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09.09.11

Cablegate: Importing the USPTO Into Europe, Using the ‘EU Patent’

Posted in Europe, Patents at 2:37 pm by Dr. Roy Schestowitz

Cablegate

Summary: Very detailed cable about Europe presents a picture of the threat of the EU Patent, among many other things

THE founder of the FSF was chided by some European patent lawyers after he had repeated what the FFII tells us all the time (since 2008 or thereabouts). The EU Patent or whatever the politicians choose to call it (the name keeps changing, which makes it a moving target) would help bring USPTO patents — software patents include — into Europe.

The following Cablegate cable from 2009 says:

“¶39. Patents: It is not yet possible to file for a single EU-wide patent that would be administered and enforced in all EU member states. The most effective way to secure a patent across a range of EU national markets is to use the services of the European Patent Office (EPO). EPO offers a one-stop-shop that enables right holders to obtain various national patents using a single application. However, these national patents have to be validated, maintained and litigated separately in each Member State. Although the European Commission proposed a regulation in 2000 (COM 412) on the institutional framework regarding the establishment of a community patent, the Council has repeatedly failed to reach agreement on the dossier. The main outstanding issues relate to the translation of patent claims and litigation options. The Union has so far also failed to set up a streamlined system for the resolution of patent disputes. The Council rejected a Commission request for a mandate to negotiate an EU patent litigation agreement in December 2006.”

In other words, it is about litigation and they want to make litigation easier, with increased damages too. How does that help Europeans? Who does that make richer? On it goes:

“¶40. In March 2007, the Commission released a Communication (COM 2007/165) restating the Commission position that it would not abandon the Community patent and European Patent Litigation Agreement (EPLA) proposals. In September, 2008, the EPO and the U.S. Patent and Trademark Office (USPTO) launched the Patent Prosecution Highway, a joint trial initiative that leverages fast-track patent examination procedures already available in both offices to allow applicants to obtain corresponding patents faster and more efficiently. This will permit each office to exploit the work previously done by the other office and reduce duplication. In addition, the two offices, along with the patent offices of Japan, Korea, and China announced a joint agreement (IP5) in November to move forward on work sharing and to undertake a number of projects to harmonize the environment for work sharing and eliminate unnecessary duplication of work.”

This means that this whole ‘globalisation’ of patent monopolies systems would result in broadening the reach of patents and increasing their number, too. As we saw in the so-called 'trade agreement' with Korea , this also means spreading software patents to the whole world. Below we put the cable in its raw form.



VZCZCXRO4778
PP RUEHAG RUEHDF RUEHIK RUEHLZ RUEHROV RUEHSR
DE RUEHBS #0171/01 0371128
ZNR UUUUU ZZH
P 061128Z FEB 09
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC PRIORITY
RUCPDOC/DEPT OF COMMERCE WASHDC
RUEATRS/DEPT OF TREASURY WASHDC
INFO RUCNMEM/EU MEMBER STATES COLLECTIVE

