CODE
Reference
Communication to the Council to be amended, despite several,
The very clear indications that this was not possible. Commission's Communication to the Council was said (by the Commission and the Council Secretariat) to be exactly what its title indicated. As a result the Commission could say what it liked and it was up to the Council to do whatever it liked in response.
What is required is a Council decision of some sort, noting, approving, modifying or whatever the Commission's recommendations (see para 9 of the Communication). Obviously, since what is involved is a negotiating mandate, the substance of any Council decision. would have to be kept secret. This suggested simply an agreed statement in the minutes of the Council since these are never published. The Council Secretariat would have to do the necessary drafting so that the next Working Group meeting (13/14 March) could refer the matter to COREPER and thence to the 6 April Internal Market Council.
6.
The long, involved and ultimately inconclusive discussion of Article 3(6) of the Directive and Article 116 EC engaged in by Germany and France will at most lead only to the inclusion of some qualifying wording along the lines of 'without prejudice to the competence of Member States' and some shading of any references to 'a common position' at appropriate points in any Council decision.
7. A point by point discussion of the Annex to the Commission's Communication to the Council then followed.
8.
On voting in the proposed Assembly (as distinct from at Diplomatic Conference) WIPO's latest draft gave the Community 13 votes. Portugal, Spain and Italy wanted to press for 13 votes. Germany, UK, Holland and Commission did not agree (although no-one would look a gift horse in the mouth). Germany and UK suggested that there were good reasons for saying that the Community would only have a number of votes equal to the number of Member States present.
In
Spain, Portugal, Italy, Denmark did not agree. their view the Member States were in effect mandating the Community to vote on their behalf (but only on matters of agreed exclusive Community competence) irrespective of whether all Member States were present. Scordamaglia agreed with this view and spoke of legal problems if only 4 or 5 Community States 'voted' and the vote were lost, resulting in private rights being prejudiced.
9.
On Form of Protection (point 7) there seemed to be a consensus that the Treaty should contain a provision to the effect that the Treaty was without prejudice to Contracting State's obligations under other IP Treaties after Holland and UK had argued long and hard to this end.
10.
On the Start of Protection (point 13) the Commission were suggesting a relaxation of the previous Community line that protection should start from first commercial exploitation or the making of an application for registration, whichever is the earlier, by dropping
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