Examination of Witnesses (Questions 440
- 459)
THURSDAY 13 DECEMBER 2007
Ms Jacqueline Minor and Ms Marian Grubben
Q440 Lord James of Blackheath:
You could be a post-box to where it goes?
Ms Grubben: Yes.
Ms Minor: Can I just come back to an earlier
question about how much we can influence the regulations? Again,
I think there are two levels where SOLVIT can operate to influence
the content of the regulations. Most of our cases, as Marian has
said, relate to incorrect application as a result of an individual
official taking a wrong or ill-informed decision, but there are
some cases where the official has given the only answer that he
or she is able to give in the light of national rules and we do
have a number of instances where, as a result of the problem being
brought to light from SOLVIT, national rules have been changed,
so we call those SOLVIT-plus cases and Marian can probably talk
about one or two examples. The other thing, of course, is that
the information feeds back into the Commission, so we know, for
example, that there is a big problem with late payment of VAT
refunds and we can tell our colleagues who make the policy in
DG Tax that this is an area where the rules are not generally
working properly and we can look at how to make them work better.
That might mean a change in the rules or it might mean some other
initiative about clarifying with national administrations how
they should work or better training for national officials.
Q441 Baroness Eccles of Moulton:
How fluid are the policies and the rules? Sometimes you cannot
manoeuvre within the regulations and sometimes you can. What sort
of feel is there for the amount of manoeuvrability you have got?
How flexible are they?
Ms Minor: At Commission level?
Q442 Baroness Eccles of Moulton:
Yes.
Ms Minor: For example, there is currently being
debated by the Council and the Parliament a package on mutual
recognition to facilitate free movement of goods between Member
States, and certainly the position that we took in the discussions
leading up to making the proposal was in part influenced by our
experience on the ground from the SOLVIT centres, so it is one
of the many things that feed into the conception of a proposal
or a new policy but sometimes it will mean altering the existing
rules and altering the existing rules means going through the
legislative process, which in the European context is quite lengthy
and cumbersome, or can be.
Q443 Baroness Eccles of Moulton:
And there is only that much space for it anyway?
Ms Minor: Yes.
Q444 Baroness Eccles of Moulton:
So it will depend very much. Anyway, you have got some flexibility.
Ms Minor: Yes. For example, in goods package
one of the things we felt very strongly about was the need to
have nominated contact points again because of this problem that
so many people have of not knowing where to go to get a yes or
a no, spending a lot of time just wandering around the system
trying to get in.
Ms Grubben: It is a general problem. Again,
if you look at this experience with SOLVIT, many parts of the
administration have a mandate to apply the rules as well as they
can, so probably the measure of success is the number of files
they handle over the course of a year, but SOLVIT has as a mandate
to solve problems so they are accountable for solutions and that
is a quite different perspective. I think that is why it works
and that is why probably if you appoint a single point of contact
in general you at least have somebody who is accountable for making
sure that SMEs and citizens can exercise these rights. That is
fairly crucial.
Q445 Lord Walpole: I wish
to pick up two words that I heard this morning and find out what
SOLVIT has done, if anything. The words "agricultural payments"
came up this morning. To say they are being paid well in England
is absolute rubbish, is it not? They are being paid in Wales and
Scotland and Northern Ireland and they have probably mostly been
paid; it starts round about Christmas time, 1 December. When did
we finish paying the people in England last year? I think I got
my very last payment about six months ago. That is absolutely
disgraceful. Does SOLVIT ever get asked about late payments by
a government of EU money, which is what it amounts to?
Ms Grubben: No, this is not part of the SOLVIT
mandate.
Q446 Lord Walpole: You would
not be allowed to?
Ms Grubben: No.
Q447 Lord Walpole: If you
have tax and VAT repayment problems what is the difference between
that and money that the government should have paid you because
it is EU money?
Ms Minor: The remit may seem artificial to you
but it is because it is a citizen in one Member State and the
government of another Member State, so there is a cross-border
element, whereas in the situation which you are talking about
it is an English farmer waiting for his payment from the English
authorities. That is not something in which SOLVIT gets involved.
Ms Grubben: It is seen as a bit of a problem
sometimes that SOLVIT can only deal with cross-border problems
because there are plenty of problems that arise from bad application
of rules which do not have this cross-border element. The Commission
is right now setting up a pilot project. Was that mentioned at
all?
