Conclusies Mededingingsraad: EU-standaard voor patenten van de baan, softwarepatenten, minimumstandaarden voor grensoverschrijdende dienstverlening, douaneregeling, harmonisatie financiële markten (en)

The Council noted that the necessary unanimity could not be found in support

of the Presidency's compromise proposal for a Council Regulation on the

Community patent. In these circumstances, the Presidency stated its intention of

referring this matter to the President of the European Council.

An agreement on the broad outlines of the Regulation was reached in March

2003 (see MEMO/03/47) and further progress was made towards overall agreement at

the November 2003 Council. However, a small number of points remain outstanding,

in particular on requirements for the translation of patents and on how

infringements of patents which might arise as a result of mistranslations should

be treated.

Recent calculations show that the Community Patent will cost no more than a

European Patent covering five countries. That would represent a cost saving to

around two-thirds (68 %) of all applicants for European patents, at least 30 000

granted patents a year. For full EU coverage the Community patent would cost

only 50% of a European patent for the 25 individual Member States - a saving of

at least €30 000 per patent over 10 years.

In addition to the lower costs, Community Patent holders would benefit from

far greater legal certainty, because disputes over interpretation would be heard

before a single Community Patent Court with pan-EU jurisdiction (see also

IP/04/137). A European Patent can currently be challenged in each and every

country in which it is valid, which can give rise not only to uncertainty and

potentially divergent interpretations but also to higher costs.

Commenting after the Council, Internal Market Commissioner Frits Bolkestein

said "If I were to say to you that I am bitterly disappointed at the

Council's failure today to agree the Community Patent Regulation, you

might say "We've heard this before". And you would,

unfortunately, be right. With regrettable regularity, a small number of Member

States have blocked this proposal by giving precedence to narrow, vested

interests rather than the broader interests of boosting Europe's

competitiveness by fostering research, development and innovation."

"But may I make clear that today's failure is despite the

extraordinary efforts of the Council President, Mary Harney, to find an

agreement."

"The Commission will now have to reflect carefully on its next steps.

All I can say is that all options are open, including withdrawal of the

proposal. After all, if there is no prospect whatsoever of Member States

agreeing this proposal, there is no point in keeping it on the Council's

table and going round in circles.

I am not saying the proposal will be withdrawn but that withdrawal will be

considered. We will have to think very carefully whether another proposal is

possible. The trouble is language. Some Member States say we should use just one

language, namely English, but one Member State does not agree to

that."

Answering questions on vested interests, Mr Bolkestein replied "In

various Member States, institutions and practices have become encrusted and they

wish to continue in the same way and don't wish to change. In this case,

there is opposition to change in two Member States in particular."

"The European Council will be apprised of today's fiasco",

he continued. "What is the point of the European Council asking three

times for the Competitiveness Council to agree the Community Patent, if it does

not do so? This is a lesson we should take to heart."

Proposal for a Directive on the Patentability of Computer Implemented

Inventions (JT)

The Council reached political agreement by qualified majority (with the

Austrian, Italian and Belgian delegations abstaining and Spain voting against),

on a common position concerning the proposal for a Directive on the

patentability of computer-implemented inventions (see IP/04/659). Once this text

has been formally adopted by the Council, it will be submitted to the European

Parliament for second reading.

The agreed text would establish rules for exclusions from patentability. In

particular, it makes clear that a computer program as such cannot constitute a

patentable invention and that a computer-implemented invention shall not be

regarded as making a technical contribution merely because it involves the use

of a computer, network or other programmable apparatus. Accordingly, inventions

involving computer programs, whether expressed as source code, object code or

any other form, which implement business, mathematical or other methods and do

not produce any technical effects beyond the normal physical interactions

between a program and the computer, network or other programmable apparatus in

which it is run shall not be patentable.

"Technical contribution" is defined in the text as a means a contribution to

the state of the art in a field of technology which is new and not obvious to a

person skilled in the art. The technical contribution shall be assessed by

consideration of the difference between the state of the art and the scope of

the patent claim considered as a whole, which must comprise technical features,

irrespective of whether or not these are accompanied by non-technical

features.

After the Council, Internal Market Commissioner Frits Bolkestein commented

"I am pleased that the Council has reached political agreement on the

proposed Directive on computer-implemented inventions. This Directive will

contribute to European competitiveness and assist the proper functioning of the

Internal Market. We must reward investment in innovation if a real

knowledge-based economy is to flourish in Europe. The Commission has always been

committed to making sure that patents in this field, as in any other, cannot be

used to squeeze out legitimate competition or to prevent others getting fair

access to technology and ideas. The text now approved achieves that balance and

I very much hope the new European Parliament will be able to approve it

swiftly."

Proposal for a Directive on the Recognition of Professional Qualifications

(JT)

The Council reached political agreement by qualified majority (with Germany

and Greece voting against), on the proposal for a Directive on the recognition

of professional qualifications. Once this text has been formally adopted it will

be submitted to the European Parliament for second reading. Discussions focused

on the issue of cross-border provisions of services on a temporary and

occasional basis, and in particular on the declaration requirements to be made

in advance if the service provider moves from one Member State to another.

