Put Parliaments in Charge of Lawmaking

[PILCH Hartmut <phm@a2e.de>]

At

        http://a2e.de/ffii/epla/cpedu/parl/

I have developped some reasoning to support a request in a draft Call To
Action.


Here's a copy for perusal and possible debugging/discussion on this list.
Otherwise you may want to join the workgroup

          http://action.ffii.org/eupat

that works on the counter-proposals to the current EPLA bandwagon.

As you can see from the first news item at

   http://a2e.de/ffii/epla/

the epla bandwagon has recently regained some steam, and the call to restore
parliamentary democracy in Europe may seem a bit over-ambitious, not an
immediate enough remedy for the near fire.  Yet, thinking this through over
and over again, I can't find much of a solution for "democratic control" and
"judicial independence" (two EP key demands) without very far-reaching reform,
and that is probably also the reason that the Venice Judges recently ignored
these two demands (and even the third one, "litigation costs"), and just
pressed ahead quickly to provide a draft "rules of procedure for the EPLA
court". 

Below is the reasoning on parliamentary review of European central court
caselaw.

---

# title: Put Parliaments, not Courts in Charge of European Lawmaking
# descr: All statutory laws and rules applied by any new European judicial 
institutions must directly be subject to review by elected legislators; the 
signatory states should transfer the related legislative power to the 
European Parliament, while assigning veto rights to a quorum of national 
parliaments.  We explain why this is necessary and how it works.
# url: http://a2e.de/ffii/epla/cpedu/parl


 - The European Union produces large amounts of bad laws laws, characterised 
by
   - clumsy, ambiguous language, difficult for courts to interpret
   - conflicts with constitutional principles of the member states, leading 
to partial rejection by constitutional courts
   - orientation toward special interests and hidden agendas
 - This is so
   - The laws are negotiated by diplomats and civil servants behind closed 
doors.
   - The diplomats look for formula compromises, at the expense of clarity.
   - The civil servants tend to be receptive to powerful lobby groups who 
strive to strengthen monopolies for their own benefit.
   - Most national parliaments do not have any real influence on the 
behaviour of their country in the legislative organs of the European Union.
   - The European Parliament has very limited power.  Its role is usually 
that of adding to the bloat of legal texts by means of cosmetic amendments.  
When it disagrees with the civil servants, all it can do is to block a 
directive, while the civil servants still have the option to pursue the same 
legislative goal by other means.
   - The European Union is systematically used by national ministries as a 
means of circumventing their own parliaments, also called "legislative 
laundering"
 - The European legislative process is bulky and inefficient.  This leads to 
a de facto transfer of legislative functions to other fora, such as courts.
   - The European Commission is openly advocating the creation of a European 
Court as a means of "harmonizing the rules of patentability", i.e. as a 
replacement for the software patent directive which it failed to push through 
the European Parliament.
   - The independence of national high courts is really the only remaining 
corrective against the usurpation of legislative power by the judiciary 
(which, in the case of the European patent system, lacks independence).
 - The European Patent Organization creates laws by means of diplomatic 
conferences.  This process suffers from the same flaws as the process of EU 
lawmaking (i.e. domination by unelected lawmakers, inefficiency, bulkiness, 
weakening of the legislative function), but is better in one sense: the 
national parliaments are still free to reject the result of the negotiations.
 - The bandwagon of the Europeanisation of the judiciary, in particular the 
patent judiciary, is continuing to roll.  Politicians, "industry" and media 
continue to be seduced by the gains in efficiency that a centralised European 
judiciary is assumed to bring.
 - Under these circumstances we need to think about creating an efficient and 
independent elected legislative power at the same level, i.e. that of Europe. 
 When the European Court develops new rules (e.g. decides that program claims 
are acceptable), there will be an elected and effective legislative 
institution that can review these rules and pass laws to correct them.
 - In the draft EPLA treaty, the treaty's signatory states assign judicial 
power to a supranational court, for the sake of efficiency.
 - In the same way, the signatory states could assign legislative power to a 
supranational parliament.
 - Because of the problems described above, it is not a good idea to assign 
legislative power to the EU.  The EU's design is broken, with or without the 
new constitution.
 - However, there is a way in which the EU institutions could be used by the 
EPLA++ treaty.
 - The European Parliament would serve as the upper chamber of the EPLA 
parliament.  It would not be the European Parliament as such, just the 
European Parliament acting in the function of the legislative organ of the 
EPLA treaty.
 - A certain quorum, probably less than 50%, of citizens represented by their 
national parliaments, could thus jointly veto a decision by the European 
Parliament.  The citizens of Switzerland, who are not represented in the 
European Parliament, would have double weight in this forum.
 - The Council could serve as a body of emissaries from the national 
parliaments.  They would non-bindingly advise the European Parliament to 
adopt certain changes, so as to avoid a later rejection vote by the national 
parliaments.
 - In this way, the member states would retain all the sovereignty that they 
retain in the current European Union.  Compared to the EPC or draft EPLA 
treaty, they would lose the right to reject a revision unilaterally.  However 
the peoples of the member states would gain the right to collectively 
determine the rules through elected intermediaries, and thus in reality gain 
in sovereignty.
 - The European Union itself is an accumulation of disparate treaties.  
Rather than consolidate these treatise into one and thereby create an new 
state-like moloch with a life of its own, the member states should, by means 
of accumulation of further treaties on special areas such as patent law, try 
to improve the current structure.  
 - One might ask if deepening of European integration is needed at all.  But 
if it is needed, and the push for EPLA implicitely affirms that it is needed, 
then accumulation of new treaties that create democratic legislative overview 
at the European level is the way to go.

--
 Hartmut Pilch                            http://a2e.de/phm
 Vice president of the FFII               http://a2e.de/ffii
 Protecting the Knowledge Economy from Legal Over-Regulation