[LUGOS-BLA] Re: [LUGOS] [Fwd: [ffii] What happened on March 7th regarding SoftwarePatents ?]

Tue Mar 15 18:48:21 CET 2005

Bo hrabremu misku uspelo resiti svet ali ga bo pojedla polentojedozerka?

;)

----- Original Message -----
From: "Andraz Tori" <Andraz.tori1 at guest.arnes.si>
To: <lugos-list at lugos.si>
Sent: Tuesday, March 15, 2005 3:40 PM
Subject: [LUGOS] [Fwd: [ffii] What happened on March 7th regarding
SoftwarePatents ?]

> Ostra vprašanja za svet.
>
> Kaj se je pravzaprav zgodilo 7 marca?
>
> Kako izgleda evropska demokracija?
>
>
> -------- Forwarded Message --------
> Od: PILCH Hartmut <phm at a2e.de>
> Za: public.info at consilium.eu.int
> Cc: news at ffii.org
> Zadeva: [ffii] What happened on March 7th regarding Software Patents ?
> Datum: Tue, 15 Mar 2005 15:36:45 +0100 (CET)
> Dear Council Presidency,
>
> On Monday, 7 March 2005, the Council claimed to have reached a Common
> Position on the controversial software patents directive. Several
> national Parliaments had given orders to their governments to oppose
> the draft text that was on table. Additionally, many governments were
> not happy with that text, so they attached a unilateral declaration to
> the reached agreement. Some governments even asked to reopen
> discussions. Finally, from the publicly available audio and video
> data, it seems as if the vote on the software patents A item simply
> never took place.
>
> We would therefore like to receive answers to the following questions:
>
> Q1: Was the agenda sent to the other members of the Council within 14
> days before the meeting (article 3(1))?
>
> Q2: In case the software patents A item was not put on the agenda at
> least 14 days in advance of the Council meeting, did not a single
> member state ask for it to be removed from the list of A items?
>
> Q3: When did the presidency send a note regarding its inclusion on the
> agenda? When did other Council members receive it?
>
> Q4: (a) Did Bulgaria and Romania receive the required 7 days to have a
> look on this important directive? (b) If, as we are told, this was not
> the case, what reasons of urgency caused the Council Presidency to
> shorten their period? (c) Did those countries agreed to shorten this
> period?
>
> Q5: The European Affairs Committee of the Danish Parliament obliged
> the Danish minister to request a B item according to article 3(8). The
> Council Presidency in its initial speech mentions that Denmark,
> alongside with Poland and Portugal, indeed asked for a B-Item, but
> that their request was inadmissible. Is it therefore correct to assume
> that Denmark requested a B-Item, as called for by its Parliament?
>
> Q6: Does requesting a B item not automatically imply a request to
> remove the A item?
>
> Q7: Article 3(8) of the Council's Rules of Procedure states that 'if a
> position on an "A" item might lead to further discussion thereof', the
> A item must be removed from the agenda. Is the fact that three member
> states wanted to reopen the discussions not an indication that certain
> positions "might" lead to further discussions? If not, can you give an
> example of something which would fulfill the conditions set out in
> this rule?
>
> Q8: Only "the Council" can decide that a request to remove an A item
> or to turn it into a B items is inadmissible. Who was "the Council" in
> this case?
>
> Q9: In case an actual vote is held about this, what kind of majority
> rules are used?
>
> Q10: If this vote were initiated, what question would the Council
> members have been asked to vote on?
>
> Q11: The Council Presidency referred to itself as "the Council" in
> relation to rejecting the Danish B item request. (a) Does the
> Presidency want to imply that the reference to "the Council" in
> Article 3 of the Rules of Procedure is a reference to the Presidency,
> i.e. that the Presidency alone can decline a B item requests? (b) If
> so, based on which rule?
>
> Q12: With regard to reopening the discussions, the Presidency stated
> it could not reopen discussions because "there are procedures which
> have to be respected". (a) Can you point out which procedures state
> that a political agreement cannot be discussed again? (b) If there is
> no such rule, how can this statement be justified?
>
> Q13: (a) If the Presidency alone cannot deny a B item request, how did
> a majority of the Council vote against removing the item from the
> agenda? (b) Article 8(1)(b) states that the outcome of voting must be
> "indicated by visual means", but no such indication was seen on the
> public video. Did we miss it, or was no vote called? (c) If no vote
> was called, how does this fit in the Council's Rules of Procedure?
>
> Q14: At the end of the session, the Presidency asked whether everyone
> agreed on the "other" A items. Does this mean the software patents A
> item was already voted on before? If so, when did this happen?
>
> Q15: Certain parts of the session were not public, e.g. the speech by
> Minister Brinkhorst. Why? In the recording of the English simultaneous
> translation, we can hear "Switch me off!" asked by a Council Member.
