Software Patents Circumvent European Parliament

Tom writes "Despite the european parliament's vote to exclude software patents, the patent lobby is pressing forward and patentability of software is on the agenda of a workgroup whose advise the european council will likely follow. The european council is at odds with the parliament concerning their stance on software patents. The patent lobby is facing a narrow loss in the parliament, which has voted against software patents, but now circumvents democracy by convincing the council. If they succeed, software patents could be coming to Europe before christmas." <update> The links above seem to have stopped working for me - however, ffii is carrying the news as well.

glad to see

that not only the USA is corrupt and is controlled by big businesses.

hey Europe... Hope you like corperations telling you what you can and can't do, because unless you guys get VERY vocal right now, they will own your arses in a matter of weeks.

Re:glad to see

Eh, the Republicans want to give my money to the big corporations, the Democrats want to give it to people who don't/won't work. Either way, I get hosed.

I just hope the EU doesn't pass the patents law, it's the only hope for fixing it in the USA. If the EU enacts legislation that gives them a clear competitive advantage and costs the US Government revenue (spelled TAX DOLLARS) then the US might abolish it's patent crap as well. If the EU folds, then darkness will simply cover the Earth or all IT innovation will go to the 3rd world or China.

Re:glad to see

The sole reason we grant patents is to serve the public interest.

The public wants many useful, novel, nonobvious inventions to be made. Furthermore, they want the inventions to come to market in the form of products, so that they can truly be taken advantage of. But they also don't want to pay anything if at all possible, nor suffer any restrictions with regards to the inventions or products, or if that's unavoidable, then they want to pay and be restricted as little as possible. And the inventive work of others should not be interfered with at all, or if at all, as little as possible.

These are the multiple, equal, competing interests of the public, and the idea is to find a balance between them where these public interests are best served. Since very often increasing or decreasing the degree to which one is satisfied will have a disproportionate effect on another, it's fairly tricky. Furthermore, whenever one implements a patent system, it should be as simple and unrestrictive as possible in order to accomplish any overall gain in public good. And the public good must always be satisfied more than it would be if there were no patent system at all, since otherwise the best solution would be to abolish the whole deal.

In the realm of software, there is already a tremendous satisfaction of the public interest without any real involvement of software patents. Therefore, unless they will make things better still -- by causing there to be more invention, and more productization, and lower costs and restrictions -- they're a bad idea. And software has been going along amazingly well without patents, and seems to be doing worse when patents are employed. So it looks like software at least is an unusual environment where patents are harming the satisfaction of the public good rather than promoting it.

What is wrong with someone saying "this is my product, and if you want to use it you gotta play by my rules". ... Why is it better for someone OTHER then the creators of the program to decide what should happen to it?

Because they have no leg to stand on. If a caveman came up to you and demanded $100 every time you used fire in some way (to smoke, to cook, to drive a car, etc.) you'd ignore him. And he couldn't do anything to stop you from using fire, even though he invented it.

The inherent nature of inventions is to spread and to be used by anyone who wants to use them and understands how. There is no natural right for the inventor of fire to be able to prevent other people from using fire. People can use fire against his will. And do.

Because this might frustrate inventors, and because we want them to invent stuff, and not just mope around, (actually we want all the stuff on that list above) we set up an ARTIFICIAL system whereby we might WILLINGLY not use their inventions if they don't let us, in order to prop them up.

Basically patents are a form of subsidy. It's like dirt farmers. In order to maintain what are seen as good prices on crops, and to avoid overproduction, the government pays farmers to not grow anything. If we let competition take its natural course, they would grow stuff, there'd be a glut on the market, and many farmers would go out of business. Clearly, they have no natural right to be paid for not doing anything. Hell, I wish that I could get a handsome salary for just sitting around. But we pay farmers because it serves our own best interests (since we feel we want small farmers and fairly stable prices). If we stopped feeling that farm subsidies were a good idea, they'd stop getting paid.

Same deal with patents: inventors have no natural right to control their inventions (other than to not make them or reveal them in the first place) but MAY have artificial rights granted if it serves the best interests of those who are granting the rights. And the grants don't have to be made.

Re:glad to see

As far as I knew, patents are there to protect the inventors not the public.