Ms Minor: That was mentioned this morning.
Ms Grubben: I will not mention it again then.
Q448 Lord Walpole: I feel
incensed about this, I really do. I think it is an absolute disgrace.
There is no point taking it up with our Government. It is taken
up about once every three months in the House. There was just
one other phrase that I rather liked you using and that was "intellectual
property". Can you tell me a little bit more about that?
Perhaps it is a little wide of the mark here but are we looking
for pan-European intellectual property rights?
Ms Minor: There are pan-European intellectual
property rights already.
Q449 Lord Walpole: Completely?
Ms Minor: At the Community level there are the
Community trade mark and the Community design, so there you make
a single registration application to the office in Alicante and
you acquire intellectual property rights for the whole territory
of the European Community. There is also a European patent which
is issued from Munich and which is not part of Community law.
That is a separate treaty in international law and they give you
a bundle of national patents, so you tick the countries for which
you want patent protection when you make your application.
Q450 Lord Walpole: And when
they are infringed do you have to sue each person in each different
country?
Ms Minor: Indeed. There has been on the table
a proposal for a Community patent for about ten years. There was
one that was then withdrawn and then there was a second one. The
idea has been kicking around for a long time without so far any
real prospect of agreement. We came close under the Irish Presidency
about six years ago, I think, but that subsequently disintegrated.
In terms of intellectual property the focus now is first of all
on trying to find affordable, effective and rapid solutions to
litigation because your right is only as good as your ability
to defend it. One of the proposals we are looking at is how the
Community can best assist patent holders in resolving their cross-border
problems, and there is already a proposal on the table that comes
from the European patent organisation, which is called EPLA, the
European Patent Litigation Agreement. Really our question is,
should we be trying something separate or should we be trying
to bolt on a Community element to that or can that form the basis
of a later agreement within the Community, and there are discussions
going on around that. Also, next year we will be turning our attention
not to the regulatory framework but to more practical questions
about, for example, fee structures in national patent offices:
can we encourage national patent offices to have lower fees for
smaller companies?
Q451 Lord Walpole: I was going
to say this is very relevant to SMEs, is it not?
Ms Minor: Yes. It is also about helping SMEs,
for example, to defend their intellectual property in third countries,
I know that is something we are looking at, the problem of SMEs
which perhaps sub-contract manufacturing of parts, or indeed the
whole thing, to one of the larger third country trading blocs
and then find that the design or the invention has been copied,
and they themselves back in London or back in Berlin find it quite
difficult to take action. If we had somebody on the spot who could
help them go through the necessary hoops in Beijing or Moscow
or wherever it be, would that help? These are the kinds of issues
we are looking at, not so much the overarching regulatory framework
but what practically can we do to assist small companies first
of all in getting ideas to market and getting them protected properly
and then, once they are there, making sure that their intellectual
property rights are effectively exercised and not abused.
Lord Walpole: Thank you. I find that
very helpful.
Q452 Chairman: Before returning
to SOLVIT can we just pursue Lord Walpole's question a bit further?
There is a proposal effectively coming out of the new treaty to
create an EU intellectual property right.
Ms Minor: This has already been done on the
basis of the existing 1957 Treaty. The change in the new treaty
will simply make it explicit that this power to agree EU intellectual
property rights exists. The trade mark, for example, was done
under the existing treaty. The difficulty in agreeing Community
property rights is that language arrangements have to be agreed
unanimously, and although there are always difficulties with the
content the main difficulty does not lie with the content of the
right but with the language regime that underpins it.
Q453 Lord Walpole: And presumably
where you can sue people when they infringe them?
Ms Minor: And to a lesser extent the jurisdictional
system that is attached to it.
Q454 Lord Walpole: That would
have to be central though, would it not?
Ms Minor: At the apex it would have to be central.
I do not think at first instance it has to be central.
Q455 Chairman: We took evidence
on this on Monday and the talk was about regionalisation. How
many languages are used in the present system when you register
a European patent? How many languages is it translated into?
Ms Minor: This is becoming slightly technical.
There is something called the London Protocol which will reduce
the number of languages into which it has to be translated. That
protocol has now, I think, but I am not a specialist in this field,
been ratified by a sufficient number of states to enable it to
become operational and therefore you will only have to make your
initial deposition in English, French and German.