UNCLAS SECTION 01 OF 17 BRUSSELS 000171
SIPDIS
STATE FOR EEB/IFD/OIA, EUR/ERA
TREASURY FOR DO/JMACLAUGHLIN
USDOC FOR ITA/JKOZLOWICKI
PLEASE PASS TO USTR
E.O. 12958: N/A
TAGS: EINV [Foreign Investments], EFIN [Financial and Monetary Affairs], 
ETRD [Foreign Trade], ELAB [Labor Sector Affairs], 
PGOV [Internal Governmental Affairs], 
OPIC [Overseas Private Investment Corporation], BE [Belgium]
SUBJECT: EU INVESTMENT CLIMATE STATEMENT, 2009
REF: 08 STATE 123907
¶1.  Per reftel, this is the 2009 Investment Climate
Statement for the European Union. Post will email
Word versions as instructed in reftel. The
statement covers the following categories:
--Openness to Foreign Investment
Q-Conversion and Transfer Policies
--Expropriation and Compensation
--Dispute Settlement
--Performance Requirements and Incentives
--Right to Private Ownership and Establishment
--Protection of Property Rights
--Transparency of Regulatory System
--Efficient Capital Markets and Portfolio Investment
--Political Violence
--Corruption
--Bilateral Investment Agreements
--OPIC and Other Investment Insurance Programs
--Labor
--Foreign-Trade Zones/Free Ports
--Foreign Direct Investment Statistics
--Web Resources
OPENNESS TO FOREIGN INVESTMENT
------------------------------
EU Treaty Provisions Governing Investment/Historical
Background
¶2.  The European Union has perhaps one of the most
hospitable climates for U.S. investment in the
world, with the historical book value of U.S.
investment in the 27 EU member states exceeding $1
trillion. This is a result, in part, of the process
of European integration. The 1957 Treaty of Rome
(now known as the EU Treaty) established the
European Community (now Union). EU Treaty Article
43 requires EU Member States to provide national
treatment to investors from other Member States
regarding the establishment and conduct of business.
In addition, the EU Treaty creates "four freedoms"
(free movement of capital, labor, goods and persons)
within the European Union. The free movement of
capital in particular benefits all potential
investors, whether they originate from an EU Member
State or not. The EU Treaty also grants investors
national treatment. Finally, any violation of these
rights can be adjudicated by the European Court of
Justice, which may hear cases related to violations
of Treaty rights directly, or overturn national
court decisions found inconsistent with the Treaty.
This was a remarkable achievement, given that the
six original signatories to the Treaty had been at
war with one another a decade previously.
¶3.  The 1986 Single European Act further reduced
barriers to intra-EU investment and legislation
adopted subsequently even created opportunities for
companies from one Member State to receive better
than national treatment in another Member State.
For example, in the financial services sector,
German universal banks can conduct securities
business freely in other Member States, even if
local banks are not allowed to offer these services
domestically by their local licensing authority.
¶4.  Prior to the 1992 Treaty on the European Union,
the Community itself had virtually no role in
determining the conditions that would affect the
entry of investors from third countries into the
territories of the Member States. While the Member
States were compelled by the Treaty to grant
national treatment to investors from other EU
countries, they could erect and maintain barriers to
investors from non-EU countries, consistent with
their international obligations. These obligations
include the Treaties of Friendship, Commerce and
Navigation (FCNs) which the United States has with
most EU countries, as well as obligations under the
OECD codes on capital movements and invisible
transactions. The only role Community law played
was to ensure that a foreign-owned company that was
established in one Member State received non-
discriminatory treatment in other Member States, as
BRUSSELS 00000171 002 OF 017
mandated under Article 43 of the EU Treaty.
¶5.  The EU's ability to regulate Member State
treatment of incoming foreign investment increased
considerably in 1993. In that year, an EU Treaty
revision abolished all restrictions on the movement
of capital (including direct investment operations),
both between EU Member States and between Member
States and third countries (Article 56). However,
EU Member State measures in force on December 31,
1993 denying national treatment to third-country
investors were grandfathered. The Treaty (Article
57) now expressly provides for the adoption of
common regimes in these areas: "The Council may,
acting by a qualified majority on a proposal from
the Commission, adopt measures on the movement of
capital to or from third countries involving direct
investment establishment, the provision of financial
services or the admission of securities to capital
markets. Unanimity shall be required for measures
under this paragraph which constitute a step back in
Community law as regards the liberalization of the
movement of capital to or from third countries."
¶6.  In June 1997, the European Commission issued an
interpretative communication clarifying the scope of
EU Treaty provisions on capital movements and the
right of establishment. The Commission was reacting
to limits that certain Member States had imposed on
the number of voting shares that investors from
other Member States could acquire during
privatization. The Commission stressed that free
movement of capital and freedom of establishment
constitute fundamental and directly applicable
freedoms established by the EU Treaty. Nationals of
other Member States should, therefore, be free to
acquire controlling stakes, exercise the voting
rights attached to these stakes and manage domestic
companies under the same conditions laid down in a
Member State for its own nationals. The European
Court of Justice ruled in three precedent-setting
cases in 2002 against golden shares in France,
Belgium and Portugal, triggering a number of
infringement actions by the Commission. The Court
has subsequently ruled against golden share cases in
several other Member States.
¶7.  In June 2007, a new EU Directive to strengthen
investor-voting rights across borders came into
force. The Directive bolsters cross-border
investment by abolishing shareholder-voting
impediments that were then prevalent in several
Member States, such as the inability to vote
electronically or by proxy. It is too soon to know
how the Directive will be implemented by the
affected Member States and whether the Commission
will need to take legal action to compel
implementation.
¶8.  On November 1, 2007, the EU's Markets in
Financial Instruments Directive (MiFID) came into
force. The law seeks to eliminate many barriers to
cross-border stock trading by establishing a common
framework for European securities markets,
increasing competition between market exchanges,
raising investor protection and providing investors
a broader range of trading venues. It gives EU
securities exchanges, multilateral trading
facilities and investment firms a "single passport"
to operate throughout the EU on the basis of
authorization in their home Member States. MiFID is
broadly considered a success. At the Commission's
request, and in order to identify possible areas of
improvement, the Qmmittee of European Securities
Regulators (CESR) is currently carrying out an
evaluation of MiFID's impact. The results will be
published in the spring of 2009.
¶9.  In January, 2008, the European Commission
proposed to remove barriers to cross-border venture
capital investment and fundraisingQ The Commission
proposal would authorize national regulators to
recognize venture capital funds operating in other
EU Member States in order to help innovative small
businesses access risk capital. The Commission
invited Member States, when reviewing existing or
BRUSSELS 00000171 003 OF 017
adopting new legislation, to enable cross-border
operations and consider mutual recognition of
venture capital funds.
U.S.-EU Efforts to Promote Open Investment
¶10.  On November 9, 2007, the United States and the
European Commission under the umbrella of the
Transatlantic Economic Council (TEC) launched the
"U.S.QEU Investment Dialogue" to reduce barriers to
transatlantic investment and promote open investment
regimes globally. The Dialogue has met several
times, most recently in October 2008. The Dialogue
prepared and recommended to the TEC an Open
Investment Statement, which was adopted at the June
2008 U.S.-EU Summit. The Dialogue's ongoing work
plan includes: 1) reviewing global investment
trends, including sovereign wealth investment; 2)
identifying and discussing issues of concern with
respect to bilateral investment; 3) developing lists
of priority third country investment barriers and
discussing ways to address them; and 4) facilitating
progress on investment issues in the OECD. The
United States and the EU continue to discuss the
EU's evolving role with respect to foreign
investment in other fora as well.
EU Responses to the Financial Crisis
¶11.  In response to the global financial crisis
hitting Europe directly in fall 2008, the Commission
put forward a number of legislative proposals to
address what was increasingly perceived as an
unacceptable degree of deregulation in the financial
sector, particularly in the wake of massive
injections of public money to rescue financial
institutions.
Credit Rating Agencies (CRAs): On November 12, 2008,
the Commission proposed a new Regulation that seeks
to harmonize rules on CRAs throughout the EU,
ensuring that ratings are not affected by conflicts
of interest, that CRAs defend the quality of their
ratings and rating methodology, and that they act
transparently. The proposal calls for all CRAs
whose ratings are used in Europe be registered in
the EU and subject to European supervision and that
they submit to stringent corporate governance rules,
and forbids financial institutions in Europe to
trade rated instruments without that instrument
carrying a rating from an-EU registered CRA. The
Commission aims for adoption before the summer of
2009.
