2004-12-20 Council Puts Software Patents on Agenda in Last Minute, Says Prior Publication Not Necessary

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A Zdnet report quotes a spokeswoman from the EU Council of Ministers. She confirmed that the Council's software patent directive would be passed as an A-Item at the Agriculture&Fishery Committee tomorrow. Until late friday it was on the agenda of monday's environment council session but moved to the next day. However, while the A-item was deleted from the Environment council published agenda it did not appear on a published agenda for thuesday before monday night 20.00. This procedure raises a few problems.

Council Spokeswoman: A-items do not need to be listed on the published agenda

Ziff Davis Net reports:

"It is not included as an item on the published agenda for this meeting, but the EU spokeswoman said this is because it is an "A-item", and that such items are passed without vote or discussion. The spokeswoman was unsure of the reason for the delay, but thought it may have been due to a translation issue."



The software patent directive is now on the agenda:

According to the timestamps, it must have been put there on 2004-12-20 at 20:06, and we noticed a little later.


Article 3.1 of the Council's Rules of procedures states:

[...] The agenda shall be sent to the other members of the Council and to the Commission at least 14 days before the beginning of the meeting.

All later items are sent "as requests for inclusion" (Art. 3.5), and the Council is "asked to follow this recommendation" (which is the case here).

Any Council member can reject that request by Art. 3.8.

What are the reasons in this case to reject the request?

Reason 1: article 3.3:

Items relating to the adoption of an act or a common position on a legislative proposal or a proposal for a measure to be adopted in accordance with Title VI of the Treaty on European Union shall not be placed on the provisional agenda for a decision until the six-week period provided for in point 3 of the Protocol on the role of national parliaments in the European Union has elapsed. [...]

The texts to be adopted include the "statement of reasons" which is only about 3-4 weeks old (published on 24 November):

This violates the 6-week period provided for participation of member state parliaments. One may point to the urgent special session in the NL parliament after COREPER (15 Dec) to show that this period is neither generous nor an unused option.

Reason 2: article 3.5

The General Secretariat shall transmit to the members of the Council and to the Commission requests for the inclusion of items in the agenda and documents in respect of which the time limits specified above were not respected. If, by the end of the week preceding the week prior to a Council meeting, Coreper has not completed its examination of legislative items within the meaning of Article 7, the Presidency shall, unless considerations of urgency require otherwise and without prejudice to paragraph 2, remove them from the provisional agenda.

Coreper I discussed the item about software patents only on Wednesday 15 December. If the Council talks about it this week (21 or 22 December) then the timing of article 3.5 is not respected:

There has to be full week in between, the week prior. This was not the case here.


There are several reasons to remove the software patents A-item from the agenda (article 3.3 and article 3.5). A unilateral removal opportunity is offered by article 3.8.


Rebentisch: Council chaos and non-disclosure

André Rebentisch explains:

Late and under heavy public pressure the Council intends to publish its agenda we already knew from unofficial sources. Maureen A. Barnett (DG F) wrote in an email-reply to Benjamin Henrion

The Council seems to be unable to publish documents in time and disclose them to the public. The NL presidency seems to interpret the council's rules of procedure in a rather unique way.

Occasionally some officials even spread the internal news that a removal from the agenda or a call for an B-item would be possible. A lot more is possible in the Council than government officials would have you think. Whether or not something is done is usually more a question of political will than of rules, it seems.

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