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Consultation on the future European Union (EU) – United States of America (US) international agreement on personal data protection and information sharing for law enforcement purposes.

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Quick notes: Today the Spanish minister is grilled over SWIFT in LIBE.

MEP Albrecht for instance stressed an alleged incompatibility of the prolonged agreement with the national constitutional order without getting into details, obviously he has a scrutiny process in mind. Council statement a “nonsequi” another member said and highlighted a contradiction concerning SWIFT adoption, that on the one hand Parliament has to be heard but on the other hand member states argue  parliament intervention may not effect the agreement conclusion.

All of the members seem to be pretty upset about the Council take on SWIFT. My notes on the second minister response:

The Council decided on the substance of Swift.

On the decision substance..

Perview of parliament

Period of change

Extending something which already existst

SWift is under restructuring.

Information from North American can not be given, prior

No itention whatsoever of extracting information.

2 question

30 Nov deadline legal base to maintain of that system, just extentions
under international law impossible to postpone because unilateral decision

this parliament would decide

security and data protection in particular.

in line with charter

time to get information, listen to experts, solid alternative, only intention behind.

NO decision on the substance, No change to status quot, just extention, this parliament will decide.

Highlevel-WG set up between EU and US, soon reports.

Aware of concerns data protection

Has to be debated HERE in the chamber.

Experts telling SWIFT measures very effective in fight against terrorism.

Apparently still no one seems aware of the “business espionage” toxic mix concerning SWIFT data.

A few quick questions that come to my mind:

  • members of US-EU HLG?
  • legal base of US-EU HLG = really a “HLG” in the Com sense?
  • Presidency aware that SWIFT is non-governmental?
  • “extention” in what way?

A rapporteur is assigned for SWIFT (MEP Hennis-Plassaert), PNR (MEP in ‘t Veld, ALDE) etc. LIBE will write to the Legal Service in a fast-track procedure on the substance of SWIFT

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A European Commission consultation wants interested parties (“you”?) to contribute:

This consultation seeks to strengthen and deepen the Commission services’ understanding of the way forward to promote uptake of electronic invoicing within the EU. The objective of this consultation is to collect stakeholders’ reactions on the recommendations proposed by the Expert Group on e-Invoicing in the areas of business requirements, legal framework, interoperability and standards, as well as the proposed approach for implementation and communication.

The EU Commission provides the final expert group report and a consultation document. Unfortunately it is only available in the English working language, not in French, not in German.

Deadline for submissions is end of next month, 26 February 2010.

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The European Union is criticized for many reasons and subject to demagogic projection (and defense). One of the most profound constructive criticism of the European Union was communicated Roman Herzog and Lüder Gerken a while ago. Now they are back and another co-author entered the team, the controversial former Commissioner Frits Bolkestein.

Frankfurter Allgemeine: „Die EU schadet der Europa-Idee“, Roman Herzog, Frits Boltkestein und Lüder Gerken

In the European lawmaking process the multi-level compromise, the polyarchic institutional character is fiercely criticized which resulted in superfluous regulation and unbalance of order policy. Equally fiercely upheld is the principle of subsidiarity by the authors. The European Union had to regain lost confidence with citizens.

Another field of criticism is the inability of national representations to stop intervention in policies such as university regulation (which are not even subject to federal competence in Germany). They also argue against the light bulb regulation, and prefer the academic emission trade schemes. Another shot is aimed at the lack of a normative individualism conception in consumer policy, in other words paternalism.

Conclusion

Gerken/Herzog still argue from an ordoliberal standpoint against the current practice. Gerken’s contributions remain the most beneficial offers for the EU criticism market. At times their views are academic and unpragmatic. It seems to me that the EU state of affairs challenges us to refresh ordoliberal teachings. What may appear dull sermon on the national level, becomes an antithesis to the current European practice, ultimately such a weltanschauung would help to overcome overlooked and crucial governance problems.

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Parliamentary questions
15 December 2009
E-6260/09

WRITTEN QUESTION by Hans-Peter Martin (NI) to the Commission
EU Commissioners are increasingly reporting about the influence of the hunting lobby in Brussels.
Which invitations to go shooting have they received since 2006? How many Commissioners have taken part in shoots since 2006 without paying the full cost themselves?