Deposit Insurance: In December 2008, the Council and
Parliament approved a Commission proposal to raise
the minimum threshold for deposit insurance to
100,000 in two steps, and to harmonize the time
period for repayment of deposits. As a result,
minimum deposit guarantees will be raised to 50,000
as of June 30, 2009, and the payout period shortened
from the current three months to 20 days. Coverage
will apply to all depositors in all Member States,
regardless whether the currency is the Euro or not.
The threshold will be raised to 100,000 on January
1, 2010.
Hedge Funds: In 2008, the European Parliament asked
the Commission to enhance regulation of hedge funds
and private equity funds. In December 2008 the
Commission launched a public consultation to develop
a broad definition of hedge funds and to seek
comments on the following issues: (1) systemic risk;
(2) market integrity and efficiency; (3) risk
management; and (4) transparency. Results of the
consultation are expected in February 2009. The
consultation will serve as the basis for EU
legislative proposals as well as for EU input into
parallel reflections on hedge funds by the G-20.
Ownership Restrictions and Reciprocity Provisions
¶12.  EU Treaty Articles 43 (establishment) and 56/57
(capital movements) have helped the EU to create one
of the most hospitable legal frameworks for U.S.
investment in the world. However, restrictions on
BRUSSELS 00000171 004 OF 017
foreign direct investment do exist and others have
been proposed.
¶13.  Under EU law, the right to provide aviation
transport services within the EU is reserved to
firms majority-owned and controlled by EU nationals.
The right to provide maritime transport services
within certain EU Member States is also restricted.
Currently, EU banking, insurance and investment
services directives include "reciprocal" national
treatment clauses, under which financial services
firms from a third country may be denied the right
to establish a new business in the EU if the EU
determines that the investor's home country denies
national treatment to EU service providers. In
addition, as with the United States, a number of
regulatory measures, particularly in the financial
sector, are also subject to "prudential exceptions"
and thus are not covered by these GATS commitments.
¶14.  After years of discussion, in March 2004, the
Council of Ministers approved a Directive on
takeover bids ("Takeover Directive"). This
Directive seeks to create favorable regulatory
conditions for takeovers and to boost corporate
restructuring within the EU. The Directive
authorizes Member States and companies to ban
corporate defensive measures (e.g. "poison pills" or
multiple voting rights) against hostile takeovers.
It includes a "reciprocity" provision to allow
companies that otherwise prohibit defensive measures
to sue if the potential suitor operates in a
jurisdiction that permits takeover defenses.
Article 12.3 of the final text is ambiguous as to
whether the reciprocity principle would apply to
non-EU firms. However, the preamble states that
application of the optional measures is without
prejudice to international agreements to which the
EC is a party. France has indicated its intent to
apply reciprocity to third countries. Some other
Member States appear to be leaning in the same
direction.
¶15.  The Takeover Directive was due to be
implemented by Member States by May 20, 2006, but
full implementation was delayed. By February 2007,
seventeen Member States had transposed the Directive
or adopted necessary framework rules. Belgium and
the Netherlands implemented the directive in April
and October 2007 respectively. Other Member States
implemented the Directive in late 2007 and
throughout 2008.
Energy Sector Liberalization
¶16.  In September 2007, the European Commission
introduced legislation intended to increase
competition and investment in the gas and
electricity sectors, featuring controversial plans
to separate the production and distribution arms of
large integrated energy firms. After a year of
negotiation over competing proposals, the French
Presidency of the EU forged a political compromise
during the EU Energy Ministers meeting of October
10, 2008. France and Germany successfully led a
coalition against the Commission's plan to force
integrated firms to sell off their transmission
operations to keep them separate from energy
production. Under the agreement, French and German
EDF, GDF, and RWE can retain ownership of their gas
and electricity grids, although operations are meant
to be completely independent and this is subject to
outside supervision. However, these monopolies
cannot buy up transmission businesses in European
countries where full unbundling has been introduced.
¶17.  Germany also succeeded in pushing through a
weaker version of the "third coQtry" clause whereby
Member States would have the authority to review
acquisitions of unbundled assets by third countries
with a requirement that the Commission must be
consulted to determine whether the acquisition would
"put at risk the security of energy supply to the
Community." The Commission decision is only
advisory, however. The French led internal energy
market compromise will now go to Parliament for
BRUSSELS 00000171 005 OF 017
approval, which could prove difficult before
Parliamentary elections in June 2009.
CONVERSION AND TRANSFER POLICIES
--------------------------------
¶18.  Europe's single currency, the Euro, and the
eleven remaining national EU Member State currencies
are freely convertible. The EU, like the U.S.
places virtually no restrictions on capital
movements. Article 56 of the EU Treaty specifically
prohibits restrictions on the movement of capital
and payments between Member States and between
Member States and third countries, with the
grandfathered exceptions noted above. The adoption
of the Euro in 16 of the 27 EU Member States has
shifted currency management and control of monetary
policy to the European Central Bank (ECB) and the EU
Council of Ministers. In recent years, EU members
Malta and Cyprus adopted the Euro on January 1,
2008; Slovakia adopted the currency a year later, on
January 1, 2009.
¶19.  Remaining new EU Member States must join the
Euro upon meeting specific economic convergence
criteria although no time limit is placed for the
application procesQo be completed. The global
financial crisis has led some countries outside of
the Eurozone to consider accelerating entry into the
zone. The crisis has caused public opinion in
Denmark, for example, which previously opted against
Eurozone entry, to swing toward Euro adoption, and
the Danish government may hold a new referendum on
the issue. Poland, the Czech Republic and the
Baltic states are considering when they might be
able to join the Eurozone.
EXPROPRIATION AND COMPENSATION
------------------------------
¶20.  The European Union does not have the authority
to expropriate property; this remains the exclusive
competence of the Member States.
DISPUTE SETTLEMENT
------------------
¶21.  Foreign investors can, and do, take disputes
against Member State governments directly to local
courts. In addition, any violation of a right
guaranteed under the EU law - which has been ruled
supreme to Member State law, including
constitutional law - can be heard in local courts or
addressed directly by a foreign investor with a
presence in a Member State to the European Court of
Justice. Further, all EU Member States are members
of the World Bank's International Center for the
Settlement of Investment Disputes (ICSID), and most
have consented to ICSID arbitration of investment
disputes in the context of individual bilateral
investment treaties. While the EU is not itself a
party to ICSID or other such arbitration
conventions, it has stated its willingness to have
investment disputes subject to international
arbitration.
PERFORMANCE REQUIREMENTS AND INCENTIVES
---------------------------------------
¶22.  As the ten-year anniversary Q January 1, 2009 -
of the implementation of European Economic and
Monetary Union approached, political interest in a
coordinated tax policy grew among some EU officials.
However, Charlie McCreevy, Commissioner for the
Internal Market and Services, has flatly rejected
legislation to move toward tax harmonization across
Member States. A number of key Member States also
object to proposals that would create a "common
consolidated tax basis" across borders for European
countries. European Union grant and subsidy
programs are generally available only for nationals
and companies based in the EU, but usually on a
national treatment basis. For more information, see
Chapter 7 "Trade and Project Financing" as well as
individual Country Commercial Guides for Member
State practices.
BRUSSELS 00000171 006 OF 017
RIGHT TO PRIVATE OWNERSHIP AND ESTABLISHMENT
--------------------------------------------
¶23.  The right to private ownership is firmly
established in EU law, as well as in the law of the
individual Member States. See individual country
commercial guides for Member State practices.
PROTECTION OF PROPERTY RIGHTS
-----------------------------
¶24.  The EU and its Member States support strong
protection for intellectual property rights (IPR)
and other property rights. The EU and/or its Member
States adhere to all major intellectual property
rights agreements and offer strong IPR protection,
including implementation of the WTO TRIPS
provisions. Together, the U.S. and the EU have
committed to enforcing IPR in third countries and at
our borders in the EU-U.S. Action Strategy endorsed
at the June 2006 U.S.-EU Summit.
¶25.  On October 23, 2007, the U.S. and key trading
partners announced their intention to negotiate an
Anti-Counterfeiting Trade Agreement (ACTA) in order
to bolster efforts to combat counterfeiting and
piracy by identifying a new, higher benchmark for
enforcement that countries can join on a voluntary
basis. There have been four rounds of ACTA
negotiations, the last held in Paris in December,
2008, with no agreement reached as of this writing.
Talks will continue in 2009, with the next round
scheduled for Morocco in March.
