CaliuCampanya contra les patents de programari  - Català Castellano Deutsche

Organisations ask for renegotiation of the software patent directive and join thousands of thanks for the delay

In the 40 days between 2004-12-21 and today, over 40 000 citizens (over 28 000 verified signatures [1]) thanked the Polish Information Minister for his position at the Council of the EU. The signatures may be handed to the authorities this week. Poland twice delayed the formal adoption of a document for the software patents directive [2] that, without defining restrictive criteria, left the door open for software patents in the EU. In recent years, Eurolinux has gathered more than 380.000 signatures against software patents [3].

The Council document[4] is the result of a political agreement of May 18th, 2004 that has received criticism, not only from the citizens but also from Parliaments of Germany [5], Poland[6] and Netherlands[7]. The Danish social-democratic party has asked its minister[8] for a new delay, and the Legal Affairs Committee of the European Parliament could decide this week to ask the Commission to block the whole process of codecision and restart it [9]. Latvia and Hungary have made unilateral declarations expressing their concern with the consequences of the directive.

Taking into account just the opposition of any one of Holland, Poland or Germany in addition to that of the governments that have not given their support to the Council (Spain, Austria, Belgium and Italy[11]), then there no longer is a qualified majority. The only way in which it would be possible to adopt the actual text in Council, is by it being considered an "A" item in the agenda, that is to say one of the items that are considered as agreed upon and that are approved by all participants at the beginning of the meeting. In other words the only way to take a decision without a majority is to not explicitly vote on it.[12]

According to the experts[13], there is another legal option which consists in requesting that the directive be considered a "B" item in the agenda. These are debated and are voted on explicitly. That is to say, the debate could be re-opened. The Council cannot change its mind once it has adopted a common position, but as it has not yet done so, it is perfectly legitimate to renegotiate the political agreement.

On the eve of a vote on the European Constitution, it is interesting to question what the actual diplomatic/democratic rules are. The current framework sets up a codecision process in two phases within the Council. First a political agreement is reached, sometimes with only one meeting of the Council, sometimes with modifications, normally on the basis of the drafts prepared by non-elected officials. Then, before a common position is adopted, it is set before the Council meeting. The only reason for this further meeting is to have more than one possible outcome, so that - even if the normal result is the adoption of the political agreement - there are rules for rejecting it (if the political agreement always had to be adopted, why present it before the Council again? - this would be redundant). The custom of not renegotiating the text of the political agreement allows the legislative process to be accelerated and made more efficient. The rules that allow renegotiation permit corrections to be made to hurried drafts, as they give time to the Parliaments of the Member States to intervene and thereby make the legislative process somewhat more democratic.

In this case, some parliaments and governments have expressed their disagreement with the text, which was presented as something it was not, was agreed upon in the fly, by a dubious vote[14] in a single Meeting of Ministers. It can be seen that the parliaments' opinion, expressed some time after the political agreement in May, and with more debate, is both more democratically representative of the position of the member states and less improvised than the results of the May 18th meeting. Taking into account these positions, the May 18th text does not get the required qualified majority. And there are rules that allow the text to be redrafted and better aligned with the wishes of the parliaments. Even then, there is hesitation to apply the current rules about redrafting the text, as nobody dares abandon the custom that political agreements are not modified. This custom is of no use - not even to accelerate the codecision process on this directive, as many months have passed since the political agreement was achieved with the text being adopted (and even if the text was adopted this week, 8 months between political agreement and Common Position is no indication of agility). Moreover, that the Council should adopt a text that is against the European Parliament's wishes would only save the first reading - but would make the second and further readings longer and more difficult and thereby slow down legislation.

So, it would be more democratic and efficient to have the courage to correct the text in the Council, where the problem is. Maybe that's never been done, or almost never, but we hope the circumstances around this directive also never happened before. Anyway, it wouldn't be a bad idea to set precedent of using all the legal alternatives to renegotiate texts that aren't in agreement with the European Parliament and enough parliaments or member state's governments as to reach a qualified majority at the time of the adoption of the common position.

