No More Qualified Majority for Software Patents in EU Council

["Florian Mueller" <florian@mysql.com>]

No More Qualified Majority for Software Patents in EU Council
After Today's Change of Voting Weights of EU Member States

NoSoftwarePatents.com publicizes analysis on its campaign website – Campaign
manager demands a formal vote, opposes debateless and voteless adoption of
legislative proposal – Polish abstention was irrelevant in May, is decisive
as of now

Munich, Germany (1 November 2004).  The NoSoftwarePatents.com campaign today
published an analysis according to which a legislative proposal for an EU
directive on software patents lost its qualified majority in the EU Council
on this first of November, due to a change of the voting weights of the
members states of the EU.  The analysis is available on the World Wide Web
at: http://www.nosoftwarepatents.com/docs/041101qm.pdf

With the voting weights that took effect today under article 12(1) of the
Act of Accession, the 20 countries that supported the legislative proposal
on 18 May fall short of a qualified majority by 16 votes.  The political
agreement of 18 May is not legally binding until the proposal is formally
adopted, and the EU Council is widely expected to attempt to do so in a
meeting of the EU Competitiveness Council on 25 and 26 November.

The content of the proposal is under heavy criticism.  Reputable
institutions such as Deutsche Bank Research and PriceWaterhouseCoopers urged
European leaders to reconsider a draft legislation that would potentially
expose all publishers and users of standard computer software to the risk of
patent litigation.  On 1 July, the parliament of the Netherlands passed a
resolution that the Dutch government withdraw its support of the proposal,
and all four groups in the German parliament took similar positions in a
debate on 21 October.  If the EU Council were to adopt that proposal as the
so-called common position, then it would go to the European Parliament for a
second reading.

Campaign manager Florian Müller made an appeal to the governments of the
member countries of the EU not to adopt the proposal without a formal vote,
and urged them "to prove the existence of a true, valid, verifiable and
legitimate qualified majority".  He said that the political agreement
reached in the Council on 18 May "became null and void today because the
formal adoption by the Council, which is its only binding act, had not
occurred in 5 ½ months during which the old voting weights were still in
effect".

The Polish representative in the EU Council meeting on 18 May subsequently
declared on a government website that he had only refrained from reiterating
the Polish abstention because it was irrelevant due to the voting weights at
the time:
http://www2.ukie.gov.pl/WWW/en.nsf/0/76DA032444747675C1256E9F0044B4F4

"This is an unpredecented situation", Müller wrote in his analysis.  "A
qualified majority, based on the problematic approach of 'qui tacet
consentit' ['silence implies consent'], has not stood the test of time due
to a change of voting weights."  The notion of silence equating consent is
generally uncommon in today's legal systems, however, article 16 of the
"Working Methods for an Enlarged EU Council" states that "silence will be
taken as agreement in principle".

In this particular case, the silence of the Polish delegation was not an
expression of agreement.  It was merely a practical decision under the
circumstances.  However, those circumstances changed today, and it was not
foreseeable on 18 May that the formal adoption would take place under a new
set of voting rules.

About the Campaign

The NoSoftwarePatents.com was launched in 12 languages the week before last.
Its objective is to prevent the legalization of software patents by the
European Union.  The campaign is supported by IT companies 1&1
(www.1and1.org), Red Hat (NASDAQ:RHAT, www.redhat.com), and MySQL AB
(www.mysql.com). The views expressed by the campaign are those of the
campaign manager and not necessarily those of the corporate partners.

Further information on the campaign and its manager is available on the
Internet at www.nosoftwarepatents.com.

Contact Information

Florian Müller
SWM Software-Marketing GmbH
Starnberg, Germany
press@nosoftwarepatents.com