¶26.  Despite overall strong support for IPR
enforcement, several EU Member States have been
identified in the U.S. Special 301 process due to
concerns with protection of certain intellectual
property rights. The United States continues to be
engaged with the EU and individual Member States on
these matters.
Enforcement of Intellectual and Industrial Property
Rights
¶27.  In April 2004, the EU adopted a Directive on
the enforcement of intellectual and industrial
property rights such as copyright and related
rights, trademarks, designs, and patents. This
Directive requires Member States to apply effective
and proportionate remedies and penalties that form a
deterrent against those engaged in counterfeiting
and piracy. Member States are required to have a
similar set of measures, procedures, and remedies
available for right holders to defend their IPR.
The Directive includes procedures covering evidence
and measures such as injunctions and seizures.
Remedies available to right holders include the
destruction, recall, or permanent removal from the
market of illegal goods, as well as financial
compensation, injunctions, and damages. There is a
right to information allowing judges to order
certain persons to reveal the names and addresses of
those involved in distributing illegal goods or
services, along with details of the quantities and
prices involved.
¶28.  Under the Directive, Member States are required
to appoint national correspondents to cooperate and
exchange information with other Member States and
with the Commission. The Directive takes on
additional importance because of the expansion
through EU enlargement of the EU's borders to the
east, which moves them closer to countries such as
Russia that have been a persistent source of pirated
CDs and DVDs. Member States were supposed to have
implemented the Directive by April 2006. At
present, all but two states have transposed the
legislation, with Sweden's law taking effect in
April, 2009 and Luxembourg's to follow in May, 2009.
¶29.  On January 3, 2008, the European Commission
released a Communication on Creative Content online.
The Commission wants to encourage the content
industry, telecoms companies and Internet service
BRUSSELS 00000171 007 OF 017
providers to work together closely to make available
more content online while at the same time ensuring
a robust protection of intellectual property rights.
It identifies legal offers and piracy as one of the
four main challenges and suggests the promotion of
codes of conduct between all stakeholders could be
welcomed.
¶30.  On January 29, 2008, the European Court of
Justice (ECJ) issued an important decision
confirming that EU rules do not require countries to
disclose names of Internet file sharers in civil
cases. The Spanish firm Promusicae and other
European rights holders had hoped that the ECJ would
rule that Telefonica (a Spanish Internet service
provider) had to provide the proper data to protect
its property rights. This was the expected finding
as the European Advocate General's opinion had said
as much in July 2007. The Court, however, said that
Member States could Q but do not have to - require
communication of personal data to ensure effective
copyright protection in the context of civil
proceedings as long as such national laws are not in
conflict with the fundamental EU rights of respect
for private life and protection of personal data.
¶31.  The Commission held a High Level Conference on
Counterfeiting and Piracy May, 15, 2008. The
Conference was billed as the "starting point of a
process towards a long lasting strategy mobilizing
both industry and public authorities to jointly
combat counterfeiting and piracy." A follow-up
conference is planned for spring 2009.
Criminal Enforcement
¶32.  On November 23, 2005, the European Commission
adopted a Communication outlining seven existing
legislative acts that needed to be revised to
include criminal sanctions in case of infringements.
Affected areas include money laundering,
intellectual property violations, corruption, human
trafficking, maritime pollution, Euro
counterfeiting, and Internet-related infringements.
The Communication was adopted within the context of
a European Court of Justice ruling that the
Commission had the right to set criminal sanctions
for breaches of legislation in policy areas where
the EU law has primacy (i.e. first pillar), which
Member States must then enforce. According to the
Communication, the Commission will establish
criminal penalties that must be enforced by Member
States. Governments not enforcing them will be
brought to the EU Court of Justice. In light of the
ECJ ruling, the Commission on April 26, 2006,
reissued a proposed Directive on criminal measures
to enforce IPR. Since the revision, another ECJ
case strengthened the Commission position regarding
its competence to initiate directives on criminal
enforcement; however, this newer case also ruled out
mandating particular sanction levels. The proposal
was supported by the Council in September 2008 and
is currently under consideration by the European
Parliament.
¶33.  Copyright: In 2001, the EU adopted Directive
2001/29 establishing pan-EU rules on copyright and
related rights in the information society. In
December 2006, the Council and Parliament passed an
updated version of the 2001 Copyright Directive
modified to clarify terms of copyright protection.
This new Directive entered into force on January 17,
2007. The Directive is meant to provide a secure
environment for cross-border trade in copyright-
protected goods and services, and to facilitate the
development of electronic commerce in the field of
new and multimedia products and services. Authors'
exclusive reproduction rights are guaranteed with a
single mandatory exception for technical copies, and
an exhaustive list of exceptions to copyrigh which
are optional for Member States in term of including
them in national law.
¶34.  In April 2004, Directive 2004/48, designed to
harmonize civil and administrative IP measures,
procedures, and remedies, was adopted at the EU
BRUSSELS 00000171 008 OF 017
level. That directive has been adopted by almost
all member states. Sweden implemented the Directive
on January 1 2009, after a May 2008 European Court
Ruling directing Sweden to do so, leaving Luxembourg
as the only Member State not implementing. The
Commission released a comprehensive anti-
counterfeiting plan, including criminal enforcement
of IPR, which was supported by the Council in
September 2008. The trademark and copyright
community would like to see the Directive succeed,
but not if greatly weakened. The Directive could
facilitate cross-border enforcement.
¶35.  The January 2008 Commission Communication on
creative content online also discusses aspects of
legal offers and piracy. The Commission followed
with a Communication on July 16, 2008 outlining an
industrial property rights strategy for Europe,
calling for development of a horizontal and
integrated strategy across the spectrum of
industrial property rights. This includes the
launch of a Commission study on patent quality, as
well as an evaluation of the overall functioning of
Community and Member State trademark systems. On
September 26, 2008, the European Union Competiveness
Council adopted a resolution endorsing the
Commission's approach and encouraging the Commission
and Member States to step up the protection of
intellectual property rights internationally and
within the internal market.
¶36.  Trademarks: Registration of trademarks with the
European Union's Office for Harmonization in the
Internal Market (OHIM) began in 1996. OHIM issues a
single Community Trademark (CTM) that is valid in
all EU Member States. On October 1, 2004, the EC
acceded to the World Intellectual Property
Organization (WIPO) Madrid Protocol. The accession
of the EC to the Madrid Protocol established a link
between the Madrid Protocol system, administered by
WIPO, and the Community Trademark system,
administered by OHIM. Since October 2004, Community
Trademark applicants and holders have been allowed
to apply for international protection of their
trademarks through the filing of an international
application under the Madrid Protocol. Conversely,
holders of international registrations under the
Madrid Protocol are entitled to apply for protection
of their trademarks under the Community trademark
system. The link between the OHIM and the WIPO
registration systems allows firms to profit
simultaneously from the advantages of each, while
also reducing costs and simplifying administrative
requirements.
¶37.  Designs: The EU adopted a Regulation
introducing a single Community system for the
protection of designs in December 2001. The
Regulation provides for two types of design
protection, directly applicable in each EU Member
State: the Registered Community Design (RCD) and the
unregistered Community design. Under the Registered
Community Design system, holders of eligible designs
can use an inexpensive procedure to register them
with the EU's Office for Harmonization in the
Internal Market (OHIM) based in Alicante, Spain.
They will then be granted exclusive rights to use
the designs anywhere in the EU for up to twenty-five
years. Unregistered Community designs that meet the
Regulation's requirements are automatically
protected for three years from the date of
disclosure of the design to the public. Protection
for any registered Community design was
automatically extended to Romania and Bulgaria when
those countries acceded to the European Union on
January 1, 2007.
¶38.  In September 2007, the EU acceded to the Geneva
Act of the Hague Agreement concerning international
registration of industrial designs. This allows EU
companies to obtain protection for designs in any
country that belongs to the Geneva Act, reducing
costs for international protection. The system
became operational for businesses on January 1,
2008. In April, 2008, OHIM updated the guidelines
for renewal of Registered Community Designs.
BRUSSELS 00000171 009 OF 017
¶39.  Patents: It is not yet possible to file for a
single EU-wide patent that would be administered and