Nope. Since the relevant clause in the Constitution deals with both patents and copyrights, I think it's fair to draw from both areas of caselaw.

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

"The copyright law, like the patent statutes, makes reward to the owner a secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, Chief Justice Hughes spoke as follows respecting the copyright monopoly granted by Congress, 'The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.' It is said that reward to the author or artist serves to induce release to the public of the products of his creative genius." United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).

Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984).

A patent confers a monopoly on its holder, and the law does not allow the granting of these valuable franchises to private individuals, with consequent public detriment, unless there is a concomitant public benefit.

Beckman Instruments, Inc. v. Chemtronics, Inc., 428 F.2d 555 (5th Cir. 1970).

Your quote only describes what the PTO does. Not why, or even why we have a PTO in the first place!

As far as patents and public interest - most people could care less other then the fact that they want to get everything for free (thats too bad, because life doesn't work that way).

Nevertheless, getting everything for free would be ideal. While we can't have that unfortunately, we try to balance getting everything and getting it for free.

I think the caveman example is bad - for multiple reasons: 1) his patent expired 2) you cannot patent something you did not invent - and fire was not a man-made function.

1) He's a caveman. He never would've had a patent to begin with. But if you believe that patents solely should exist for the benefit of the inventor of the patented technology, then it is impossible to support their expiration.

2) If our patent system had been there, he could have patented fire. This is because he's uniquely gotten ahold of a controlled and limited form of fire made by man, and that doesn't exist in nature. The same reasoning is how you can patent substances that are particularly pure or easily gatherable, etc. where they nevertheless do exist in nature. Happens in the biotech field all the time.

It serves our interest to help them because if we don't - soon you will find that only major corporations own the farms (i personally hate KFC).

That's right -- and similarly, we only have a patent system to serve our own interests.

Here is a question: If an inventor should not have a right to collect a profit (as he see's fit) for something that he spent his time/money creating ---- why should someone who works at McDonalds serving hamburgers make a profit?

Apples and oranges, my friend.

Patents, like copyrights, are NOT awarded for labor. Whether an invention is made by a five year old in the course of fifteen minutes, or whether it's made by hundreds of scientists and engineers working together on a years-long billion dollar project, the patents they get are not materially different.

And an inventor who spends a fortune in time and money to invent something that has already been invented -- even if he didn't know about it -- gets ab

Sigh.

I really don't know what to think anymore. What has happened to democracy? Corporations seem to hold sway over the political arena with utter exclusivity these days. How could free speech have been replaced so easily with corporate lobbying? I say that if Microsoft wants their damn patents so badly, they drag a soap carton out to the public park.

It pains me to see Europe slipping down the same slope. Learn from our folly, yeah?

Re:Sigh.

Sigh, Sigh, sigh... "Any idiot can face a crisis - it's the day-to-day living that wears you out." - Checkov.

In case you didn't notice, most "modern" democracies are just feudalism in disguise. Does the fact that politicians wear... Business Suites maybe clue you in? Or how about that in the US all leaders are the ridiculously rich? Or that money == power in these countries? The new feudalism is business owners == the land owing aristocrats, peasants == employees!! Ever noticed you can't get rich being an employee? Unless you run a big ass company, or wait... Own a business.

And government is just there to cater to business, not the "people". Once in 4 years the peasants have a chance to elect someone from a tiny little rich group. We have no recourse if we elect a lier or looser. The government is open every day for lobbyists and the rich and powerful, but only once every four years for everyone else.

This is modern democracy for you, this is what the US wants everywhere in the world, including the EU. Because they are the richest, they will rule it. Via the wealthy, via the big corporations.

See Noam Chomsky for some more enlightenment.

The price of freedom..

..is eternal vigilance.

The anti-patent lobby in the EU has achieved great things, but the pro-patent lobby is extremely determined even in the face of a clear democratic mandate against software patents in the European and many national Parliaments. They know the system, they seem to have the support of many unelected Eurocrats, and they can and will exploit every possible loophole to legalise the over 30,000 illegally granted patents in the EU. This is yet another example of this.

The important thing is to keep up the pressure. When this topic has come up on /. in the past, there are always a few nohopers, who think any opposition to software patents is futile and we may as-well give up. These defeatists are the greatest allies of the pro-patent lobby, and they are wrong, as what progress we have made has demonstrated.