E-6260/09FR
Réponse donnée par M. Barroso
au nom de la Commission
(05.01.2010)

La Commission ne dispose pas d’information concernant les loisirs des Commissaires et leur participation éventuelle à des activités de chasse.

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Between 11 and 19 January, the European Parliament will hold a series of public hearings with the 26 candidate Commissioners put forward by the Council and Commission President José-Manuel Barroso. The “Commissioners-designate” will face three hours of questioning by MEPs sitting on the committees relevant to their proposed portfolios. They will be evaluated on their specific knowledge and competence in their field, including their European commitment, their independence and their communication skills.

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Admitted, I trust him. Dr. Paul Rübig is a great MEP from Austria, where he represents the Austrian Christian Democratic party (ÖVP) in the Industry committee. I know him as a fierce and passionate supporter of small and medium sized companies and European entrepreneurs.

Admitted, counterfeiting of goods is a problem for the European Union. Though references to the scape goat nations shift: when the first enforcement directive was in Parliament “Eastern European” counterfeiters took the blame. Now the Eastern European problem seems to have vanished and other “hordes” are said to threaten us and have to be fought on the beaches. How on earth does all this relate to ACTA? Listen to Dr. Rübig:

We have to consider what the superficiality does to our political culture. Cheap enemy advocacy schemes used by the Commission and lobby stakeholders fire back on conservative values, and lead to the kind of brainstorming we witness in the video. What do we expect when a person from the DG Trade makes his arrogant jokes on China?

Who educates the educators? Commission officials know very well that patents are strictly territorial and a national patent from Europe does not discriminate by the origin of a patentee, that would be against WTO non-discrimination principles we try to get respected abroad, also in the Chinese export markets. Patent enforcement is about our domestic market and order rules. Why do they suggest something else to our representatives? Why do these professionals assist our politicians with sloppy arguments?

Single Market Patent

At the same event Margot Fröhlinger from DG Market made a valid argument for the Community Patent (which has been stifled by patent office egoism for over 40 years): When you import a product from China to Europe, a patent has to be applied for by the European inventor in the import nation to stop the freight at the port from entering the single market.

What she did not clarify was that it is perfectly legal to import a good to e.g. the Belgium market (or manufacture it there) when patent protection is only granted for in Germany. In other words a “counterfeit good” in Germany can be perfectly legal elsewhere in Europe. The Chinese import becomes a German “counterfeit good” when it is further exported to the German destination market where the patent applies.

And here is the problem: We have a single market, we reduced border and customs protection, we have a community trademark but no single “community patent”. The EU-Commission can simply propose a directive to harmonize substantive patent law first, and then propose a “community patent” . Instead they chose the technically difficult way to make the EU a branch of the European Patent Convention, so that MEPs like Rübig have no control over future patent law, and then add a community patent as a designation for an European one. That path merely serves institutional interests from Munich.

ACTA and the global trading of legislation

ACTA goes one step beyond. Under the “Global Europe” strategy we enforce our laws abroad and cement the legal enforcement order of the Western industrial nations. In a first step European democracy and flexibility suffers and additionally we get “policy laundry” via trade talks. Most ACTA provisions relate just in a small subset to Counterfeiting where Europe has already the necessary measures in place. Rather European legislators would castrate themselves to put very controversial new internet rules etc. in place, based on preconceptions from trade officials, negotiated in secret.

Trade administrations advocate maximalist policies without any sensitivity to the difficult legal questions, industry needs or broad debate, build upon the TRIPS “minimum standards” sin fall of  trade policy they chose the trade framework to de-facto legislate in secret. No more “free trade” but trading and exporting laws without any respect for the sovereignty of the foreign and domestic legislature. I am pretty sure the Commission lacks formal competences for legislative aspects under the EU treaties which bind its mission to a “free trade” objective.