enforced in all EU member states. The most
effective way to secure a patent across a range of
EU national markets is to use the services of the
European Patent Office (EPO). EPO offers a one-
stop-shop that enables right holders to obtain
various national patents using a single application.
However, these national patents have to be
validated, maintained and litigated separately in
each Member State. Although the European Commission
proposed a regulation in 2000 (COM 412) on the
institutional framework regarding the establishment
of a community patent, the Council has repeatedly
failed to reach agreement on the dossier. The main
outstanding issues relate to the translation of
patent claims and litigation options. The Union has
so far also failed to set up a streamlined system
for the resolution of patent disputes. The Council
rejected a Commission request for a mandate to
negotiate an EU patent litigation agreement in
December 2006.
¶40.  In March 2007, the Commission released a
Communication (COM 2007/165) restating the
Commission position that it would not abandon the
Community patent and European Patent Litigation
Agreement (EPLA) proposals. In September, 2008, the
EPO and the U.S. Patent and Trademark Office (USPTO)
launched the Patent Prosecution Highway, a joint
trial initiative that leverages fast-track patent
examination procedures already available in both
offices to allow applicants to obtain corresponding
patents faster and more efficiently. This will
permit each office to exploit the work previously
done by the other office and reduce duplication. In
addition, the two offices, along with the patent
offices of Japan, Korea, and China announced a joint
agreement (IP5) in November to move forward on work
sharing and to undertake a number of projects to
harmonize the environment for work sharing and
eliminate unnecessary duplication of work.
¶41.  Geographical Indications: The United States
has long had concerns that the EU's system for the
protection of geographical indications, reflected in
Community Regulation 1493/99 for wines and spirits
and in previous Regulation 2081/92 for certain other
agricultural products and foodstuffs, appears to
fall short of what is required under the TRIPS
Agreement. As a result of a WTO dispute launched by
the United States, the WTO Dispute Settlement Body
(DSB) ruled on April 20, 2005, that EC regulation of
food-related geographical indications (GIs) was
inconsistent with the EC's obligations under the
TRIPS Agreement and the GATT 1994. In its report,
the DSB determined that the EC's GI regulation
impermissibly discriminated against non-EC products
and persons, and that the regulation could not
create broad exceptions to trademark rights
guaranteed by the TRIPS Agreement.
¶42.  In response, the EC published an amended GI
regulation in April 2006 intended to implement the
DSB's recommendations and rulings. The United
States retains concerns about this amended
regulation and is closely monitoring its
application. In addition, similar provisions are
appearing in regulations governing other products,
such as wine and spirits, and the United States will
be carefully monitoring developments in those areas
as well.
¶43.  EU International Efforts to expand GI
protection: The EU continues to press forward with
its campaign to have its geographical indications
protected throughout the world without regard to
consumer expectation in individual markets, and to
expand the negotiations for a registry of
geographical indications beyond wines and spirits to
other foodstuffs. This has developed as a major EU
priority in the context of the Doha Development
Agenda negotiations in the WTO, in which a
discussion is ongoing concerning the extension of
so-called "additional" GI protection to products in
BRUSSELS 00000171 010 OF 017
addition to wine and spirits. The U.S. and other
WTO members continue to oppose the EU's proposals to
extend "additional" GI protection, noting that the
objective of effective protection of such
indications can be accomplished through existing GI
obligations.
¶44.  U.S.-EU coordination on IP counterfeiting and
piracy: Since the U.S.-EU summit of June 2005, where
leaders agreed to more closely cooperate on IPR
enforcement, the U.S. and the EU have intensified
customs cooperation and border enforcement,
strengthened cooperation with and in third
countries, and built public-private partnerships and
awareness raising activities together. The U.S.-EU
action strategy for the enforcement of intellectual
property was launched at the US-EU Summit in June
2006. Since then, there have been bi-annual
meetings between officials and between officials and
rights holders to continue to identify new areas for
cooperation including capacity building, joint
messaging and coordinated border actions. On
February 22, 2008, the United States and European
Union announced the results of Operation
Infrastructure, the first joint IPR operation
undertaken by the U.S. Customs and Border Protection
and the EU. The operation resulted in the seizure
of over 360,000 counterfeit integrated circuits and
computer network components bearing more than 40
different trademarks.
TRANSPARENCY OF REGULATORY SYSTEM
---------------------------------
¶45.  While generally considered transparent, in that
all laws and regulations are published in the
Official Journal of the European Communities, the EU
has worked to improve transparency and simplify its
regulatory system. Building on the 2002 Better
Regulation Action Plan, and the 2003 Inter-
Institutional Agreement on Better Lawmaking, the EU
has made both transparency and smart regulation the
themes of its regulatory efforts since 2005.
¶46.  In November 2005, the European Commission
adopted a Communication launching a European
Transparency initiative (ET). The initiative
focused on four main issues: availability of data as
regards end-recipients of EU subsidies; ethics of
public office holders; transparency of lobbying
activities; and access to documents. On EU
subsidies, the Commission established a central web
portal, providing links to information on end-
recipients. In December 2007 it released a
comparative study of codes of conduct for public-
office holders. In order improve transparency in
lobbying, the Commission set up a voluntary public
register in 2007, followed by the establishment of a
common code of conduct for all lobbyists in 2008.
¶47.  In 2005, the Commission adopted an action plan
for simplifying and improving existing EU
legislation and reducing the administrative burden
on stakeholders within the regulatory process. The
EU's Better Regulation policy aims at simplifying
and improving existing regulation, to better design
new regulation and to reinforce the respect and the
effectiveness of the rules, while respecting the EU
proportionality principle.
¶48.  In its 2007 review of Better Regulation
progress, the Commission presented an action program
to measure administrative costs and cut
administrative burdens of existing EU legislation by
25 percent by 2012 using the EU Standard Cost Model.
This would ultimately increase annual GDP by about
1.5 percent, or around 150 billion. The
Commission set up a high level expert group on the
reduction of administrative burdens to advise it on
the implementation of this program.
¶49.  The Commission published follow up Strategic
Reviews of Better Regulation in the EU in 2008 and
2009, in which it committed to continue to simplify
legislation, further reduce administrative costs,
increase the use of impact assessments (note: the
BRUSSELS 00000171 011 OF 017
Commission carried out over 180 impact assessments
in 2008), and help shape global regulation. In
2008, the Commission also strengthened the role of
the Impact Assessment Board, and published the
"Second Progress Report on the Strategy for
Simplifying the Regulatory Environment", an update
of the EC's rolling simplification program. The
program currently covers around 200 regulations.
Some of those initiatives are entirely new (15) and
cover various policy areas such as agriculture,
automotives, public health, environment and energy.
For 2009, the Commission will present 33 new
regulation simplification initiatives. In addition,
the European Council, under the Czech Presidency,
will conduct a stock-taking exercise of Better
Regulation in March 2009.
U.S.-EU Regulatory Cooperation
¶50.  Unnecessary regulatory divergences between the
United States and EU are the primary source of
friction in our bilateral trade and investment
relationship. As such, regulatory cooperation to
avoid such divergence has intensified significantly
since the December 1997 U.S.-EU Summit Agreement on
Regulatory Cooperation Principles. We agreed on
joint Regulatory Cooperation Guidelines in 2002, and
intensified regulatory cooperation in 6 sectors in
the first "Roadmap" in 2002; by 2007 such sectoral
regulatory cooperation covered 17 sectors. Much of
this work is now subsumed under the High Level
Regulatory Cooperation Forum, established in 2005 as
a place for regulators from many disciplines to
exchange best practices. The HLRCF has now met five
times (most recently in October 2008) and reports
regularly to the cabinet-level TEC.
¶51.  Recent key highlights of our bilateral
regulatory cooperation include:
--a joint OMB-DG SANCO draft report reviewing the
application of EU and U.S. regulatory impact
assessment guidelines and their impact on trade and
investment (2007). Consequently, both sides are
using recommendations from the review to ensure
better analysis of and greater transparency about
the effects of proposed regulations on international
trade and investment.
--closer cooperation between the Consumer Product
Safety Commission (CPSC) and DG SANCO in matters of
product safety, regulatory issues presented by
emerging technologies, impact analysis and risk
assessment methodologies, and the use of
international standards in regulation (2008).
--CPSC, DG Enterprise, and DG SANCO set up a toy
safety working group to discuss toy and children's
product import safety related matters (2008).
--CPSC and DG SANCO conducted a series of joint
