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The EU Dimension in Intellectual Capital – Treaties and the Acquis Communautaire

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. Contents. What actually is the EU Acquis Communautaire?

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The EU Dimension in Intellectual Capital – Treaties and the Acquis Communautaire

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  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 24th 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? Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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’ Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  6. 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 Why it is unique for Turkey as far as the number of chapters is concerned/IC may be hidden in most! Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  7. 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 Law7) Intellectual Property Law18) Statistics20) Enterprise and Industrial Policy21) Trans-European Networks28) Consumer and Health Protection32) Financial Control Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  8. Screening Reports Approved at the Council of the European Union And Negotiations are to be Opened:17) Economic and Monteray Policy26) Education and Culture • Chapters Waiting for the Submission of Turkey's Negotiation Position Paper:4) Free Movement of Capital10) Information Society and Media • Screening Reports Approved at the Council of the European Union with Benchmarks:1) Free Movement of Goods3) Right of Establisment and Freedom to Provide Services5) Public Procurement8) Competition Policy9) Financial Services11) Agriculture and Rural Development12) Food Safety, Veterinary and Phytosanitary Policy16) Taxation19) Social Policy and Employment27) Environment29) Customs Union Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  9. Draft Screening Reports are to be Approved at the Council of the European Union:2) Freedom of Movement of Workers13) Fisheries14) Transport Policy15) Energy22) Regional Policy and Coordination of Structural Instruments23) Judiciary and Fundemental Rights24) Justice, Freedom and Security30) External Relations33) Financial and Budgetary Provisions • Screening Reports have not been dreafted yet:31) Foreign, Security and Defence Policy Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  10. 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) Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Turkey’s EU accession process its contents do form part and parcel of the negotiations and are part of the acquis Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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) Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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. Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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. Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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! Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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? Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  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’ • The list is not exhaustive… Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  27. 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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  28. 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 Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  29. 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) Birsemin Jurgens TEPEK Seminar 24-25 November 2008

  30. Contact details jurgensbirsemin@yahoo.co.uk Çok teşekkür ederim – Thank you Birsemin Jurgens TEPEK Seminar 24-25 November 2008

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