Council Presidency Adopts Software Patent Agreement Against Council's Rules
7 March 2005 -- The Council Presidency today declared the software agreement of 18 May 2004 to have been adopted, in violation of the procedural rules and in spite of the evident lack of a qualified majority of member states and the requests of several states to reopen negotiations.
- Poland, Denmark, Portugal and others (not specified) asked for a B item (discussion point)
The Luxembourg presidency claimed this was not possible due to procedural reasons, and that this would have undermined the whole process -> it would stay on the list of A-items
- Luxembourg then gave a long statement regarding how the EP still gets a chance in second reading, the importance of avoiding legal uncertainty etc.
- Denmark said it was disappointed about this, but accepted and submitted a written declaration
- Later on, the list of A items was accepted by the Council
Luxembourg negated the Council's own Rules of Procedure, which state that a B-item (which is at the same time a request to remove an A item) can only be rejected by the a majority of the Council, and not just by the Presidency. (art 3.8), see also excerpt of relevant rules
The objecting countries seem to have forgotten to request removal of the A-item from the agenda. Rules 3.1 + 3.7 would have given any single country the right to have the A-item removed, because the Luxemburg presidency had failed to insert it more than 14 days earlier. This is how Poland has removed A-items from the Agricultural & Fishery Council twice in the past.
- This is a very sad day for democracy, and casts a very dark shadow over the European Constitution, which will give the Council even more power.
Reportedly, the Danish minister (who was forced by a parliamentary committee to request a B-item, but did not like that at all) and the Luxembourg Council Presidency use the following paragraph as defense for their behaviour:
- 3.6. The provisional agenda shall be divided into Part A and Part B. Items for which approval by the Council is possible without discussion shall be included in Part A, but this does not exclude the possibility of any member of the Council or of the Commission expressing an opinion at the time of the approval of these items and having statements included in the minutes.
This paragraph indeed does not mention anything about the possibility to change an A item into a B item. Looking at rule 3.8, that one says:
- 3.8 "However, an A item shall be withdrawn from the agenda, unless the Council decides otherwise, if a position on an A item might lead to further discussion thereof or if a member of the Council or the Commission so requests."
They might argue this still doesn't say anything about changing an A item into a B item, although three countries (with the support of more) asking for a B item is hard to classify as anything but something which "might lead to further discussion". Additionally, Annex III of those same rules of procedure states on page 20, point 1(c):
- (c) Article 3(8) (maintaining as a "B" item on the agenda an "A" item,
- which would otherwise have had to be withdrawn from the agenda);
This clearly and literally provides for the possibility of turning an A item into a B item if otherwise the A item would have to be withdrawn from the agenda (which is the case if there "might" be further discussion due to some statement from a country).
Audio stream from Council session (sent by on-site activists)
Jonas Maebe, FFII Board Member:
- It is absolutely unfathomable what happened today. I cannot see how the promoters of the European Constitution can still support it with a straight face. This event shows that something is clearly rotten in the city of Brussels at the Council building. Why on Earth do we still have the rules that state that national parliaments should be taken into account by the Council? Things would be much easier if we scrapped all those rules and simply wrote down "The Council presidency and Commission can do together whatever they like". There's no need for those pesky democratically elected parliamentarians to interfere with the smooth decision making process of the Council, since its only goal appears to be to please big business and to produce as many texts as the sausage machine can bear. This is absolutely disgusting.
- Dieter Van Uytvanck dietvu at ffii org tel. +31 (0)6 275 879 10 Jonas Maebe jmaebe at ffii org tel. +32 (0)485 36 96 45 Hartmut Pilch phm at ffii org tel. +49 (0) 89 18979927
About FFII -- http://www.ffii.org
The Foundation for a Free Information Infrastructure (FFII) is a non-profit association registered in several European countries, which is dedicated to the spread of data processing literacy. FFII supports the development of public information goods based on copyright, free competition, open standards. More than 500 members, 1,200 companies and 75,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.