In short, keep fighting, don't give up, we have won a number of battles, but the war is far from over.

Re:The price of freedom..

This is a good point, but seriously do keep up the fight.

If you live in the EU, drop another quick email to your MEP and national parliamentarians. It doesn't have to be a long rant against patents - just point out the massive opposition, the threat to jobs and the duplicity of voting on software patents at an environment or fisheries meeting without even a vote.

In the UK there will likely be a general election next year. Contact your MP now [faxyourmp.org.uk] it costs nothing bar a few minutes of your time. You can get contact details for your MEP here [eu.int].

An editor that checks links?

Truly, Christmas has come early this year!

EU Failure

I'll probably get modded down for this, but oh well.

I find that this is just another example of how the EU is circumventing democracy. Instead of an enlightened body which supposedly has the needs of the body of European nations it encompasses in mind, the EU is quickly turning out to be nothing more than another bureaucracy set out to protect only its own best interests.

Even beyond that, however, there is another issue at stake. If a law is passed which standardizes software patents, all of the individual countries which make up the EU will be forced to accept it. So, say that, for example, the government of Germany would rather not accept software patents. Too bad, they'll have to anyway, despite the fact that the majority of the people there may not want it. So much for the will of the people.

So, for all of you globalists out there who saw the consolidation of Europe into a single entity as a good thing, it looks like you're reaping what you've sown. The EU is quickly becoming just another big, centralized, corporatist, United-States-esque government.

Re:EU Failure

This has little to do with EU-specific stuff. The Council of Ministers consists of ministers from the various national governments, and it's them who are pushing this through. It's Sweden covered by Ericsson and Scania, Finland by Nokia, the Netherlands by Philips, Ireland by all US companies it provides a low tax haven for etc.

Some corrections and overview

For the record: if the Council approves its pro-software patents text, all is not yet lost since there is still a second reading in the European Parliament. A downside of this second reading is that the EP can only amend the Council's text using absolute majorities there (i.e., half the number of MEPs must vote in favour of an amendment, regardless of how many abstain or are even present at the vote).

The big news is however that the Council Presidency is basically trying to circumvent the Council itself. In May, they reached a political agreement on the most pro-software patents text seen in EU legislative circles until now. At the Council meeting in May, Poland first abstained, then Germany and the Commission introduced some fake compromise amendment, and after a break Poland was not consulted again about its position, because there was a qualified majority in place even without its support. They confirmed [ukie.gov.pl] afterwards their position did not change because of the bogus compromise amendment.

Recently, Poland confirmed its position [slashdot.org], after everyone in a meeting with HP, Novell, Microsoft and others confirmed that the text of the Council of Ministers allows pure software patents (contrary what is often claimed). And apart from Microsoft and the Polish Patent Lawyers association, everyone agreed that software patents would be bad for the Polish economy. Because the voting weights changed on 1 November (due to the joining of all the new member states to the EU), Poland's support suddenly became necessary and thus the qualified majority was officially broken.

Other notable events since the political agreement of May are the fact that in July the Dutch Parliament asked its government to change position [slashdot.org] from being in favour to abstention, and at the start of this month all parties of the German Parliament did the same [nosoftwarepatents.com].

So the Council currently has an ugly text on the table which is no longer supported by a qualified majority in any way, but by means of diplomatic pressure on Poland and others the Dutch presidency (lead in this case by Minister Brinkhorst) is trying everything it can to push it through nevertheless.

This gets me so totally angry

I've never been so angry at these crooks in government before now. Dutch parliament rejects software patents, European parliament rejects software patents, they'll hurt the Dutch software industry very badly (I believe the total number of software patents held by Dutch IT companies is 3) and now the fuckers want to avoid all of that by adding it on to some fisheries decision.

Help me, fellow Dutchmen, how can we make this as public as possible as quickly as possible? I've never done anything active in politics before, but this must go into the spotlight! Give me some hints...

1950: What if we had Software Patents back then?

