WRITTEN QUESTION E-3927/02 by Graham Watson (ELDR) to the Commission. Patenting of software.
Date: 2003-01-15
Institutions: European Parliament, Provisional data
Subjects: approximation of laws, copyright, patent, patent law, software

C 242 E/82

Official Journal of the European Union

EN

9.10.2003

Regarding the possible violation of fundamental rights in a Member State the situation is the following:
Although it is the duty of the Commission to ensure observance of Fundamental Rights in the field of
Community law, it has no power to examine the compatibility with the European Convention of Human
Rights of national legislation and practice lying outside the scope of Community law. This is derived from
the case law of the Court of Justice (inter alia, in the cases Demirel, Wachauf and E.R.T.) and reflected in
Article 51(1) of the Charter of Fundamental Rights of the European Union.

The Commission has no competence to intervene in decision of Members States regarding the handling of
extradition requests from third countries, such as the case of Mr Khemais Toumi from France to Tunisia.
The competent authorities of the Members States deal with these cases.

Furthermore, if Mr Toumi would have applied or would apply for asylum in France, it has to be stressed
that there are no Community provisions, based on Article 63 of the EC Treaty, in place yet. In particular,
the two proposals for a Directive on minimum standards for asylum procedures and for a Directive on the
qualification as a refugee or as a person otherwise in need of international protection are still under
negotiation in the Council. At present there is, therefore, no Community law in place that would enable
the Commission to make inquiries about individual asylum and immigration cases and, therefore, there is
no power to intervene on that basis with the French authorities.

(2003/C 242 E/086)

WRITTEN QUESTION E-3927/02

by Graham Watson (ELDR) to the Commission

(15 January 2003)

Subject: Patenting of software

What can the Commission do to ensure that its proposals for the patenting of software do not deprive
internet users of the benefit of superior applications and operating systems developed through ‘free’ and
‘open source’ software?

Answer given by Mr Bolkestein on behalf of the Commission

(11 February 2003)

Computer software as such is excluded from patentability under the European Patent Convention and the
laws of the Member States, and the Commission has no intention of changing this situation.

Thus, the Commission’s proposal for a Directive on the patentability of computer-implemented inventions
made in February 2002 (1) is not intended to extend the scope of what may be patented. Rather, what it
sets out to do is to establish uniform rules for patent offices and courts to follow in assessing the
patentability of inventions involving apparatus or methods which involve the use of computer software.
This is necessary because, while the Member States are bound by the European Patent Convention, it is not
currently part of Community law, and in practice it is not always the case that the respective national laws
are uniformly interpreted, especially on specialised points of detail.

A directive that does not change the overall balance of what is or is not patentable will not deprive
internet users of anything they might otherwise have been able to enjoy. However, both users and
developers of computer software, whether it be supplied as ‘free’, ‘open source’ or under any other business
model, should experience the benefits which will arise from the increased legal certainty and uniformity of
practice that the directive should bring.

Certain of the amendments which have been discussed in the course of consideration of the proposal in
the Council would produce still greater legal certainty by defining more precisely what subject-matter
should be excluded from patentability on the grounds of making no technical contribution. The
Commission has indicated that
it would consider these amendments in the course of the ongoing
negotiations.

9.10.2003

EN

Official Journal of the European Union

C 242 E/83

There is moreover an important safeguard for software developers in Article 6 of the proposal, which will
have the effect that the exercise of patent rights cannot interfere with the exceptions which are provided
under Council Directive 91/250/EEC of 14 May 1991, on the legal protection of computer programs (2) by
copyright in connection with the purpose of achieving interoperability.

Finally, according to Articles 7 and 8 of the proposal, the Commission is called upon to monitor and
report to the Council and Parliament on the impact of computer-implemented inventions on innovation
and competition both in Europe and internationally. This provision, which is cast in terms broader than
mere consideration of the effects of the directive, provides a valuable mechanism for responding to
unforeseen future developments in this sector.

(1) OJ C 151, 25.6.2002.
(2) OJ L 122, 17.5.1991.

(2003/C 242 E/087)

WRITTEN QUESTION P-0010/03

by Alexander de Roo (Verts/ALE) to the Commission

(10 January 2003)

Subject: European Water Authority

Member States are faced increasingly frequently with high water levels and flooding of rivers, particularly
the Danube, Elbe, Meuse and Scheldt.

This problem can be partially explained by the absence of an overall water management body. Such a
body would not be concerned primarily with the quality of the water. Considerable progress has been
made in that area in the past few decades, particularly in the form of the Water Framework Directive
(2000/60/EC (1)), which comes into force on 22 December 2003. This EU law states only (Annex I) that
the water quantity must be registered, but not that it must be regulated.

international water control bodies, such as the Rhine Commission and the Danube
Alongside this,
Commission, already exist. However, the existing international water management bodies have no powers
as regards the management of water quantity. In managing the quantity of river water, too many of the
bodies responsible at regional and national level pay too little attention to creating natural retention areas,
with careful management of forelands and a sustainable policy for embankments. This neglect often has
devastating effects on downstream rivers, as we experienced in 2002 in the case of the Elbe and Danube,
and as happens almost every year in the case of the Rhine, the Meuse and the Scheldt.

Does the Commission agree that management of the water quantity in the basins of rivers that flow
through more than one country is a cross-border problem that can only be effectively dealt with at
European level?

Is the Commission prepared in the short term to investigate whether there is an appropriate legal basis in
the European Treaties to establish a European authority for the basins of the major cross-border rivers,
beginning with the Elbe, Rhine, Meuse and Scheldt, with a view to addressing the cross-border problem of
water quantity?

If the existing laws and regulations do not, in the opinion of the Commission, provide an adequate basis
for this, is it prepared to state what steps it believes must be taken to create a legal basis which does make
it possible to tackle cross-border issues of water quantity in the major European rivers?

(1) OJ L 327, 22.12.2000, p. 1.