> Is it compliant with the Council's Rules of Procedure to switch off a
> microphone so that the public cannot hear what is said in a public
> deliberation?
>
> Q16: Can the Common Position be sent to the European Parliament and be
> presented there before the minutes are signed?
>
> Q17: What happens if a member state does not sign the minutes?
>
> Q18: Belgium and France attached unilateral declarations to the text
> on which a political agreement was reached in May, which is
> substantially the same text as on the Monday agenda. Why were those
> declarations not mentioned on Monday, and why have those declarations
> not been sent to the European Parliament?
>
> Q19: How many directives in the history of the Council had more
> unilateral statements attached to the formal approval of the Council
> in first reading than this one?
>
> Q20: Minister Verwilghen declared in the Belgian Parliament that no
> country asked for a B item. (a) Can you explain why the Presidency
> mentions the request from those 3 countries in his speech if nobody
> asked? (b) If those countries have really asked the presidency in
> private or informally, does this not go against the principle that
> this was a "public deliberation"? (c) How much of the "public
> deliberation" was not public, and at which point does it become a
> non-public deliberation with a short public overview of the end
> result? (d) Does this not go against at least the spirit of the
> Council's Rules of Procedure?
>
> Q21: The Rules of Procedure clearly state that a removal of an A item
> from the agenda, or changing it back into a B item, can be denied by
> "the Council". This means that so long as the Council makes sure it
> does not incite motions from 4 Parliaments and declarations of
> concerns from 9 member states (7 last Monday, 2 in May 2004) regarding
> its political agreement text, there is little chance of a request like
> that coming up and actually surviving a vote. As such, how can the
> Council Presidency justify denying the B item request based on
> "institutional reasons" and for fear of creating a precedent which
> will potentially delay all future Council work?
>
> Q22: Are full minutes made of the Council meeting? If so, in which
> formats (audio, steno, ...), and is it possible for the public to get
> access to that part of the minutes which corresponds to the public
> deliberations?
>
> Q23: How can a delegate express his wish to speak in an urgent matter,
> even when it's not his turn, for example to react to a surprising
> developement in the course of proceedings where he wouldn't be asked
> again normally ? Are there conditions when a delegate can not speak
> even if he wants to do so? Can the Presidency or anyone else turn off
> a delegates microphone, or interrupt the recording and public
> broadcasting in such cases ? Under what conditions would a delegate be
> allowed to do speak anyway to the Council in such cases ?
>
> Even if all interpretations of the Rules were done with the best
> intentions, possibly even in our interest without us understanding
> how, we hope you can see that this kind of creative rule
> interpretation does not encourage faith in the democratic functioning
> of the Council. It seems as if the whole Council meeting was just a
> rehearsed performance, that most of the "public deliberations" did not
> occur publicly at all and that even worse precedents have been set
> than those the Council was afraid of:
>
>  * The Council seems to put the speed with which legislation enters
>    into force above quality, even though it recognises the enormous
>    importance of this legislation.
>
>  * The Council implied that a political agreement is always final due
>    to "institutional reasons". Nevertheless, national Parliaments can
>    only review the final text subject of a political agreement after
>    said agreement has been reached, since this text can still be
>    changed at the meeting where the agreement is reached (as happened
>    in May 2004). As such, they will never be able to decide whether
>    they want to accept a Common Position adopted by the Council.
>
> We are not sending all these procedural questions to you because we do
> not like the text which came out of the Council's first reading. We
> are sad because of the democratic deficit surrounding the decision. We
> would much rather have seen an even worse text coming from the Council
> (in so far this is possible) with full democratic support, than a text
> which clearly forbids software patents using Monday's procedures. This
> is not about software patents, it is about respect for the foundations
> of European Democracy.
>
> Sincerely yours,
>
> The Board of FFII
> (Hartmut Pilch, Gérald Sédrati-Dinet, Laura Creighton, Jonas Maebe,
> Jan Macek, Holger Blasum, Alex Macfie)
>
> --
> Hartmut Pilch, FFII.org, Munich Office +498918979927, Brussels +3227396262
> Data Processing is not a Field of Technology        http://swpat.ffii.org/
> 380,000 Votes + 3000 CEOs against Software Patents  http://noepatents.org/
>
>
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