2004-11-25 Software Patent Decision Postponed, Dutch Presidency Expects "Hard-Fought Deal" with Poland

It is now official: the Council's Software Patent Agreement of 18th of May is not on the agenda of the Competitiveness Council meetings this month (November).

According to governmental sources, the official reason is that the Dutch presidency wants to talk to the Polish government first.

According to news reports, the Dutch presidency is pressing Poland to consent to the agreement of May 18th, and still hopes to get adoption of the Common Position by early December, in line with this schedule.

European Voice, a weekly newspaper distributed in the EU institutions for free, reports in its latest edition:

THE Dutch presidency says it expects a hard-fought deal between member states on a draft law on computer-implemented patents to be approved next month, despite threats from Poland to change its mind. Dutch presidency spokesman Joop Nijsson said that the Poles were only allowed to tidy up linguistic mistakes made by 'jurist linguists' in the Council of Ministers, whose task is to ensure that legal texts mean the same thing in all languages. Nijsson said that there was no possibility for governments to make wholesale changes to their May agreement at this stage. That opportunity would fall to MEPs - who must prepare a second reading of the law from December. He said that it would be a decision agreed without debate at a forthcoming Council meeting. "We have been reading stuff and had lots of informal contacts. But we have not had any formal request from the Poles to change their position," he said.

(Note: the correct name is Joop Nijssen.)

European Voice also reports that the Polish government has not finished preparing the document that would probably be seen as the "formal request" by the Dutch presidency:

Spokeswoman Malgorzata Alterman confirmed that the Polish minister Jaroslaw Pietras had not finished preparing a final position on the draft.

At meeting with pro-software-patent lobbyists from big industry associations earlier this month, Dutch Council diplomat Henne Schuwer assured the audience that his government would stay "loyal to the Council". He did not mention that the parliament of his country has, by a multipartisan motion, called on his government to withdraw its consent to the Council Agreement [ 1].

The diplomat's claim about the rules of the Council are half-true. These rules are a customary practise but not legally binding.[2] They are not meant as means to fabricate majorities where such majorities do not exist.

[1] On 2004-07-01 the Nl parliament passed a motion which

CALLS UPON the government to act according to this opinion in further discussions of the Council proposal, and from this present moment, abstain from supporting the current Council proposal.

More: NL Parliament motion

Again we see NL diplomats acting against the will of the Tweede Kamer. See also NL Motion background

[2] Council Rules

Complaints against misinformation of the NL presidency may be directed to the EU Ombudsman, the NL presidency or the Dutch parliament.

[3] The Protocol on the role of national parliaments in the European Union

The Protocol on the role of national parliaments in the European Union demands that the Commission's legislative proposals are translated. The European Union has 10 new members. After reaching the political agreement this agreement was translated, it was the first translation the new members received. This implies that the new members' parliaments are completely free to express their view, and their governments are completely free to act accordingly. The pressure the presidency puts on these governments denies the new members the rights the protocol grants.

The Protocol on the role of national parliaments in the European Union demands that the Commission's legislative proposals are translated. In the case of the directive on "Computer Implemented Inventions" no translations have been made in the new member states' languages. The obligation to inform the parliaments is not met. It may seem overly formalistic, on the dogmatic side, since there are translations available of the May 18th political agreement. It is not. The Commission's proposal has an explanatory part the later document is missing, 12 pages of background information needed to understand the directive. The new members received less information. Without the translations, and a 6 weeks review period, a common position will violate the Protocol.

According to the Council's rules of procedure, the Council may unanimously derogate from the six-week period where the entry of an item is subject to the exception on grounds of urgency provided for in point 3 of that Protocol. In our opinion there are no grounds of urgency, and they are not mentioned in the political agreement's text either. We do not see an unanimous decision to derogate from the six-week period.

The common position will be illegal.

See also the Vrijschrift/FFII-NL letter to COSAC, December 16th 2004

See also the Vrijschrift/FFII-NL letter to COSAC, September 5th 2004

The Protocol on the role of national parliaments in the European Union