Polish U-turn threatens decision-making

By Dana Spinant

Date: 24/02/05

The row over the directive on the patentability of computer-implemented inventions has raised questions about the vulnerability of the EU decision-making system, which relies on gentlemanly agreements between member states' ministers.

Although ministers reached an accord on the draft directive in May 2004, the formal adoption of a common position, which normally means just rubber-stamping the agreement's text translated in all official languages, has been held up. It has been delayed three times, following a volte-face from Poland, which dropped support for the agreement, and a request from the European Parliament that the European Commission re-submit its proposal so that the legislative process can start again from scratch.

The Commission looks set to ignore Parliament's demand and Luxembourg, holder of the EU presidency, has announced that it will continue to seek agreement on the directive, which will be on the agenda of the 7 March meeting of the Council of Ministers.

It is not yet clear whether it will be on the agenda as an 'A' point, to be adopted without discussion, or a 'B' point, open for ministers to debate. Nicolas Schmit, deputy foreign minister of Luxembourg, says that "in principle" it will be an 'A' point. But he admits that "the context is complicated". The text agreed last May would, he says, "only be on the Council's agenda if it was clear that there would be a qualified majority in favour".

"We have to see if the qualified majority stands or if the doubts which appeared in a number of countries, which were initially in favour, mean that there is no qualified majority for it," he says.

Officials say that the Netherlands, France, Latvia, Slovakia and Slovenia are also having second thoughts about the compromise they had signed up to, but it remains to be seen whether they will drop official support for it.

The facts

During the first reading of the draft directive by the Council, the Polish minister abstained from the vote that took place on a compromise put forward by the then Irish presidency. The presidency then observed that there was a qualified majority in favour of the proposal. While the text was being prepared for signature, the Poles contested the compromise. "They said that it could not be adopted since they had abstained," one Council insider says. "We had to explain to them that an abstention could not prevent a decision from being taken, if there was a required majority for it."

Officials from the Council's secretariat told the Polish delegation that a change of vote was not acceptable, as this would be "dishonest", one says.

Poland said it would attach a declaration to the text explaining its concerns about the patentability of computer-implemented inventions. Pending the filing of the declaration, which was submitted this month, the vote on the common position was postponed twice.

Parliament's political leaders then asked the Commission on 17 February to re-submit its proposal and allow the assembly to vote again on it in a first reading.

Consequences

A senior Council official says: "The whole system is based on political agreements because of translation constraints. Texts cannot be signed when they are agreed upon, and it will always be like that since the Union operates in so many languages. If we break political agreements, the system will stop working."

Schmit admits that it could be a dangerous precedent, in so far as it complicates the decision-making system, by introducing an element of uncertainty".

The ambassador of one of the EU's founding member states echoes this view and adds that "it is rare and not desirable" that a member state changes its mind on an issue. "Loyal co-operation is an important principle of EU law that we have to respect." But he admits that a government is only bound to an agreement when the minister has signed it. "We cannot force them to accept the political agreement. We cannot bring governments before the court of justice for such a thing. We have to rely on trust."

While acknowledging that a volte-face is "against the unwritten rules of the system", a Parliament official plays down its significance for the future. "If Poland or another country changes its mind now, this debate we are having will send the signal that this is in fact not acceptable, so it is less likely that it will happen again. It may have the opposite effect to what people fear," he says.

Another official points out that it is not unusual for member states to change their minds on political agreements that they previously backed, but they normally use "more subtle ways" of doing so. "They normally work with the Parliament and make sure that they build support for their new position among MEPs," he says.

The row over the directive on the patentability of computer-implemented inventions raised questions about the vulnerability of the EU decision-making system, which relies on gentlemanly agreements between member states' ministers. The controversial Directive was stuck in the legislative process after Poland after previously abstaining, had blocked its adoption twice in the Council on the grounds that it wants to protect its small businesses.

• Primary Source

European Commission: DG Internal Market: Industrial Property: Patentability of computer-implemented inventions http://ec.europa.eu/comm/internal_market/en/indprop/comp/

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