This is the argument that we should be pushing. Back then you probably could have patented Bits and Bytes. How about it it happened in 1980: Makers of Wordstar and Visi-calc whould have locked the wordprocessing and Spreadsheet markets, respectively. Makers of CP/M would lockup PC OS' so MS would have never existed! What this will do is make all new and exciting stuff happen where SW patents do NOT exist.

Did what I could...

....at least, I hope I did, still open for suggestions.

I wrote to the people who are supposed to 'represent' me, and asked them how the hell our country (the Netherlands) could be behind this push for Software Patents, when a majority of parliament is against it.
A couple of months ago saw a petition voted in to have the minister of foreign affairs retract his support for software patents. And now aparently not only are we voting yes, we're also behind pushing the Polish to give up their resistance to these patents?
Even worse, this minister is from a party which supposedly is the most vocal supporter of the european -democratic- proces, demanding more power to the european parliament, and less to the council. (Great way to show it guys, now I know why I voted for you :( )

So a call to all dutch Slashdotters, write an email to your representatives. Not much time left to act.

CDA:
[e-mail]
P vdA:
[e-mail]
VVD:
Vragen stellen aan tweede kamerleden [www.vvd.nl]
D66:
http://www.d66.nl/contact [d66.nl]

(not a complete list, I know)

Re:Lobbys

amazing isn't it! I love this quote from TFA: Laura Creighton, software entrepreneur, venture capitalist and vice-president of FFII, comments:

"Before today it was possible for generous people to look charitably at this text as an example of a tragic mistake, not malice. But not with this last-minute maneuvering. Only the most committed opponent to the democratic process would believe that the proper response to the widespread consensus that there is something profoundly wrong with the Council's text, is to race it through with an A-item approval the week before Christmas in a Fisheries Council Meeting. The bad smell coming from Brussels has nothing to do with the fish."

whining on /. won't help

You gotta admit that its a tour-de-force that they're pulling on us year after year.

What have you done about these issues? As Edmund Burke said:

"All that is necessary for the triumph of evil is that good men do nothing".

So if you haven't actually tried to do something about this (perhaps by writing to your elected representatives, or donating to organisations that oppose software patents) then you have nobody to blame for this but yourself.

Re:whining on /. won't help

My MEP is none other than Arlene McCarthy herself. You can rest assured I have had correspondence with this democratically elected representative and she totally ignored me, handing back an obnoxious stock email that simply re-iterated some bogus rhetoric and whinged about the nasty people ringing her up to tell her software patents were bad. I don't think she even read my letter, none of the points I made were addressed. She just hit "Send -> Template -> SWPAT Stock Letter 2" or whatever.

Nothing has made me as cynical about politics as that did. Of all the people in the world, I'm supposed to have influence over her living as I do in her constituency, and it turned out that I had just as much influence as somebody living in Mexico.

Re:Whoever posted this doesn't understand the EU..

Don't you hate it when you correct a mistake with a mistake? :)

Actually the only institution that can propose legislation is the European Commission. Both the council and the parliament can amend though.

What I'm wondering is how they think to get this past parliament. "sneaking" it into the text or not, the subject is one where the EP has co-decision right. Which means it's shouldn't become law until the EP has voted on it

Re:Whoever posted this doesn't understand the EU..

"The European Parliament has no ability to propose legislation - it's always the Council of Ministers that does this..."

And this is precisely why the EU is the least democratically accountable institution in Europe today. In every sitting national government on the European continent today, legislation is created and passed by a (presumably) democratically elected parliament, or that house of a bicamel parliament that is directly elected. In many cases, European governments are formed either directly out of the elected body of parliament itself (as in the British model) or out of some more complex relationship that certainly includes the directly elected house of parliament and a democratically elected executive (such as the French system).

By contrast, the European Concil is a body appointed by national governments, that has the authority to directly legislate. While the EU Parliament can approve or "rubber stamp" an act of the EU Council much like the "soviet" era parliament, if it chooses to reject a council law, the Council is given the power to override Parlaiment unless a super majority (66%) chooses to oppose it.

Indeed, the EU transational governance is not very different in functional arrangements and democratic principles to that that of the old Soviet Union. And they wish to further ratify this defective system through a constitution that retains this principle undemocratic form of governance as well as expanding the power of the EU into a true European Government.