Q456 Chairman: This is for
the non-European Union?
Ms Minor: This is for the European patent. You
would then be called upon to provide translations but of a much
smaller part, not the whole file, for the countries where you
are seeking protection, so if you are asking to have patent protection
in the Benelux countries and the Czech Republic you have to give
an abstract. The Community trade mark office, I believe, works
in five languages—English, French, German, Italian and Spanish.
Q457 Chairman: Could we return
to Lady Eccles's question? If you turn to page 24 of scoreboard
16, this is the document EO708B59, it is under tab 4, and it is
figure 17, the staffing levels. It shows that in 2006 by GDP size
the second largest, third largest and fourth largest countries
in the European Union were not paying much attention to SOLVIT
at all. I do not know whether the situation has changed but it
says "low" and by low staffing levels I assume that
means that the governments were placing less importance and significance
on having a centralised staff in the countries to help with incoming
and outgoing inquiries about problems with trading across the
internal market. When you look at that list you think, "Crikey!
The United Kingdom is in the `adequate', no-one is in the `high'."
Is it working?
Ms Grubben: There is no "high" list
because that would have got us into too much trouble, I think,
deciding who was adequate and who was high, plus the resources
on paper do not always tell the whole story. It is true that all
the countries in the category "low" are very worrying,
and especially in France the situation has been fairly hopeless
from the beginning because in France the SOLVIT centre has in
practice been run by trainees for the past five years, and however
good these trainees are, they tend to disappear after five or
six months so there was no continuity, plus the core job of a
SOLVIT centre is to try and convince another part of the administration
to change their decision. If you give that task to a trainee the
results are probably not going to be as good as when you employ
people who have a bit more experience in that, so this is a problem
and we have been struggling with it for years because it is very
difficult for the Commission to go to a Member State and say,
"You should employ more people in your SOLVIT centre".
Also, some of the SOLVIT centres, like Germany, we think are understaffed
but they do come up with very good resolution rates and case handling
times and then they tell us, "But we are doing a good job.
Why are you telling us that we are understaffed?". The thing
is that their method of keeping case flow limited is to try and
reject as many cases as they can if they are not strictly within
the mandate of SOLVIT. That is more difficult to measure and also
more difficult to use as an argument to demonstrate that they
do not have enough resources. The only thing we can do about this
is produce these annual reports, these scoreboard figures, and
put peer pressure on the Member States who are not taking SOLVIT
seriously enough. Also, in bilateral meetings at the higher levels,
such as Director General, every time they go to a country where
we have this type of problem with SOLVIT it is raised in the briefing
and it is also raised in practice. We do see some improvement
because for the next annual report we can say that for the first
time in its history SOLVIT France now has a full-time official
and we hope that that will improve the situation. For Germany
they have also received some additional resources. For Belgium
and Austria there are also improvements so I think the picture
we will be able to paint of 2007 is a bit more positive than for
last year.
Q458 Chairman: Have any of
these countries said, "If you will not help an Estonian company
trying to expand into France we are not going to accept any inquiries
from France to expand into Estonia"? All this is voluntary.
It is a charity. There is no legal compulsion about this.
Ms Grubben: No, that is true, but the way it
works in practice is that if a SOLVIT centre is understaffed it
does not mean that they will not deal with questions but they
will deal with them more slowly or not as well as they could if
they had more personnel. Nevertheless, amongst SOLVIT centres
there is a large degree of solidarity and team spirit, so the
poor trainee who is running SOLVIT France is in a bit of a difficult
situation and he or she will try to do the best they can. It is
not a tit-for-tat on a case-by-case basis. Of course, SOLVIT centres
start to complain to us when they think they do not get good treatment
in the other SOLVIT centre and we have seen last summer SOLVIT
centres which closed down for six weeks, and that, of course,
is not acceptable. There is a bit of that but in general I think
the team spirit in the network is something we should preserve
and encourage.
Q459 Chairman: I think that
those who served on the old Committee B, like Lady Eccles and
myself, were impressed when we heard an initial reference to it
nine months ago and then six months ago. When will you have the
figures for 2007? Presumably these statistics will be prepared
on the same basis, roughly, will they?
Ms Grubben: Yes.
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