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, Gιrald Sιdrati-Dinet, Laura Creighton, Jonas Maebe,
Jan Macek, Holger Blasum, Alex Macfie)