Questions to the Council: what happened on monday?

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Here is the FFII draft letter to Consilium.

Interinstitutional File: 2002/0047 (COD)

Sorted questions

The original questions are below in the unsorted section. Please feel free to move more of them up here, or to enhance the sorting classes.

Please delete points that are already in the draft letter.

agenda

• (still something ?)

meaning of written statements submitted to the presidency

There were written statements delivered to the presidency even before the council session, from Latvia, Poland, Nerherlands, Denmark, and Cyprus, where these members clearly expressed that they do no more agree with the text as negotiated on 204-5-18.

• Is it correct that the presidency was informed about the content of these statements ?
• In how far differ written statements submitted before the council session from literally expressed opinions during the council session, in terms of significance to the presidencies decisions ?
• Is the presidency basically able to accept written statements as indication that there might be 'further need of discussion' ?

what is a session, anyway ?

• At which time in relation to the start of the public audio transmission was the council session officially opened ?
• In the case the Council dealt with the point in question already before the public transmission started, what was negotiated and why wasn't it made public ?

the session: public part

The presidency explained that Denmark, Poland, and Portugal would have preferred the point in question to be the subject of a B-Item discussion, and that it 'was not able to accept that'.

• What exactly was the presidency unable to accept ?
• When, and in which form, did these member states inform the presidency of their wish ?
• Under what conditions would the presidency be able to accept a request for degrading an A-Item to a B-Item after the political agreement has been achieved already ?
• What are the conditions to reject a B-Item request in terms of votes or number of member states ?
• Would the case a written statement does not comply with the literal statement of a council member of the same member state, would the presidency be obliged to clarify this occurence ?

• according to the press release http://ue.eu.int/cms3_Applications/applications/search/newsDocDetails.asp?cmsid=245&dockey=84021&doclang=EN〈=EN spain voted against it (vote against an A item?)

the session: not public parts ??

The presidency stated lierally "Now I call on the Council to approve also the other A-points." [3], before proceeding to adopt the A-Items. This might be reasonably understood as a vote. Everyone keeping quiet in that second might be assumed to have approved under Number 16 of Annex IV of the Rules of Procedure. However, the expression 'approve also the other' indicate that the vote in this particular moment was only about other A-items than the one in question.

• When did the vote on the item in question happen ?

According to the PR protcol (http://ue.eu.int/cms3_Applications/applications/search/newsDocDetails.asp?cmsid=245&dockey=84151&doclang=EN〈=EN) there have been items on Energy:Energy policy, Research:Korea, Security:Iraq accepted.

speaking time management

• How could a delegate express his wish to speak, and under what conditions is he allowed to do ?
• Are there conditions when a delegate can not speak even if he expresses his wish to do so ?
• Who is responsible for the microphone mamagement ?
• How is it decided whose micro is switched on or off at a given moment ?

• There was an incident with the french delegate at minute (05:14) and also with the cyprus at mnute_(01:20) (footnote->1). It seemed to happen that they wanted to say something, however, their microphones get switched off. Does the repsidency agree to this interpretation ?

• Is there any provision to ensure a delegate who wants to speak can ensure to get the possibility, even when his microphone is not switched on ?

recording and streaming to the public

• What kinds of literal protocoling is basically done at the council (written, audio, video), and who is responsible for the orderly conduction ?
• When start the different types of protocoling, after the ministers enter the council ?
• Are these protocols intendet to be complete ?
• If yes, how long after a council session - if at all - are complete protocols of any type and recording available to the public ?
• If not, what is the legal base for this decision ?

• There seems to be a gap in the public audio stream from minute (06:36) to (07:08), when minister Brinkhorst started to make a statement. Do you know the reason ?

• Do you intend to supply the public with the missing piece (eg from the written protocol) later ?

interpreting the rules

• Is the presidency obligated to the principles 'The presideny is neutral' and 'The presidency is always in the hand of the Council' as outlined in the 'Council Guides Volume I' (footnote->3), Chapter I(3) and I(5) ?

