The Eu Dimension In Intellectual Capital – Treaties And The Acquis Communautaire

The EU Dimension in Intellectual Capital – Treaties

and the Acquis Communautaire

Birsemin JurgensChemist/Quality Control Expert

TEPEK Train the Trainers SeminarNovember the 24th 2008 Ankara,

Turkey

Birsemin Jurgens TEPEK Seminar 24-25 November 2008

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Contents What actually is the EU Acquis Communautaire? Why it is unique for Turkey as far as the number of

chapters is concerned Opened and closed chapters up until today The Consolidated EU Treaties Primary and secondary EU legislation Legal instruments according to relevance The acquis and intellectual capital The acquis and human capital Does TEPEK have to be embedded in the acquis or not?


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What actually is the EU Acquis Communautaire?

The ‘acquis communautaire’ can best be described as being constantly in motion

It had a starting point but can never reach a final destination

It refers to something the European Union jointly collected over time

This ‘collection’ is the totality of European Union Law, or in other words, the ‘body of EU Law’


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What actually is the EU Acquis Communautaire?

In size it amounts to more than 80 000 pages of legislation

It is printed in all working languages of the European Union

It has to be translated into the language of a Candidate Country such as Turkish

Most parts of the acquis can not be negotiated – what can be negotiated is how and when to transpose it


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Why it is unique for Turkey as far as the number of chapters is concerned

The acquis has been divided into ‘chapters’ These chapters are similar to the acquis

itself - not finite but constantly in motion as and when new legislation is added

Every candidate country has different economic and societal realities

Hence, every CC may require an adaptation of some or all of the acquis

Some countries may have 31, other 35 chapters to comply with


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Why it is unique for Turkey as far as the number of chapters is concerned/IC may be hidden in most!

Free movement of goods Freedom of movement for workers Right of establishment and freedom to

provide services Free movement of capital Public procurement Company law Intellectual property law Competition policy Financial services Information society and media Agriculture and rural development Food safety, veterinary and

phytosanitary policy Fisheries Transport policy Energy Taxation Economic and monetary policy Statistics

Social policy and employment(including anti-discrimination and equal opportunities for women and men)

Enterprise and industrial policy Trans-European networks Regional policy and coordination of

structural instruments Judiciary and fundamental rights Justice, freedom and security Science and research Education and culture Environment Consumer and health protection Customs union External relations Foreign, security and defence policy Financial control Financial and budgetary provisions Institutions Other issues


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Opened and closed acquis chapters for Turkey as a CC up until today

Last Updated on 6 November 2008 Opened and Provisionally Closed:

25) Science and Research Opened:

6) Company Law 7) Intellectual Property Law 18) Statistics 20) Enterprise and Industrial Policy 21) Trans-European Networks 28) Consumer and Health Protection 32) Financial Control


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Screening Reports Approved at the Council of the European Union And Negotiations are to be Opened: 17) Economic and Monteray Policy 26) Education and Culture

Chapters Waiting for the Submission of Turkey's Negotiation Position Paper: 4) Free Movement of Capital 10) Information Society and Media

Screening Reports Approved at the Council of the European Union with Benchmarks: 1) Free Movement of Goods 3) Right of Establisment and Freedom to Provide Services 5) Public Procurement 8) Competition Policy 9) Financial Services 11) Agriculture and Rural Development 12) Food Safety, Veterinary and Phytosanitary Policy 16) Taxation 19) Social Policy and Employment 27) Environment 29) Customs Union


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Draft Screening Reports are to be Approved at the Council of the European Union: 2) Freedom of Movement of Workers 13) Fisheries 14) Transport Policy 15) Energy 22) Regional Policy and Coordination of Structural Instruments 23) Judiciary and Fundemental Rights 24) Justice, Freedom and Security 30) External Relations 33) Financial and Budgetary Provisions

Screening Reports have not been dreafted yet: 31) Foreign, Security and Defence Policy


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The Consolidated EU Treaties

The treaties constitute the European Union’s ‘primary legislation’, which is comparable to constitutional law at national level. They thus lay down the fundamental features of the Union, in particular the responsibilities of the various actors in the decision-making process, the legislative procedures, under the Community system and the powers conferred on them. The treaties themselves are the subject of direct negotiations between the governments of the Member States, after which they have to be ratified in accordance with the procedures applying at national level (in principle by the national parliaments or by referendum)

(Process and Players, EU)


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Primary and secondary EU legislation

At present, the Treaty of Nice is in force as the Treaty of Lisbon has not as yet been ratified by all member states

While the treaties are not as such negotiated chapter by chapter during Turkey’s EU accession process its contents do form part and parcel of the negotiations and are part of the acquis


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Primary and secondary EU legislation Treaties International Agreements Secondary Legislation Case Law = the acquis, the body of EU Law Example for Case Law: Public Procurement in Austria A town hall did not publish a tender as required by EU

law. A competitor alerts the EU Commission. Austria is taken to Court not the town hall as member states must transpose the acquis with regards to a Directive which is one of the three legal instruments the EU has at its disposal


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Legal instruments according to relevance

Regulation

Adopted by the Council in conjunction with the European Parliament or by the Commission alone, a regulation is a general measure that is binding in all its parts. Unlike directives, which are addressed to the Member States, and decisions, which are for specified recipients, regulations are addressed to everyone.

