A Vote to Be Allowed to Vote

On 27 April 2023, the European Commission published its proposal for the Regulation of Standard Essential Patents (“SEP Proposal”).  The SEP Proposal was carefully considered and vetted through the European Union’s ordinary legislative procedures.  Stakeholders and the public were given the opportunity to provide written input and there were more than 70 submissions from businesses, academics and other experts.  It was also reviewed, and comments and suggestions made, by several European Parliament Committees, including Legal Affairs (JURI), the European Economic and Social Committee, the Committee on International Trade and the Committee on Internal Market and Consumer Protection. Juri voted to advance the SEP Proposal.  So too did the European Parliament.

And then, quite abruptly, the European Commission withdrew the SEP Proposal before the EU member states had an opportunity to vote on it.

At one of the conferences I attended in September, an EC staff member explained why.  He said that SEP Proposal was withdrawn because of a disagreement over how to proceed when it came to SEPs.   In other words, because not all of the stakeholders could agree, the European Commission abandoned all of the hard work that had been done to promulgate, review, comment and vote on a solution that was trying bring some sanity and transparency to the current fragmented, difficult, time consuming and expensive FRAND licensing system.

What a terrible way to govern: identify that there is a serious problem but, if there are different ideas about how to fix the problem, simply decide not to do anything at all. As the oft quoted philosopher William James once said, “No decision is, in itself, a decision” and in this case, a really bad decision.

It also is a very undemocratic one.  The SEP Proposal entailed a great deal of hard work and compromise by many parties, all trying to solve a significant real-world problem.  It deserves careful consideration by the European member states, not abandonment by Commission fiat. 

Apparently, the European Parliament agrees.  The Members of Parliament have now voted to take legal action against the EC.  That means that the European Parliament has voted to litigate with the European Commission to try to force the EC to follow the EU’s ordinary legislative procedures.  You could term it a vote to be allowed to vote, and to have all votes counted. 

One of the EC’s stated goals is to protect European democracy and empower “all to help shape the future of our European Union.” I guess the "all" does not include the multitude of people who have worked long and hard on the SEP Proposal. One hopes that rather than force this judicial process to completion, the EC does the right thing by allowing a vote, and the EU's ordinary legislative procedures, to move forward.  That would be the best way of ensuring a fair and democratic process.