 |
|
CONTENT SYNDICATION 
|
|
CONTENT SYNDICATION
|
|
BLOGROLL OPML:
|
|
|
|
Search in IPJUR.COM
|
BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Tuesday, December 21, 2004EU Council Votings on "A" Items: The Political Perspective.It is a pity that the Administration of the EU Council is not so far compatible with the Internet era as to provide a life video stream of the voting on the so-called "public deliberation items"; cf. my previous posting. So we are not able to watch the proceedings in order to learn what's really happening.
There are a lot of Internet publications in these days complaining that the EU Council has somehow violated the law (at least its own  Rules of Procedure) when adopting the Draft Directive on the patentability of computer-implemented inventions despite the fact that the present text has been heavily criticised by Officials of various national Governments.
For example, Prof. Dr. Lenz, Member of the Advisory Board of the FFII e.V., writes:"[...] Having an approval without a vote is somewhat surprising for those lacking the deeper understanding of the Rules gained by not bothering to actually look at them. Exactly what kind of magic produces an approval without a majority?Obviously, Mr. Lenz assumes that when it comes to the adoption of "A" items on the agenda of the EU Council, each and every representative of the various EU Member States just reproduces the vote as given months earlier when the same matter was on the agenda as a "B" item. I do, however, not share such understanding. In my view, when "A" items are to be formally approved, all representatives of the EU Member States vote with "yes" or give some implied signs expressing approval. So, I would like to think the formal adoption of "A" item matters is always given unanimously irrespective of any political dissent at the time of reaching the political agreement. By the way, this also explains why Ms. Künast was so disgusted of the perspective to head the German Official delegation at today's EU Council meeting: Under the present de-facto working scheme of the Council as sketched above she would not have had a single millimetre of political space for manoevring against the Draft Directive so much disliked by her. Due to strong political reasons, not legal constraints, she simply would have had to cast her "yes" vote and be silent. The reason of such behaviour is purely due to political motivations, not due to any legal reasons. In my understanding the EU Member States are in any legal sense free to vote as they like if it comes to the adoption of "A" items on the agenda. However, they all seem to voluntarily accept an unwritten rule saying that after a political agreement has been reached on the basis of deliberations held in a "pilot language" like English, no further substantial discussion will ever be re-opened afterwards when the result of the deliberations held in that pilot language are carefully worked out in all Official languages of the EU. Why do all of the EU Member States act in compliance with such unwritten rule? I think that all involved Officials are terribly aware that the Council's capability to act would inevitably be deteriorated if a conflicting precedence case would be allowed by re-opening the political debate on the Draft Directive on the patentability of computer-implemented inventions. What would come next? There are so many controversial topics to be resolved by the EU Council. For example, a few months later a EU Member State might feel encouraged to re-open the political debate on some agricultural Draft Regulation because of some local farmers have protested against some of its clauses. In the effect, nobody could any longer be confident that the costly and tedious process of preparing and aligning translations after having reached a political agreement would make sense because of at the end of the game the EU Council might be faced with the necessity to start all over again. And, providing dozens or hundreds of translators in a room next to the hall where the representatives of the EU gather during EU Council meetings for doing the translation work in real-time and parallel to the political deliberations seems to be absolutely unworkable. In particular, extensive language checks to be done by legal and linguistic experts in order to make sure that the meaning of the agreed text is the same in all languages take many hours, if not days. The meetings of the EU Council would have to be turned into some sort of a "convent" lasting for weeks, not just hours or a few days. Raising English to the rank of a "Primary Official Language" would solve that problem but is surely not politically reachable.
And, Mr. Lenz sees a contradiction between this usual procedure of the EU Council and Article 14 of its Rules of Procedure: "Deliberations and decisions on the basis of documents and drafts drawn up in the languages provided for by the language rules in forceSo, it might well be that in May this year the preparatory documents, i.e. the results of the first reading of the European Parliament as well as the papers from the EU Commission, had been tabled in all Official languages. This does, of course, not mean that each and every twist of the political discussion during the Council's meeting has to be translated in real time into all other Official languages. Moreover, I have not heard of any complaints in accordance with Article 14 paragraph 2. Furthermore, perhaps Mr. Lenz might give a hint where the "rules in force governing languages" he thinks to be applicable are actually codified.
| ||||||||||||||||