outreach seminars in China on U.S. and EU safety
requirements (2008)
--the U.S. agreed to include an international flag
in the fall 2008 U.S. Regulatory Plan and Unified
Agenda of planned regulatory activities. This flag
indicates whether a USG agency expects a regulatory
action under development to have an impact on
international trade or investment.
--OMB, the U.S. Office of Science and Technology
Policy (OSTP) began conversations with DG SANCO to
facilitate an international dialogue on risk
analysis, leading to OMB-OSTP hosted risk analysis
discussions in July, 2008 with representatives from
the U.S., EU, and Canada participating. With OMB
and OSTP support, DG SANCO built on the summer
dialogue by hosting the 1st International Conference
on Risk Assessment in Brussels in November, 2008.
--OMB has drafted a document for public comment
elaborating how USG agencies should meet their
obligations to analyze international effects in
regulatory impact analyses for proposed final
rulemaking.
BRUSSELS 00000171 012 OF 017
EFFICIENT CAPITAL MARKETS AND PORTFOLIO INVESTMENT
--------------------------------------------- -----
¶52.  The EU Treaty specifically prohibits
restrictions on capital movements and payments
between the Member States and between the Member
States and third countries.
¶53.  The single market project has spurred efforts
to establish EU-wide capital markets. The EU has
acted to implement the 1999 Financial Services
Action Plan (FSAP) to establish legal frameworks for
integrated financial services (banking, equity, bond
and insurance) markets within the EU. By the end of
2008, the EU had adopted and almost fully
implemented 43 of the 45 measures to increase market
and regulatory efficiency and increase coordination
among Member State supervisory and regulatory
authorities, and has acted to implement the
remaining two measures. The Commission has
commissioned a study that is expected to be released
in early 2009 assessing implementation of the FSAP.
¶54.  FSAP measures include Directives on:
Prospectuses (permitting one approved prospectus to
be used throughout the EU), Transparency (detailing
reporting requirements for listed firms, including
adoption of International Accounting Standards),
Markets in Financial Instruments (MiFID - providing
framework rules for securities exchanges and
investment firms) and Takeover Bids (to facilitate
cross-border takeovers), and Capital Requirement
(implementing the Basel II Accord).
¶55.  Accounting Equivalence: On December 12 2008,
the European Commission granted equivalence to the
Generally Accepted Accounting Principles (GAAPs) of
certain third countries (including the U.S.) as from
January 2009. As a result, foreign companies listed
on EU markets will continue to be able to file their
financial statements prepared in accordance with
those GAAPs beyond the transitional period expiring
at the end of 2008.
¶56.  Review of the Prospectus and Transparency
Directives: A Commission review of the Prospectuses
and Transparency Directives is currently underway.
In addition to including provisions implementing the
US, Japan, China, Canada, South Korea and India
GAAPs equivalence to International Financial
Reporting Standards (IFRS) as adopted by the EU, on
January 9 2009, the Commission submitted to public
consultation a proposal to review Directives
2003/71/EC and 2004/109/EC addressing: (1) the
definition of qualified investors; (2) the revision
of exempt offers (including employee shares
schemes); (3) the revision of annual disclosure
obligation; (4) the time limit for exercising the
right of withdrawal; (5) certain thresholds of the
Directives; (6) the effectiveness of the prospectus
summary; (7) the disclosure requirements for offers
with Government guarantee schemes; and (8) the
disclosure requirements for small quoted companies
and for rights issues. A final proposal is expected
to be submitted to Parliament and Council during the
summer of 2009.
¶57.  Review of the Capital Requirement Directive
(CRD): On 1 October 2008, the Commission submitted a
proposal to amend the Capital Requirement Directive
(CRD) by: (1) requiring banking institutions to hold
a higher amount of capital to protect themselves
against the risk of default; (2) creating ad-hoc
Colleges of Supervisors that will supervise banks
with cross-border operations; and (3) requiring
financial institutions that originate securitized
products to retain 5% of the securities. Inter-
institutional negotiations are underway to achieve
single reading adoption by April 2009.
¶58.  Solvency II: In July 2007, the Commission
proposed a Framework Directive to consolidate
existing legislation in the insurance sector and
broadening requirements for the financial position
and solvency of insurance businesses in the EU
BRUSSELS 00000171 013 OF 017
(Insurance Solvency II). This Directive contains
some provisions that would require insurance
companies from third countries to post higher
capital if their home country regulatory structure
is not deemed "equivalent" to the one created by
Solvency II for Europe. The Directive introduces the
principles of Group supervision, strengthening the
powers of the home regulator, and of Group support,
which allow branches to benefit from the support of
the group to meet their capital requirements. The
Commission still hopes for European Parliament and
Council approval of Solvency II in 2009, with
adoption of implementing measures to occur in 2010
and transposition into national law completed by
2012, although the two institutions are deeply
divided on the issues of Group support and Group
supervision, which are supported by the Parliament
but have been rejected by the Council.
¶59.  Reform of mutual funds oversight: On 13
January 2009 the European Parliament adopted
legislation reforming the UCITS Directive to achieve
a less fragmented and more efficient investment fund
market in the EU. UCITS -- Undertakings for
Collective Investment in Transferable Securities --
are investment funds sold under a common set of EU
rules for investor protection and cost transparency,
and that meet basic requirements on organization,
management and oversight of funds. UCITS funds
manage approximately 6.4 trillion and account for
11.5% of EU household financial assets. The
legislation includes a provision for a management
"passport," Qich will make it easier and less
expensive for investment funds to operate outside
their state of origin. The legislation needs now to
be formally approved by Council, and implemented by
Member States by 2011.
¶60.  Sovereign wealth funds: The Commission outlined
its approach to Sovereign Wealth Funds (SWFs) in its
In February 2008 Communication. The EU intends to
keep markets open for foreign capital, support
multilateral efforts (such as those which have been
conducted by the IMF and the OECD), rely on existing
laws, respect the EC Treaty, and ensure
proportionality and transparency. The EU has since
supported the IMF work stream that produced the
Santiago principles for SWFs in October 2008, and
the OECD parallel work stream that in June 2008 led
to the first declaration on a framework for
recipient countries. A final OECD report on the
issue is expected towards the middle of 2009.
¶61.  Retail Services: The EU has also focused on
deepening integration of retail financial services
markets, although this has become less immediate as
a result of the financial crisis. In November 2005,
the Commission issued a new Legal Framework for
Cross-Border Payments in the EU. In May 2007, the
Commission issued a Green Paper laying out goals and
launching a debate on future EU policy on retail
financial services. In November 2007, the
Commission released a package of initiatives to
modernize the EU single market, including
initiatives to increase consumer choice of banking
services, facilitate switching of banking accounts,
complete the development of the Single Euro Payments
Area (SEPA), and improve transparency of retail
investment products. Work in all the above areas is
continuing as scheduled, though is no longer an
immediate concern.
¶62.  The transposition into national law of the
Payment Services Directive, SEPA's legal basis, is
on track, according to the Commission, and should be
completed by 1 November 2009. The initiative enjoys
broad support from the industry, and the Commission
expect that as of November 2009 the cost of a cross-
border direct debit in euro will become the same as
the cost of a national direct debit, as it is
already the case with credit transfers, ATM cash
withdrawals and card payments.
¶63.  On 1 December 2008, the banking industry took
up the Commission's invitation and adopted a set of
'Common Principles for Bank Account Switching'.
BRUSSELS 00000171 014 OF 017
According to the Principles, if a consumer wishes to
change bank, within the same Member State, the new
bank will act as the primary contact point and offer
its assistance throughout the switching process. The
Principles will apply in each Member State beginning
1 November 2009.
Financial supervision
¶64.  As a result of the current financial crisis, a
deep international debate has started on how to
update the current supervisory architecture in order
to detect and prevent future crisis. The EU is
involved directly and indirectly through its Member
States' participation in international bodies (G-20,
FSF, G-8). The Commission has proposed a number of
regulatory measures that directly affect the way in
which financial supervision at EU level will be
carried out in the future (Solvency II, CRD, CRA).
¶65.  Bank supervision authority and enforcement
remains a Member State competence. However, three
EU-wide communities of sectoral financial
supervisors were created to facilitate efficient and
comparable rule making throughout the EU. These
are: the Committee of European Bank Supervisors
(CEBS), composed of Member State supervisors; CESR,
the Committee of European Securities Regulators; and
CEIOPS, the Committee of European Insurance and
Occupational Pensions Supervisors. Financial market
turmoil in the second half of 2007 increased
discussion among EU institutions of ways to
