European Council adopts software patents proposal

By EDRi · March 10, 2005

The European Competitiveness Council (the EU ministers of Economical Affairs/Industry) has adopted the controversial common position on software patents on 7 March 2005 as A-item. This classification means a proposal is adopted without further debate. Spain voted against. Austria, Belgium and Italy abstained, while Denmark, Cyprus, Latvia, Hungary, the Netherlands and Poland added a written statement to the Council minutes. Earlier, the European Commission had refused a request from the presidents of all the major political parties in the European Parliament to withdraw the proposal and start all over again.

In a first response, the EP committee on legal affairs (JURI) demanded to see full documentation (including minutes, declarations and transcripts of the recordings) of what happened in the Council. JURI decided to call for this record because they doubt if there actually was a majority of member states in favour of the Common Position.

Whatever happens, the European Parliament is now preparing for a tumultuous second reading of the proposed directive. The MEPs can either reject the directive completely with a two thirds majority or once more adopt all the amendments they brought forward in the first reading. EU Commissioner Charles McCreevy of the Internal Market explained in the Strasbourg plenary session of 8 March that the Commission would not come up with a new proposal if the parliament were to reject this one. If, on the other hand, the parliament were to suggest amendments “the Commission will give due consideration to those, but of course, the Commission cannot speak on behalf of the Council.” Since almost all of the parliamentary amendments in the first reading were ignored by the Council, that was not a very hopeful message for most MEPs.

The Danish minister of Economical Affairs, Bendt Bendtsen, was given the explicit order by the Danish parliament to change the A-item into a B-item, to be able to discuss the proposal in depth. But he found no clear support from other member states for this attempt. The Luxembourg President of the Council then proceeded to dismiss the Danish request on his personal account as President, saying “It would undermine the whole logic of the exercise as provided for in the procedures” if the Council were to go back on its initial common position adopted in May 2004.

It is precisely this ‘logic’ that has escaped a majority of members of the European Parliament and many members of national parliaments. The initial common position on software patentability was reached in extreme haste, just before the newly acceding EU countries would have a right to vote, and with plenty of accusations from national parliaments in the original 15 member states that their ministers had wrongly agreed to this text.

The satisfaction of the advocates of software patents was perhaps best expressed by a headline in the e-zine DM Europe “EU ministers give finger to patent law refuseniks”. But the soap story doesn’t seem to end there. In the Dutch parliament furious MPs have demanded explanations from their minister. In the Netherlands, the minister was forced by parliament to support any initiative to change the A-item into a B-item. Strangely enough, his microphone malfunctioned when he was supposed to have supported the Danish initiative, as can be clearly seen and heard in the audio and video-archives of the public debate in the Council. According to an explanation the Danish minister Bendtsen gave to the newspaper Politiken only Portugal supported his effort to change it into a B-item. On 10 March the Dutch parliament will have a plenary debate about this.

Audio- en video archives of the Council meeting (07.03.2005)

Council Presidency Adopts Software Patent Agreement Against Council’s Rules (07.03.2005)

Bendt Bendtsen afviser kritik af patentafstemning (in Danish, 07.03.2005)

EU ministers give finger to patent law refuseniks (08.03.2005)