questions to the Council's Legal Service in order to find out what exactly happened on that day, in terms of the Council's rules of procedure. Looking at the session minutes, we find that no valid decision was taken at this session. Instead we see a rehearsed theater performance, designed to blur the responsabilities and make it difficult to assess clearly who violated the rules. This has led to conflicting explanations by the Danish and the Dutch minister. When questioned by their parliaments, Bendtsen said that Brinkhorst prevented him from requesting a B-Item, whereas Brinkhorst said that Bendtsen "came to the church but did not sing" (a dutch idiom for "coitus interruptus").
Even in the Council Presidency's own words, the Uncommon Position was adopted "for institutional reasons, so as to not create a precedent". Reopening of negotiations would have created a precedent for parliamentary democracy in Europe. It would have fulfilled requests which COSAC (committee of national parliamentary committees of the EU) faised in 2000: that national parliaments should have an opportunity to review political agreements that were reached at a session by means of hitherto unknown "compromise" amendments, such as done on 18 May 2004. It would thereby have created pressures on the ministers and their civil servants to do substantial legislative work, rather than just cling to legislative power.
Both the Council and the Commission have shown since September 2003 that they dread nothing as much as the legislative responsibility that comes with legislative power. Rather than work out a real common position based on the amendments of the European Parliament, the ministers allowed themselves to be fooled into passing the most uncompromisingly pro-patent package that the civil servants form their national patent offices had drafted for them, and then spent nearly a year pressuring dissenting countries with fictitious "unwritten rules". Rather than accepting the European Parliament's invitation to work out a new proposal, the Commission rejected a unanimous motion without explanation and, in addition, misrepresented the Parliament's opposition by "agreeing" to bury the whole directive project in case the Parliament chooses to reject the current illegitimate text.
In this situation, there is in our view no longer much hope in achieving something constructive in the co-decision procedure. Any law resulting from this procedure would carry the stigma of illegality. The cleanest option for the Parliament would therefore be to state that the Council has not reached a legitimate Common Position and refuse to go on with the procedure on this basis.
If the Parliament nevertheless decides to go on on the basis of an Uncommon Position, the most straightforward approach would be to resubmit the Amendments of September 2003, possibly in a slightly tidied-up form together with a new report, so as to "kick the ball back into the Council's court", as Commissioner McCreevy would say. FFII has prepared some documents that explain the key differences between the Council version and the Parliament's version of 2003:
We also maintain an office in Brussels and a group of people who do their best to permanently provide expertise as may be needed: ....
If the Parliament can come out of the 2nd reading with a strong negotiating position, we will then look forward to a concilation procedure, in which we can melt even more ice, i.e. remove stubborn and incompetent patent officials from their positions of influence in the national ministries that handle the Council negotiations. The Parliament will then be the knight in the shining armour, and we may achieve much more than we would otherwise achieve in many years of hard political work. However, we do feel that this way of legislating is somewhat unnatural. Good laws are not made by diplomacy. Under a sound legislative procedure, the basic work would be done in the earlier stages of the legislation, by civil servants who draft the law faithfully at the initiative and according to the wishes of the elected legislators. Seen from this perspective, the Parliament has probably already gone far too deeply into the gory details of software patent legislation. A simple rejection right at the start would probably have been most appropriate.
We have a good law already, which creates a huge legitimacy problem for the European Patent Office. Plaintiffs like IBM have managed to stretch and twist the law by decisions of the Technical Boards of Appeal in the 1990s, but, given the change of climate in recent years and the incoherence of the recent caselaw, we may be able to move the interpretation back to the path of virtue even without the help of a directive. The Commission's repeated threats to kill the directive project thus do not really frighten us.
We can therefore encourage you to do your utmost to maintain the dignity of your institution and the integrity of the EU's legislative procedures, without worrying too much whether the absence of a directive might leave software developpers or SMEs exposed to an uncontrolled patent system. If we first bring the European house in order, we will better equipped to fix the problems caused by the EPO a few years from now.
Yours sincerely