strengthen mechanisms to coordinate financial
supervision across the EU.
¶66.  Review of the decisions setting up the
committees of supervisors: At the beginning of 2009
the Commission is expected to publish its proposal
for the revision of the Commission Decisions
establishing CESR, CEBS and CEIOPS. The revision is
expected to strengthen the role of the Committees
and to include the requirement for each national
supervisor to include in its statutes a European
dimension, to introduce qualified majority voting
for decision-making and to adopt annual work-
programs to enhance the Committees' accountability
towards EU institutions.
¶67.  Banking supervision is also being addressed by
the provisions of the proposal to review the Capital
Requirement Directive, through its focus on
establishing Colleges of Supervisors to oversee the
cross-border banking institutions. CEBS will have a
pivotal role. Adoption of the legislation is
forecasted for April 2009, but negotiations between
Council and Parliament are on-going.
¶68.  The supervision of insurance groups is
addressed in the Solvency II proposal, introducing
the principles of Group supervision, which
strengthen the powers of the home regulator, and of
Group support, which allow branches to benefit from
the support of the group to meet their capital
requirements. There are still important differences
between Council and Parliament, but supporters of
the legislation hope for approval by April 2009.
¶69.  De LaRosiere group: In October 2008, EC
President Barroso established a high-level group on
cross border financial supervision. The group,
chaired by former IMF Managing Director Jacques de
Larosiere, is expected to present its report in
March 2009. The aim of the panel is to suggest ways
to restructure and reform supervision in a way which
is adequate for the common European market, but also
bearing in mind the need to collaborate on
supervisory issues in the global context. The De
Larosiere report will likely also serve as the basis
for the EU contribution to the G-20 meeting in
April.
¶70.  In addition, European monetary union gives the
European Central Bank limited authority over the
banking system in the 16-member Euro zone in certain
areas, including the issuance of Euro currency,
banking statistics, a smooth payments system, and
BRUSSELS 00000171 015 OF 017
advising on banking supervision.
Additional information is available at:
http://ec.europa.eu/internal_market/finances/ actionp
lan/index_en.htm.
POLITICAL VIOLENCE
------------------
¶71.  Political violence is not unknown in the
European Union, but it is, in general, extremely
rare. Such incidents are almost always regional in
nature, and individual Country Commercial Guides
should be consulted for more details on problems in
specific regions.
CORRUPTION
----------
¶72.  Per EU Treaty Article 280 (5), the EU and the
Member States are jointly responsible for the fight
against fraud and corruption affecting the EU's
financial interests. A detailed overview of EU and
Member State achievements in this regard (e.g.,
increasing EU capacity to conduct anti-fraud
investigations, greater cooperation with
international partners) is provided in the EU's
Anti-Fraud Office (OLAF) most recent annual report
(for Year 2007) on the fight against fraud.
This report is available online at the EU's Anti-
Fraud Office website:
http://ec.europa.eu/anti_fraud/reports/olaf/2 007/en.
pdf
The report broadly outlines the developments that
the Community has taken in terms of protecting its
financial interests and addressing fraud. An
overview is given of the major developments in 2007.
BILATERAL INVESTMENT AGREEMENTS
-------------------------------
¶73.  The EU does not yet have any bilateral
investment treaties in the traditional sense,
although virtually all Member States have extensive
networks of such treaties with third countries.
However, the EU's "Europe," "Association" and other
such agreements with preferential trading partners
often contain provisions directly addressing the
treatment of investment, generally providing at
least for establishment, and repatriation of capital
and profits. In the context of EU enlargement
negotiations, the U.S. Government has conveyed to
the EU its concern that U.S. bilateral investment
treaties with accession countries should not be
adversely affected.
¶74.  Other regional or multilateral agreements
addressing the admission of investors to which the
Community and/or Member States have adhered include:
The OECD codes of liberalization, which provide for
non-discrimination and standstill for establishment
and capital movements, including foreign direct
investment;
The Energy Charter Treaty (ECT), which contains a
"best efforts" national treatment clause for the
making of investments in the energy sector; and, The
GATS, which contains an MFN obligation on all
measures affecting the supply of services, including
in relation to the mode of commercial presence.
¶75.  In November 2007, the U.S. and the European
Commission formally launched a bilateral investment
dialogue to reduce barriers to transatlantic
investment and promote open investment regimes
globally (see Openness to Foreign Investment above).
OPIC AND OTHER INVESTMENT INSURANCE PROGRAMS
--------------------------------------------
¶76.  OPIC programs are not available in the EU, as a
whole, although individual Member States have
benefited from such coverage.
BRUSSELS 00000171 016 OF 017
LABOR
-----
¶77.  Issues such as employment, worker training, and
social benefits remain primarily the responsibility
of EU Member States. However, Member States are
coordinating ever more closely their efforts to
increase employment through macroeconomic policy
cooperation, guidelines for action, exchange of best
practices, and support from various EU programs.
The best information regarding conditions in
individual countries is available through the labor
and social ministries of the Member States.
¶78.  Helpful information from the EU can be found on
websites for the European Commission's Directorate-
General for Employment and Social Affairs,
(http://ec.europa.eu/dgs/employment_social/in dex_en.
htm), and on the Eurostat website
(http://epp.eurostat.ec.europa.eu/portal/page ?_pagei
d=1090,30070682,1090_33076576&_dad=portal&_sc hema=PO
RTAL).
¶79.  In general, the labor force in EU countries is
highly skilled and offers virtually any specialty
required. Member States regulate labor-management
relations, and employees enjoy strong protection.
Member States have among the highest rates of
ratification and implementation of ILO conventions
in the world.
¶80.  There is a strong tradition of labor unionism
in most Member States. In many cases, the tradition
is stronger than the modern reality. While Nordic
Member States (Denmark, Finland, and Sweden) still
have high levels of membership in labor unions,
several large Member States, notably Germany and the
United Kingdom, have seen their levels of
organization drop nearly to U.S. levels (around 20-
30 percent). French labor union membership, at less
than 10 percent of the workforce, is lower than that
of the U.S.
FOREIGN-TRADE ZONES/FREE PORTS
------------------------------
¶81.  European Union law provides that Member States
may designate parts of the Customs Territory of the
Community as free trade zones and free warehouses.
Information on free trade zones and free warehouses
is contained in Title IV, Chapter Three, of Council
Regulation (EEC) no. 2913/92 establishing the
Community Customs Code, titled, "Free Zones and Free
Warehouses" (Articles 166 through 182).
¶82.  Article 166 states that free zones and free
warehouses are part of the Customs Territory of the
Community or premises situated in that territory and
separated from the rest of it in which:
Community goods are considered, for the purposes of
import duties and commercial policy import measures,
as not being on Community customs territory,
provided they are not released for free circulation
or placed under another customs procedure or used or
consumed under conditions other than those provided
for in customs regulations;
Community goods for which such provision is made
under Community legislation governing specific
fields qualify, by virtue of being placed in a free
zone or free warehouse, for measures normally
attaching to the export of goods.
Articles 167-182 detail the customs control
procedures, how goods are placed in or removed from
free zones and free warehouses and their operation.
¶83.  The use of free trade zones varies from Member
State to Member State. For example, Germany
maintains a number of free ports or free zones
within a port that are roughly equivalent to U.S.
foreign-trade zones, whereas Belgium has none. A
full list of EU free trade zones last updated
September 2007 is available online at:
BRUSSELS 00000171 017 OF 017
http://ec.europa.eu/taxation_customs/resource s/docum
ents/customs/procedural_aspects/imports/free_ zones/l
ist_freezones.pdf.
FOREIGN DIRECT INVESTMENT STATISTICS
------------------------------------
¶84.  According to U.S. statistics (the U.S. Bureau
of Economic Analysis), the value of U.S. investment
in the Member States of the European Union, on a
historical-cost basis as of the end of 2007, was
just over USD $1.38 trillion, up from $1.23 trillion
at the end of 2006. The United Kingdom was the
major EU host to U.S. foreign direct investment,
with $399 billion, followed by the Netherlands ($370
billion), Luxembourg ($114 billion), and Germany
($107 billion).
For virtually all EU Member States, the largest
"foreign" investors are in fact from other Member
States. More statistics on U.S. investment abroad
are available at:
http://www.bea.gov/international/datatables/u sdpos/u
sdpos_07.htm
WEB RESOURCES
-------------
Internal Market DG Q Financial Services Unit
http://ec.europa.eu/internal_market/finances/ actionp
lan/index_en.htm
Economic and Financial Affairs DG
http://ec.europa.eu/economy_finance/index_en. htm
Employment and Social Affairs DG
http://ec.europa.eu/dgs/employment_social/ind ex_en.h
tm
Office for Harmonization in the Internal Market

