Software patents adopted by the EU

From FFII,

"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.

Report
Cyprus submitted a written declaration at the start of the Council session
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
Conclusion
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)
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.
Council defense

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 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, but 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 provides for the possibility of turning an A item into a B item.
Audio stream from Council session (sent by on-site activists)
Since the debate is over, the live stream links have been removed
Audio recording
Comments

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.


Hartmut Pilch (english version soon):

Die nächste Frage ist jetzt, wie der Rechtsausschuss des reagiert, der
heute um 18.00 in Straßburg zu diesem Thema tagt.

Das EP muss nach EP-Regel 57 entscheiden, ob ein "Gemeinsamer
Standpunkt" vorliegt. Angesichts des heutigen eigenmächtigen
Verhaltens der Ratspräsidentschaft erscheint dies zweifelhaft.
Ohne "Geimeinsamen Standpunkt" kann das EP auch nicht zu einer
zweiten Lesung voranschreiten. Eventuell wird da der EuGH
entscheiden müssen. Auch die düpierten Regierungen von
Dänermark, Polen, Portugal etc haben Zugang zum EuGH. Für
uns übrige Europäer bleiben vielleicht nur Mittel wie eine
Bewegung gegen die EU, natürlich auch gegen die EU-Verfassung.
Auch wenn die Ziele der EU begrüßenswert sind, muss das Ausmaß
an Leid und Tyrannei, das wir um dieser Ziele willen in Kauf
zu nehmen bereit sind, irgendwo seine Grenzen haben. Wenn
wir die in diesem Fall nicht klar aufzeigen können, steht uns
noch viel Ungemach ins Haus, nicht nur von Seiten des Patentwesens.

Extra information
Council press briefing"

So that's it. After all the years of negotiations, lobbying, underhand politics etc., it gets railroaded through by the Luxembourg presidency, in breach of procedure because the attending objecting ministers have not got energy, political will (in spite, in Denmark's case of being instructed by the national parliament to do so) or the knowledge of procedures necessary to block it.

It's a sad day for constitutional democracy in the EU, even though in practice it remains to be seen how much real effect the directive will have, since the European Patent Office have been arguably granting software patents for years. The directive, as I understand it, will now go to the EU parliament for a second reading but the parliament has limited abilities to change or reject it - even if the parliament did decide to reject it I think it could still be passed by the Council of Ministers.