A regulation is directly applicable, which means that it creates law which takes immediate effect in all the Member States in the same way as a national instrument, without any further action on the part of the national authorities.

(Source: Process and Players, EU; next two and this slide)


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Legal instruments according tor relevance

Directive Adopted by the Council in conjunction with the European

Parliament or by the Commission alone, a directive is addressed to the Member States. Its main purpose is to align national legislation.

A directive is binding on the Member States as to the result to be achieved but leaves them the choice of the form and method they adopt to realise the Community objectives within the framework of their internal legal order.

If a directive has not been transposed into national legislation in a Member State, if it has been transposed incompletely or if there is a delay in transposing it, citizens can directly invoke the directive in question before the national courts.


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Legal instruments according tor relevance

Decision Adopted either by the Council, by the Council in

conjunction with the European Parliament or by the Commission, a decision is the instrument by which the Community institutions give a ruling on a particular matter. By means of a decision, the institutions can require a Member State or a citizen of the Union to take or refrain from taking a particular action, or confer rights or impose obligations on a Member State or a citizen.

A decision is: an individual measure, and the persons to whom it is addressed must be specified individually, which distinguishes a decision from a regulation, binding in its entirety.


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The acquis and intellectual capital

My task was to establish the state-of-the-art about EU legislation on intellectual capital and whether it exists in the first place

We need to examine the EU acquis We have to analyze treaties, secondary

legislation, case law as well as international agreements

There are tools at hand to facilitate our desk study


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I approached this study by focusing on intellectual capital and EU case law first

In case of dispute over the subject and a court case we would have an immediate summary of current law(s) about IC

Let me run you trough the databases


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Pathway number 1: www.europa.eu, Documents, Case Law, Search, Fields or (words in) Text, Words in text = I C

Results: 60 entries in text on IC but no individual judgement about IC!

7 entries linking Intellectual Property Rights with IC but again no individual judgement on IC


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We understand that IC is mentioned in legal documents but does not seem to have its own legislation as such

When searching for it we have to scrutinize chapters ranging from IPR to Free Movement of Goods

In other words we need an analytical examination of the acquis


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As part of this analytical examination we must dismantle the acquis further:

www.europa.eu, Documents, EUR-LEX, Treaties, Consolidated Treaties (Nice), pdf.-document, keyword search on IC: no entry

Please remember to spell IC as Intellectual Capital!


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www.europa.eu, Documents, EUR-LEX, general search on IC = 29 entries, but no law on IC, only resolutions on economic policies et cetera

www.europa.eu, Documents, EUR-LEX, Search all legislation, IC as individual keyword = no entry

The difference between EUROVOC and your own personal choice of keywords


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www.abgs.gov.tr, English, Screening, Chapter 7 Explanatory Meeting, Country Session = IC not mentioned

End of search or rather not: transfer effort to establish a linkage between either IPR and IC or IC and Human Capital


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The acquis and human capital Similar search yields results: there are 47 secondary EU

legislation based entries on Human Capital

2008/618/EC: Council Decision of 15 July 2008 on guidelines for the employment policies of the Member States

OJ L 198, 26.7.2008, p. 47–54

32008R0452 Regulation (EC) No 452/2008 of the European Parliament and of the Council of 23 April 2008 concerning the production and development of statistics on education and lifelong learning


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Does TEPEK have to be embedded in the acquis or not?

We found legislation incorporating human capital references but no individual legislation about it

There is likewise no independent legislation about intellectual capital

Opinions and resolutions as well as recommendations are not necessarily to be taken as a future legislation

Hence, the acquis does NOT have a coherent position on either HC or IC


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Does TEPEK have to be embedded in the acquis or not?

We would need to find out which aspects of IC and TEPEK would be facilitated if IC enters the acquis domain

A CC would need to fully comply with it in that case

How many acquis chapters could benefit from introducing IC more formally?

What can we extract from TEPEK by using IC in order to decide whether a legislative framework would be beneficial?


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Does TEPEK have to be embedded in the acquis or not? Education Lifelong learning Management University modules Regional responsibilities Value adding SME Financing Criteria Right of establishment Who ‘owns’ individual IC, can it be owned by anyone

except for the ‘original owner’ The list is not exhaustive…


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Glossary

ABGS/EUGS: Turkish EU Secretariat General CC: Candidate Country Council of Ministers: EU Institution EEC/EC: European (Economic) Communities EU: European Union after Maastricht EUR-LEX: EU Law depository MS: Member State of the EU NMS: New Member State of the EU


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Acknowledgements

Process and Players, EU www.europa.eu www.abgs.gov.tr K IC 1.2 (SPICE materials) Seval İşik, ABGS http://en.wikipedia.org/wiki/

Acquis_communautaire


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Bio

METU Graduate Chemist and Quality Control Expert Professional experience UK, DE, TR EU Joint Research Centre: Chemical

Legislation Workshop, Study Visit for SEE Ministry Officials

TUBITAK Project Management Training REACH (EU chemical legislation)


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Contact details

[email protected]

Çok teşekkür ederim – Thank you

The Eu Dimension In Intellectual Capital – Treaties And The Acquis Communautaire

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