http://oami.europa.eu/

EU Anti-Fraud Office

http://ec.europa.eu/anti_fraud/index_en.html

Eurostat Q EU Statistical Office
http://epp.eurostat.ec.europa.eu/portal/page? _pageid
=1090,30070682,1090_33076576&_dad=portal&_sch ema=POR
TAL
U.S. Bureau of Economic Analysis Q Department of
Commerce

http://www.bea.gov

European Patent Office

http://www.epo.org/index.html

MURRAY

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    Links for the day



  5. Supreme Court of the UK, Which Habitually Throws Out European Patents, May Overturn Troublesome Unwired Planet v Huawei Decision

    A lot of European Patents are facing growing scrutiny from courts (Team UPC, including Bristows, publicly complains about it this month) and "greenwashing" of the Office won't be enough to paint/frame these patents as "ethical"



  6. German Federal Patent Court Curbs the Patent Maximalism of the EPO, Which Promotes Patents on Nature and/or Maths Every Single Day

    European courts are restraining the EPO, which has been trying to bypass or replace such courts (with the UPC); it certainly seems as though European Patents rapidly lose their legitimacy or much-needed presumption of validity



  7. Any 'Linux' Foundation Needs to Be Managed by Geeks, Not Politicians and PR People

    Linux bureaucracy has put profits way ahead of technical merits and this poses a growing threat or constitutes risk to the direction of the project, not to mention its ownership



  8. Links 23/4/2019: Kodi 'Leia' 18.2 and DeX Everywhere

    Links for the day



  9. Code of Coercion

    Entryism is visible for all to see, but pointing it out is becoming a risky gambit because of the "be nice!" (or "be polite!") crowd, which shields the perpetrators of a slow and gradual corporate takeover



  10. António Campinos Would Not Refer to the EPO's Enlarged Board of Appeal If He Did Not Control the Outcomes

    António Campinos and his ilk aren’t interested in patent quality because his former ‘boss’, who publicly denied there were issues and vainly rejected patent quality concerns as illegitimate, is now controlled by him (reversal of roles) and many new appointees at the top are "yes men" (or women) of Campinos, former colleagues whom he bossed at EUIPO (as expected)



  11. Links 22/4/2019: Linux 5.1 RC6, New Release of Netrunner and End of Scientific Linux

    Links for the day



  12. USPTO and EPO Both Slammed for Abandoning Patent Quality and Violating the Law/Caselaw in Order to Grant Illegitimate Patents on Life/Nature and Mathematics

    Mr. Iancu, the ‘American Battistelli’ (appointed owing to nepotism), mirrors the ‘Battistelli operandi’, which boils down to treating judges like they’re stooges and justices like an ignorable nuisance — all this in the name of litigation profits, which necessitate constant wars over illegitimate patents (it is expensive to prove their illegitimacy)



  13. IRC Proceedings: January 27th, 2019 – March 24th, 2019

    Many IRC logs



  14. IRC Proceedings: December 2nd, 2018 – January 26th, 2019

    Many IRC logs



  15. Links 21/4/2019: SuperTuxKart's 1.0 Release, Sam Hartman Is Debian’s Newest Project Leader (DPL)

    Links for the day



  16. The EPO's Use of Phrases Like “High-Quality Patent Services” Means They Know High-Quality European Patents Are 'Bygones'

    The EPO does a really poor job hiding the fact that its last remaining objective is to grant as many European Patents as possible (and as fast as possible), conveniently conflating quality with pace



  17. A Reader's Suggestion: Directions for Techrights

    Guest post by figosdev



  18. Links 20/4/2019: Weblate 3.6 and Pop!_OS 19.04

    Links for the day



  19. The Likes of Chartered Institute of Patent Attorneys (CIPA), Team Campinos and Team UPC Don't Represent Europe But Hurt Europe

    The abject disinterest in patent quality and patent validity (as judged by courts) threatens Europe but not to the detriment of those who are in the 'business' of suing and printing lots of worthless patents



  20. The Linux Foundation Needs to Change Course Before GNU/Linux (as a Free Operating System) is Dead

    The issues associated with the Linux Foundation are not entirely new; but Linux now incorporates so many restrictions and contains so many binary blobs that one begins to wonder what "Linux" even means



  21. Largest Patent Offices Try to Leave Courts in a State of Disarray to Enable the Granting of Fake Patents in the US and Europe

    Like a monarchy that effectively runs all branches of government the management of the EPO is trying to work around the judiciary; the same is increasingly happening (or at least attempted) in the United States



  22. Links 19/4/2019: PyPy 7.1.1, LabPlot 2.6, Kipi Plugins 5.9.1 Released

    Links for the day



  23. Links 18/4/2019: Ubuntu and Derivatives Have Releases, digiKam 6.1.0, OpenSSH 8.0 and LibreOffice 6.2.3

    Links for the day



  24. Freedom is Not a Business and Those Who Make 'Business' by Giving it Away Deserve Naming

    Free software is being parceled and sold to private monopolisers; those who facilitate the process enrich themselves and pose a growing threat to freedom in general — a subject we intend to tackle in the near future



  25. Concluding the Linux Foundation (LF) “Putting the CON in Conference!” (Part 3)

    Conferences constructed or put together based on payments rather than merit pose a risk to the freedom of free software; we conclude our series about events set up by the largest of culprits, which profits from this erosion of freedom



  26. “Mention the War” (of Microsoft Against GNU/Linux)

    The GNU/Linux desktop (or laptops) seems to be languishing or deteriorating, making way for proprietary takeover in the form of Vista 10 and Chrome OS and “web apps” (surveillance); nobody seems too bothered — certainly not the Linux Foundation — by the fact that GNU/Linux itself is being relegated or demoted to a mere “app” on these surveillance platforms (WSL, Croûton and so on)



  27. The European Patent Office Does Not Care About the Law, Today's Management Constantly Attempts to Bypass the Law

    Many EPs (European Patents) are actually "IPs" (invalid patents); the EPO doesn't seem to care and it is again paying for corrupt scholars to toe the party line



  28. The US Supreme Court (SCOTUS) Once Again Pours Cold Water on Patent Maximalists

    Any hopes of a rebound or turnaround have just been shattered because a bizarre attack on the appeal process (misusing tribal immunity) fell on deaf ears and software patents definitely don't interest the highest court, which already deemed them invalid half a decade ago



  29. Links 17/4/2019: Qt 5.12.3 Released, Ola Bini Arrested (Political Stunts)

    Links for the day



  30. Links 16/4/2019: CentOS Turns 15, Qt Creator 4.9.0 Released

    Links for the day


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