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.
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.
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.
Quick and hasty update. Today I finally got an answer from the European Commission concerning my confirmatory request for document access. As expected it was denied. Basically I contested several arguments and the reply did not get much into details. For quite some time I am interested in document access regulation and the tricky questions on how to draw the line.
As a result of my request, a document was “released”. A few days ago the FFII association launched a twitter joke related to that document:
From a mere citizen perspective in a liberal-democratic order I feel slightly scared by the secrecy and policy laundry from DG Trade. It explains why TRIPs as a trade process was a very dangerous precedent. A huge scandal is characterized by the amount of complaints. Can there be a scandal without notice and uproar? We don’t have a good phrase for the silent case. While the interested public now pays closer attention to ACTA it is of course all negotiated in parallel with bilateral talks, for instance the Korea-EU Trade Agreement comprises ACTA provisions. The usurpation of legislature by trade administration is a generic weakness of our order. Strange how the Commission is able to negotiate with third nations over related criminal provisions while there are no criminal provisions on the matter in the acquis communautaire. In the Council the member states fail to get common grounds on a proposed IPRED2 directive with criminal provisions.
Translated from my eurochinese: As there is no “EU criminal law”, the European Commission has probably technically no competence for the matter. While the corresponding EU-legislative project remains stalled because of EU member states dissent in the Council, the European Commission negotiates the same legislative aspects with nations outside the EU, trying to reach an agreement which would also bind EU legislators.
Sköne Oke 