• Given that there was no explicit vote (in terms of asking the individual members) on the point in question, what does the presidency consider to be the meaning of 'vote' in article 8 and 9 CRP, and where can it be found in the published protocols ?
• Within the CRP, do exist articles where the terms 'the Council' and 'the presidency' can be interpreted as fully synonymic ?
• Is there any article in the CRP excluding the downgrading and rediscussion of an A-Item ?

• Are the chapters 'The presideny is neutral' (I (3)) and 'The presidency is always in the hand of the Council' (I (59)) of the 'Council Guides Volume I' (footnote->3) directly or indirectly binding to the Council presidency when interpreting the CRP ?

footnotes

1 According to inofficial transcripts

http://crashrecovery.org/council-transcript.html

http://kwiki.ffii.org/ConsTrans050307En

2 "Maintenant j'invite le Conseil à adopter aussi les autres points de la liste points A. Tel est le cas? Je vous en remercie, les points A sont adoptés."

... which we translate as:

"Now I call on the Council to approve also the other A-points. Yes? Thank you, the A-points are adopted."

3 'Council Guide' Volume I-III of February 2001,

published by the General Secretariat DG F -- Information, Transparency and Public

__________________________________________________

Unsorted questions

• Do you think that the final decisions of the council should be regarded as democratically legitimated by the member states?
• What other procedure than a formal voting process do you regard as acceptable for assuring that the required majority is met in a final decision of the council?
• To what institutional entity could a democratically legitimated final decision of the council be referred in your opinion:
  • to the personal decision of the council presidency
  • to the personal decisions of the council members
  • to the decision of the member state governments, represented by the council members
  • to the decision of the member state legislatives, represented by the council members?
• Was the agenda sent to the other members of the Council within 14 days before the beginning of the meeting (article 3(1))?
• At what time the complete agenda has been published on the Council website?
• The Presidency probably did not put the item on the agenda enough in advance. All the Council members should anonymously agree to have it on the agenda. Do you have a written proof of their agreement of the agenda?
• When does the presidency has sent a request for inclusion on the agenda? When do other council members have received it?
• Why does Bulgaria and Romania do not have benefited from the 7 days required to have a look on this important directive? Why the Council Presidency has shortened their period of for reasons of urgency? Did they agreed to shorten it? Do you have official documents proving their agreement with the shortening of their rights?
• The Danish European Affairs Committee obliged the Danish minister to remove the directive as an A-item according to article 3(8), but that obligation was not fullfilled. Why?
• Only "the Council" decide that B-Items are inadmissible. Who was "the Council" in this case?
• How many countries are needed to have a B-item?
• The Council Presidency once refers to itself as "I, the Council". Does the Presidency want to imply that the reference to "the Council" in rule 3 is a reference to the Presidency, i.e. the presidency alone can decline B-item requests ?
• Certain parts of the session were not public, e.g. speeches by Brinkhorst and Bendt. Why?
• Can the Common Position be sent to the European Parliament before the minutes are signed?
• What happens if a member state does not sign the minutes?
• Given that adoption of an A-Item requires an absolute majority in the commission, when did the commission agree to the common position on software patents?

• Did you know that Patent Lawyers alone of the DG Internal Markt have written the proposal? Do you think it is normal that Patent Lawyers alone writes the European Patent Law?

• Do you think the Luxembourg Presidency had the right to deny the B-item request on monday?

• Do you have recordings of the whole council meeting, even parts that are not public?

