1. The EU Dimension in Intellectual Capital Treaties and the
Acquis Communautaire Birsemin Jurgens Chemist/Quality Control
Expert TEPEK Train the Trainers Seminar November the 24 th 2008
Ankara, Turkey
2. 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?
3. 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
4. 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
5. 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
6. 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
7. Opened and closed acquis chapters for Turkey as a CC up
until today
Last Updated on6 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
8.
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
9.
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
10. The Consolidated EU Treaties
The treaties constitute the European Unions 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)
11. 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 Turkeys EU accession process its contents do form
part and parcel of the negotiations and are part of the acquis
12. 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
13. 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)
14. 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.
15. 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.
16. 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
17. The acquis and intellectual capital
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
18. The acquis and intellectual capital
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
19. The acquis and intellectual capital
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
20. The acquis and intellectual capital
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!
21. The acquis and intellectual capital
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
22. The acquis and intellectual capital
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
23. 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 15July 2008 on guidelines for
the employment policies of the Member States
OJ L 198, 26.7.2008, p. 4754
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
24. 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
25. 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?
26. 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