International investment court plan threatens our democracy

The European Commission investigates a permanent international investment court as a replacement of the controversial investor-to-state dispute settlement mechanism (ISDS). The plan for a court and the road map towards it are fundamentally flawed. To protect our democracy the European Parliament has to reject both ISDS and court. Former vice-president of the European Commission in charge of justice and now member of the European Parliament international trade committee Viviane Reding proposed to replace ISDS with a permanent international investment court. Commissioner for Trade Malmström supports the idea. Continue Reading →

Commissioner Malmström defends rigged ISDS in CETA

Today EU commissioner Malmström gave a speech in the European Parliament trade committee on investor-to-state dispute settlement (ISDS). ISDS gives foreign investors the right to use arbitration against states, instead of using local courts. Malmström made clear that she does not want to change the trade agreement with Canada (CETA), which contains a highly controversial ISDS section. The CETA text was used for the ISDS consultation. If CETA is ratified, multinationals from the US and other countries will be able to use the ISDS mechanism in CETA against the EU and its member states. Continue Reading →

EU published 2 year old TiSA mandate

Today the EU declassified a two year old mandate of the member states to the European Commission to negotiate the services agreement TiSA. These mandates are drafted by the European Commission and approved by the member states in the European Council and authorise the European Commission to negotiate with third countries. The declassification shows that data flows are among the negotiated subject matters, a controversial item in a post-Snowden world. Continue Reading →

Vrijschrift letter highlights dangers ISDS in CETA and EUSFTA

A Vrijschrift letter to the Dutch Parliament highlights the dangers of investor-to-state dispute settlement (ISDS) in the trade agreements with Canada (CETA) and Singapore (EUSFTA). On 25 March EU trade ministers will meet (informally) to discuss trade agreements and ISDS. In preparation, the Dutch Parliament trade and development committee meets on 11 March. Today Vrijschrift has sent this committee a letter. Original in Dutch, translation:

Dear members of the BuHaOs committee,

On March 11 you will discuss trade agreements. Continue Reading →

Unitary patents and software

The European Commission acknowledges that the unitary patent is not safeguarded against the granting of software patents by endorsing the EPO teaching:
21. Will the new unitary patent regime facilitate the patenting of computer programmes? The patentability requirements for European patents with unitary effect are identical to those of “classical” European patents. The envisaged regulation on unitary patent protection does not contain any particular disposition or derogation on the patentability conditions for inventions. As to the patentability of software, Article 52(2) of the European Patent Convention provides that programs for computers do not constitute a patentable invention. Continue Reading →

White House defends ISDS

The United States government defends its investor-to-state dispute settlement (ISDS) model. It gives the US unfair procedural advantages. Rigged

The International Centre for Settlement of Investment Disputes (ICSID) is part of the World Bank. It is the most used ISDS forum; investors can choose this forum. The president of the World Bank has always been the candidate of the US. Continue Reading →

VATMESS – EU harmonisation gone wrong for SaaS

Since 1 January 2015 online traders in the EU, selling items like “laser swords” in an app, have to apply the applicable value-added tax (VAT) rate to their purchases and submit the tax to the applicable tax authority of the responsible European member state. The new rules affect “laser swords”, document templates and SaaS but not traditional ecommerce trade of physical goods. Fortunately there is a “mini-one-stop-shop”, that is a single point of contact, subject to your registration, to declare and distribute the VAT. For your apps you have to engineer complicated solutions to determine the applicable member state of a net customer. The situation gets easier when your customer is a company with a VATIN, that is the European number of a VAT registered company. Continue Reading →

How Germany undermines data protection

The German delegation to the Council puts the axe against the data protection regulation. The trick is a special new pseudonyme data proposal. This shows a document from the Germans that was published by Statewatch. Under specific circumstances further processing which leads to revealing (re)-identification of the data subject should be allowed if the controller demonstrates compelling legitimate grounds which override the interests or fundamental rights and freedoms of the data subject (Art.6 (5)). The controller shall consider all the determinants of risk and assess whether a threat to the data subject exists. Continue Reading →

The H word

The European Commission published a textual proposal for the TTIP talks that includes the H-Word. Previously the European Commission had argued that (legal) harmonisation was not among the objective of the agreement: “Given the efficiency of their respective systems, the intention is not to strive towards harmonisation, but to identify a number of specific issues where divergences will be addressed.” We mocked this on the FFII ACTA blog. In the Commission’s tabled text proposal it reads: Continue Reading →

Unified Patent Court a mistake of historic dimensions?

The EU wants to create a Unified Patent Court (UPC). I will discuss some aspects of the UPC and make two more general remarks on (adjudicative) system design. The UPC proposal has a twist; it tries to minimise the role of the EU Court of Justice (CJEU). This may lead to an expansionist interpretation of patent law. According to Josef Drexl, director of the Max Planck Institute for Innovation and Competition, this could easily amount to a mistake of historic dimensions:

“The policy argument behind this is to concentrate patent law cases before highly specialized patent courts and to prevent, as far as possible, any general law court from controlling the specialized court. Continue Reading →

Eva Kaili raises questions about access to TTIP documents in the age of the Lisbon Treaty

Eva Kaili (S&D) from Greece asks the European Commission (under rule 130):

The Transatlantic Trade and Investment Partnership and potential areas of conflict with the Lisbon Treaty

The Transatlantic Trade and Investment Partnership (hereinafter TTIP) is a comprehensive free trade and investment agreement, which is currently being negotiated — behind closed doors — between the European Union and the US. In particular, all TTIP negotiations are swathed in secrecy, since the Commission is imposing the most stringent restrictions on the more important documents. In response to great pressure from MEPs, the Commission has stated that Member States and selected MEPs — those who handle the relevant issues — may have some access to the EU negotiating documents, but only in designated reading (reading rooms), and the photocopying or photographing of documents will not be permitted. The Court of Justice has already issued two important decisions — on 26 June 2014 and 3 July 2014 — essentially criticising the lack of transparency and information in the negotiations. Under Article 218 of the EU Treaty (Treaty of Lisbon) and on the basis of the precautionary principle, will the Commission say:
(a) Is the procedure being adopted in this instance in accordance with Article 218 TEU? Continue Reading →