As noted, the original council draft on European patents was rejected by the European parliament. In a democratically functional society and government this would in effect have been a veto. It is to the shame of Europe and to the very principles of democratic governmance that this alone was not enough to kill the council directive, and that the will of the elected parlaiment, and most importantly of all, the ONLY democratically "legitimate" and accountable institution in the entire EU, can so easily be rejected.

Personally I do not believe Europe is ready for transational Governance. There is no true transational political expression today, perhaps with the exception of the "Greens". By contrast, when American federalization occured, there was already well established and popular trans-state political movements and proto-parties, such as Federalists, etc. By contrast, when we look at the EU parliament, it is composed of people elected from strickly individual national political parties. There are no "European Socialists", for example, though there are members of the French socialists, Finland national party, German Social Democrats, etc. This lack of true transational European political expression I believe is why Federalising Europe is impractical at this time, and certainly helps to explain why some believe they could bully through an undemocratic and defective institution onto European nations like the EU system of today.

Re:Whoever posted this doesn't understand the EU..

Personally I do not believe Europe is ready for transational Governance. There is no true transational political expression today, perhaps with the exception of the "Greens". By contrast, when American federalization occured, there was already well established and popular trans-state political movements and proto-parties, such as Federalists, etc. By contrast, when we look at the EU parliament, it is composed of people elected from strickly individual national political parties. There are no "European Socialists", for example, though there are members of the French socialists, Finland national party, German Social Democrats, etc. This lack of true transational European political expression I believe is why Federalising Europe is impractical at this time, and certainly helps to explain why some believe they could bully through an undemocratic and defective institution onto European nations like the EU system of today.

Although I agree with the gist of your post, this paragraph is simply untrue. Major parties are organized into international parties (example [socialisti...tional.org]), from where an european-level party could easily emerge, if required.

However, European elections are nowadays largely a nationwide affair, so there's no need for a public view of an European level party. The infrastructure for european-wide parties is there, but not the need.

I can't imagine federalism wouldn't provide the parliament with more power so, even for that effect alone, it would be a Good Thing(tm). Europe is more prepared for federalism than for the current undemocratic, bureaucratic model of government.

Re:Whoever posted this doesn't understand the EU..

Now I don't want to interrupt your rant *but* the council consists of ministers of the different EU countries. These governments are democratically elected so the council is democratic. Even better we should ask ourselves why the "more European" institution -the parliament- is apparently more interested in the good of the people than the council of national governments, which -following the accepted logic around here- are less removed from the local concerns and therefore somehow superior.

I also remind you that the Dutch government explicitly *ignored* a decision of the Dutch parliament on how to vote (which was binding iirc. It was on /. a few months ago but I don't remember exactly and I'm lazy so perhaps someone else could look it up). Me thinks we should be less concerned about what is wrong with the EU and more about what is wrong with our national governments. (doesn't mean that there aren't enough things that are wrong with the EU. Unfortunatly the constitution which would solve some of them -e.g. a more powerful parliament- has no chance of surviving the British referendum)

Re:Whoever posted this doesn't understand the EU..

Now I don't want to interrupt your rant *but* the council consists of ministers of the different EU countries. These governments are democratically elected so the council is democratic.

No, it isn't. The Council's decisions are largely not taken by the ministers, but by faceless bureaucrats holding secret meetings of which the results are often kept secret [ugent.be] as long as possible.

In case of the software patents directive, those faceless bureaucrats are the same people that conduct the day to day operations of the European Patent Office. The same EPO that introduced software patents. They are mostly delegates from the various national patent offices.

And of course, the ministers don't decide how to vote on texts by themselves, they have advisors. You can have two guesses who those advisers generally were in this case.

Because the Council operates so intransparently, it's very difficult for the national Parliaments to keep their governments in check. Further, the Council itself does not operate democratically at all. Just look at how Poland is being bullied by the Dutch Presidency to accept a directive it does not like at all.

Even better we should ask ourselves why the "more European" institution -the parliament- is apparently more interested in the good of the people than the council of national governments, which -following the accepted logic around here- are less removed from the local concerns and therefore somehow superior.