A global “market for regulation” (Ashton), the use of trade instruments for global policy making  does heavily fire back on the nascent European Union level democratic rule which would be enhanced by a global trade agreement regime pushed by trade adminstrations: “Liquid concrete”, as you know it tends to be anything but liquid. We known the arguments for soft patenting or against adjusting the patent protection terms to market dynamics: TRIPs alleged obligations cement our flexibility, reduce the flexibilities of European legislators to set better/different rules.

Trade negotiations are based on escalation… ACTA implementation would go beyond agreed measures… We have bilateral further forum shopping… etc. etc. etc.

Trade-off

Both a non-EU European Patent Office regime for a community patent and global legislation via trade agreements “cement” challenge democratic governance in an unprecedented way. In fact they lead to a situation where no legislator on the EU level is actually able to govern anymore. Finally a more powerful China may use such trade instruments to trade market access for human rights, and impose laws and regulation on us which serve Chinese interests.

Let me add another very dangerous governance aspect. Trade negotiations as a process were designed as a one-way street to dismantle trade barriers under the premise of free trade, that abolishment of trade sanctions and mutual reduction of tariffs is always beneficial. Of course that does not apply to legal standards which ought to be balanced in a policy mix.

Parliament is known to be perfectly qualified, in its variety of the MEPs from all over Europe and all partisan groups, to reach a good approximation of the public will, and following a broad and at times noisy process they reach a fruitful and balanced outcome. Trade officials and Commission technocrats would fail that objective by definition. Their decisions are based on institutional bias and preconceptions of their domain. Parliamentarian democracy is not perfect but alternatives do not look better. Democrats are willing to accept outrageous views of MEPs because there won’t be a single point of failure. We fully trust the process to add balance and reason. Let us hope our MEPs will get stay in charge.

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Luc Devigne von der Generaldirektion Handel der Europäischen Kommission wird von AUMA der Hinweis zugeschrieben, dass 80 % der nachgemachten Produkte auf dem Weltmarkt nach einer Studie der EU-Kommission aus China stammen.

Herr Luc Devigne, Leiter des Bereichs geistiges Eigentum bei der Generaldirektion
Handel, sprach über die grenzübergreifende Durchsetzung von Rechten am geistigen Eigentum auf Messen. Ergebnis einer von der Kommission durchgeführten weltweiten Studie ist, dass 80 % der weltweit rechtswidrig nachgeahmte Marken und Produkte aus China stammen. Daher seien Verhandlungen mit China ein wichtiger Schritt zur Lösung des Problems.

Es wäre interessant, ob in dem Jahr sich etwas verändert hat.

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Here is another EU Website ECHA.europe.eu, the European Chemicals Agency. They were smart enough to copy/paste a standard text as if they were a private company and not a public authority:

Site usage information

This website uses Google Analytics, a web analytics service provided by Google, Inc. (“Google”). Google Analytics uses “cookies”, which are text files placed on your computer, to help the web team analyse how users use the site. The information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored by Google on servers in the United States.

Google will use this information for the purpose of evaluating your use of the website, compiling reports on website activity for website operators and providing other services relating to website activity and internet usage. Google may also transfer this information to third parties where required to do so by law, or where such third parties process the information on Google’s behalf. Google will not associate your IP address with any other data held by Google. You may refuse the use of cookies by selecting the appropriate settings on your browser, however please note that if you do this you may not be able to use the full functionality of this website. By using this website, you consent to the processing of data about you by Google in the manner and for the purposes set out above.

Cookies do not contain any personal information about you and cannot be used to identify an individual user.

I wonder how a public authority can make a company use the traffic information of its visitors for commercial analysis purposes. So in other words, a European Union body allows a company from a third nation to record traffic data, to spy on the use of its government websites and hand it out to third nation authorities. That does qualify as a kind of assistance of espionage by the responsible Executive Director Geert Dancet for the European Chemicals Agency. “By using” an European Unions website, citizens consent to the processing of data about them by Google. And if citizens explicitly disagree with the use of their traffic information they “may not be able to use the full functionality of this [EU] website”.

Keep in mind that the European Chemicals Agency deals with very sensitive issues such as REACH which were subject to confrontation in transatlantic trade talks: The European Chemicals Agency (ECHA) manages the technical, scientific and administrative aspects of the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) system. ECHA is sited in Helsinki, Finland.

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