• Can you point out which rule of the Council Rules of Procedure (CRP) the Lux Presidency has used to deny the B-item request?
• Can you point out where is the rule of the CRP which says that a political agreement cannot be rediscussed?
• If you cannot locate the previous article, can we consider that the Presidency has misguided Council Members and the whole yesterday?
• In his speech, Mr Kreke invites the Council Members to approve the "other" items from the list, and has not asked to approve the software patents item. Where does the Presidency has invited Council Members to approve this item? Can we consider, if Mr Kreke has invited Council Members to approve the list of other items, that Members have not given their agreement on this item, because they were never asked?
• The Presidency has refused to discuss anything about the B-item possibility. 3 countries has anyway requested some wishes to have a B-item. Is this contrary to the Rule xx, which says if a directive needs further discussions...
• On the Rule xx, it says that nanana further discussions. How many declarations are required for the Presidency to reopen discussions?
• How many directives in the history of the Council has had more statements attached to the formal approval of the Council in first reading? How many are required to have
• Mr Kreke mentionned in his speech that there are "procedures to follow" and that he can cannot accept the request from the 3 countries for those reasons. The Belgian Minister Verwilghen said in the Belgian Parliament that no country asked for a B-item. Can you explain why the Presidency mentions the request from those 3 countries in his speech if nobody asked? If those countries has really asked the presidency in private or informally, can they confirm it? Can they provide the answer Mr Kreke has provided at that time outside public eyes and ears?
• If those 3 countries have asked the Presidency informally or orally, and if the Presidency has replied informally or orally, can we conclude that the Speeches of the Public Deliberation has been prepared in advance?
• What is the exact procedure to follow by the Presidency when a Council Member asks informally to have a B-item?
• If it appears that there are no procedural reasons to argue that a political agreement always leads to a common position, can we say that the Presidency has misguided the public?
• If it appears that there are no procedural reasons to argue that a political agreement always leads to a common position, can we say that the Presidency has misguided the Council Members?
• If it appears that there are no procedural reasons to argue that a political agreement always leads to a common position, can we say that the Presidency has misguided the Commission?
• If it appears that there are no procedural reasons to argue that a political agreement always leads to a common position, can we say that the Presidency has misguided the National Parliaments?
• If it appears that there are no procedural reasons to argue that a political agreement always leads to a common position, can we say that the Presidency has misguided the European Parliament?
• If during informal discussions with the Council members, it appears that the Presidency has answered the same arguments as in his speech (procedural and institutional reasons), can we conclude that he has misguided diplomats?
• Why was the Presidency apparently afraid to initiate a vote on this 'informal' request from those 3 countries? If this vote was initiated, what question would the Council members have been asked to vote on? With which majority?
• During discussions between a lobbyist and a Luxembourg diplomat, this diplomat agreed that it was possible to have a B-item in Council. Why does the Presidency has denied that possibility in Council?
• Can the Presidency explain just how it sees Parliament's suggestions as irrelevant?
• Will the Council continue to deny that its text allows for patenting any software item? What then does it make of the results of the second hearing organised by the Polish Government in November 2004, where all the industrialists present came to the opposite conclusion?
• Just how does the Council reconcile the position of its text, saying it confines itself to codifying the existing practice of the European Patent Office, with that of those who affirm that it does not permit the patentability of software?
• Does the Council intend to validate the thousands of EPO patents granted concerning the organisation of computer-based data, or business methods patents, and potentially those which may be granted for pedagogical or surgical purposes?
• Can the Council bring itself to admit that a definition of what is "technical" such as "using technical means" is quite tautological and cannot therefore suffice to distinguish that which is patentable from that which is not?
• If in the Council's eyes reference to putting natural forces (material and energetic) to work is not relevant as a basis for distinguishing what is patentable from what is not, can the Council propose another, since our principal objective as lawmakers is precisely to propose one?
• Was there an informal dinner beforehand, as the stenographic (UNCORRECTED!) report on the site of the Dutch Parliament mentions? What does the Council think this means to European democracy in the EU if such decisions, to the public, seem to happen in 'backrooms'?

Other

• Collection of questions for Charlie McCreevy

History

• added Links to two Press Releases about the meeting --BerndEckenfels