It was agreed that Member States may require that, where the service provider

crosses internal market borders for the first time in order to provide services,

he shall inform the competent authorities in the host Member State in a written

declaration including information concerning insurance cover or other means of

personal or collective protection with regard to professional liability. Such a

declaration shall be renewed once a year if the service provider intends to

provide temporary or occasional services in that Member State during that year.

The service provider may supply the declaration by any means. Member States may

require that the declaration is also accompanied by the following documents:

• proof of the nationality of the service provider
• an attestation certifying that the holder is legally established in a Member

  State for the purpose of practising the activities concerned

• evidence of professional qualifications
• any means of proof that the service provider has practised the activity

  concerned for at least two years during the previous ten

  years.

Speaking after the Council, Commissioner Bolkestein said

"Persuading Member States to get rid of barriers within the Internal

Market is a bit like pulling teeth - it's a bloody business and painful.

In the end, the result is there. In some respects, it is disappointing but it is

acceptable."

Community Customs Code (JT)

The Council reached political agreement by qualified majority (with Greece,

Italy, Malta, Portugal and Sweden voting against), on the draft common position

on the proposal for a Regulation amending Council Regulation establishing the

Community Customs Code. Being formally adopted, this text will be submitted to

the European Parliament for second reading. The Commission's proposal,

presented in July 2003, aims to improve security at the external borders, while

facilitating trade through simplified procedures and the use of information

technology (see IP/03/1100). In this context, the main feature agreed upon

regards the concept of an Authorised Economic Operator (AEO). An AEO would

benefit from facilitated customs controls relating to safety and security and/or

from simplifications provided for under customs rules throughout the

Community.

Proposal for a Directive on Services in the Internal Market (JT)

The Presidency submitted a note on the state of play regarding the ongoing

examination of the proposed framework Directive on Services in the Internal

Market highlighting the complexity and sensitivity of some of the issues

involved. The examination of this file in the competent Working Party is still

at an early stage and therefore no debate is foreseen in Council at this

time.

Commissioner Bolkestein told the Council "The Commission is well aware

of the on-going debate on the Services proposal in certain Member States. It is

quite right that such an important proposal should be the subject of wide

consultation and discussion. However, in some cases, the debate appears to be

influenced by interpretations of the Directive which are inaccurate. The

Commission is therefore very much engaged in clearing up these misunderstandings

so that the negotiation can focus on the real issues. I am confident that the

constructive discussion which is taking place in the Working Party on

Competitiveness and Growth will allow a better understanding of the

Commission's proposal. The Commission is calling for a rapid, thorough and

balanced negotiation on this key proposal, which is aimed at improving the

competitiveness of the European economy, creating more and better quality jobs

and raising the living standard of every EU citizen."

Regulation on Sales Promotions (JT)

In the light of opposition from several Member States to the Presidency

compromise text, the Council decided to instruct its preparatory bodies to

further examine the proposal for a Regulation concerning sales promotions in the

Internal Market in order to agree on a common position at one of its future

sessions. The proposed Regulation would remove barriers to cross-border sales

promotions caused by divergent national rules on discounts, premiums, free

gifts, promotional contests and promotional games (see IP/01/1351).

ITER (FF)

European Research Commissioner Philippe Busquin presented the state of play

of negotiations on the ITER nuclear fusion project. The Council welcomed the

Commission's efforts towards successfully concluding such negotiations

with ITER international partners. The Council also invited the Commission to

push negotiations forward with a view of building ITER at the European candidate

site of Cadarache in France.

Visas for third countries' researchers (FF)

The Council welcomed the Commission's proposals in this field, aiming

at facilitating entry and movement of researchers from non-EU countries in the

EU. The Presidency expressed its intention of forwarding the remarks made by the

Competitiveness Council to the Justice and Home Affairs Council of Ministers.

The Council addressed inter alia the issue of host organisations, welcoming

researchers in the EU, with a view to avoiding additional and needless

bureaucratic procedures for such organisations.

Future of EU research (FF)

Commissioner Busquin outlined the main guidelines of the future of EU

research, paving the way for the publication of a Commission Communication on

this issue at the beginning of June. In the context of the Dutch Presidency, the

Communication and its blueprint for the future of EU research should be

addressed at a workshop in the Netherlands on July 2-3.

Competitiveness, Innovation and Better Regulation (PS)

The Council had a wide ranging debate on competitiveness. The

Commission's Communication on an industrial policy for an enlarged Union

was taken as a good starting point for discussions, and its analysis of the

risks and challenges for industry deindustrialisation and challenges for Europe

was welcomed.

Particular emphasis was placed on the investment in research and innovation,

the new importance attached to impact assessment, steps to achieve a better

regulatory environment, the importance of tailoring policy responses to the

needs of specific sectors, the role of SMEs and, finally, the importance of the

biotechnology and life sciences sector.

REACH (PS)

The Council took stock of progress on the Commission's proposals to

overhaul the way chemicals are registered, evaluated and authorised in the EU.

The overall approach of promoting an innovative chemicals sector and ensuring a

high level of protection for health and the environment was welcomed. Discussion

focused on three issues: the conditions for registering chemicals, the

obligations placed on operators as regards their duty of care and the role of

the future chemicals Agency. Council agreed to look more closely at each of

these and invited Member States to work out specific proposals on these issues

in greater detail, so that discussion could be taken forward under the Dutch

Presidency.