If the Council approves the current text this week, or after any delays whatsoever, there are many options:

So, if Parliament keeps firm on its position, the Council, insisting on adopting a common position without the necessary majority of member states, would only make the proceedings longer or have the directive dropped.


In particular, renegotiation in Council must set to fix many of the nuances from the May text, most of the time by taking the fitting amendments from the European Parliament[19] in order to bring positions closer[20]:

If we want to reach the Lisbon goals of leadership in the knowledge economy, prevent the public and private software business to be dominated by extra-European monopolies and oligopolies, guarantee an efficient and innovative information processing infrastructure for our enterprises and citizens, preserve freedom of expression, right to be informed and the rights of programmers and other authors to their works, the member state governments must value the democratic principles and legal possibilities over the diplomatic tradition in the Council.

In order for the EU citizens that these 40 days have thanked Marcinski for its intervention to be able tomorrow to thank those we send to Brussels for loyally caring for our interests and democratically represent our wish, under the European constitution, the Nice treaty or whatever we decide, the Council must take another look at this directive.

January 30th, 2005

Comisiones Obreras ( )
Hispalinux ( )
Asociación de Internautas ( )
Proinnova ( )
Libro Blanco Sobre el Software Libre en España ( )
Càtedra de Programari Lliure de la Universitat Politècnica de Catalunya
Caliu (, )


[1] Norbert Bollow launched before Christmas from Switzerland the campaign to thank the Polish minister responsible of the December delay

[2] Directive delays

[3] Eurolinux petition for a software patent free Europe

[4] May 18th Council version of the directive

[5] Joint motion in Germany from the four parliamentary groups passed by unanimity in committee and awaiting plenary,39020645,39170869,00.htm

motion translated to English

[6] Polish Parliament (committee) position

Polish government position

[7] The Dutch parliament has accused its minister of misinforming them and has asked him to abstain in the future in Council, after he voted yes in May 2004

[8] The Danish social democrat party asks for delay

[9] More information on the debate in European Parliament to restart the directive

[10] Unilateral declarations introduced in Council

[11] On the May voting

[12] A little more information on how the Council works

[13] Juridical report on the possibilities to change a political agreement before adoption of the common position, coordinated by Dr. Luis Fajardo López

Opinion by Dr. Karl-Friedrich Lenz, European law professor

[14] In the May voting, Poland abstained and was counted as "yes", a "yes" was extracted from Denmark after a ridiculous dialogue with the presidency, commissioner Bolkestein introduced meaningless modifications as if they changed anything on what could be patented and several states voted against what they had announced to public opinion before the day. In particular the Dutch parliament accused its government of misinforming them and the government excused itself with problems with the word processor and the government of Hungary gave a fax machine failure as excuse.

[15] German Justice minister Brigitte Zypries says the there is room for improvement in the may text

[16] Munich mayor asks for renegotiation for the May text from the Council

[17] A German conservative MP criticises his Justice minister for not carrying out the renegotiation as she suggested.

[18] Petition to renegotiate the text in Council

[19] directive as amended by the European Parliament|APP@PV2|TYPEF@TITRE|YEAR@03|Find@*inventions|FILE@BIBLIO03|PLAGE@1&LANGUE=EN

[20] Differences between the Council and European Parliament versions, and explanations of changes

[21] The Austrian social democrat party asks for renegotiation

Translation note:

Text translated from Catalan.
"On the eve of a vote on the European Constitution" refers to the Spanish referendum on the European Constitution to be held Feb 20th, 2005

"must" has been used to translate Catalan "cal", where "needs to" would also have been possible. "Cal" has the sense of Spanish "hay que" or French "il faut"

Translation/correction credits: Francesc Guasch, Joel Pinckheard , Malcolm Bain, Rafael Carreras, Xavi Drudis Ferran

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