Because the MEPs are directly elected by local people and their reports are fully public and their way of working is quite transparent. They obviously aren't all saints, but in general they are quite reachable by "common people" (unlike governmental ministers, let alone governmental bureaucrats). I also remind you that the Dutch government explicitly *ignored* a decision of the Dutch parliament on how to vote (which was binding iirc. It wasn't binding, but the government said they would abide by the result. However, they made a peculiar interpretation of it which does not oblige them to change their vote after all.

It was on /. a few months ago but I don't remember exactly and I'm lazy so perhaps someone else could look it up). Me thinks we should be less concerned about what is wrong with the EU and more about what is wrong with our national governments.

There are definitely also problems there.

(doesn't mean that there aren't enough things that are wrong with the EU. Unfortunatly the constitution which would solve some of them -e.g. a more powerful parliament- has no chance of surviving the British referendum)

Many people doubt whether it will improve more than it will hurt. For example, one of the articles in that European Constitution simply states "Intellectual property shall be protected", without further specifying in any way what this intellectual property is. So forbidding software patents may actually become unconstitutional under that text. Maybe allowing free thoughts will become unconstitutional as well, since you may be using thought processes that someone else used before and he has a constitutional right to "protection" of those.

Re:Whoever posted this doesn't understand the EU..

I wonder how long it will take before the parliament drives a revolution, kicking out dangerously corruptible, interest-conflicted and unaccountable council and commission.

I don't know, but I don't think it is soon enough since I think it's long overdue. "Power to the Parliament", now that is a great slogan!

Re:If anyone is still confused

I *think* this is what is happening. The Council is formed from the ministers of the Member States of the Union.

Correct. Note that although the Council is a single legal/political body, depending on the subject that's handled different ministers attend.

It proposes legislation on the advice of the EU Commission (yet another body made up of appointed bureaucrats whose purpose is to develop and uphold the workings of the Union).

No, the Commission proposes the legislation (possibly on advice of the Council, I'm not sure).

This directive has been proposed under the so-called co-decision arrangement with the European Parliament - the directly elected body of the EU.

In co-decision, Parliament has some measure of veto over the Council - it is the strongest of the arrangements between the parties. Council has sent the draft directive to Parliament.

No, the Commission did.

Parliament could adopt the proposed legislation - whereupon it would have taken effect in the EU, instead it proposed amendments.

Indeed. It could have also downright rejected it, in which case the directive project would be stopped immediately.

The amendments have then gone back to Council which now has a choice. It can choose to accept Parliament's amendments and produce a compromise directive. Or it can override Parliament - but only by a unanimous vote by the members of Council. This is why the Poles are being strong-armed.

No, if the Commission agrees with the amendments they propose (which it does), they only need a qualified majority (basically 2/3rds of the weighted votes + a minimum number of supporting countries). Since 1 November, the voting weights have changed and now Poland is required [nosoftwarepatents.com] to have a qualified majority.

If Council rejects the Parliamentary amendments and fails to vote unanimously, the legislation must then head towards conciliation and arbitration which is brain-bleedingly complicated since the Commission becomes involved.

No, if the Council does not manage to get the required majority, the directive is in limbo. In theory, it can stay forever at the Council's first reading stage (unless the Commission retracts the proposal). Conciliation only happens later in the process. First, after the Council agrees, it goes back to the European Parliament for a second reading.

There, the EP can only amend the text that returned from the Council with absolute majorities (nr_of_MEPs/2+1 must vote in favour in order for an amendment to be accepted, regardless of how many MEPs are actually present for voting).

Next, if the EP accepts the text without amendments, the directive is approved. It can also be downright rejected. Finally, if it's accepted with amendments it goes back to the Council for a second reading.

I don't know the exact rules in the Council for second reading, but if they accept the Parliament's amendments the directive is again approved, and if they amend it, it goes back to the EP for the third reading.

In the third reading, the EP can only say yes or no. If they say no, then conciliation happens.

So all is not lost, the insitutions are working, although I have to wonder about the fisheries involvement. I would have thought those ministers have their own problems at the moment.

An item at a Council session can either be a A-point (formality for approval) or B-point (discussion point). Because the Council reached a political agreement in May, it's technically possible to bring it as an A point on the Council for formal adoption of a Common Position (which would mean official acceptance by the Council).

Such an A-point can happen at any Council formation. So even though the competitivene