The EU council voted on 18 May in favour of changes to the EU Software Patents Directive that would allow the widespread patenting of software in Europe. This political agreement is not legally binding until the proposal is formally adopted, which is expected to happen when the EU Council meets at the end of November.
But, due to new voting weights for EU member states that came in on Monday -- in Article 12(1) of the Accession Act -- the countries which supported the change now fall short of a qualified majority by 16 votes, according to an analysis published by Florian Mueller, the founder of an anti-patent Web site.
Mueller told ZDNet UK that he believes it is undemocratic to get a political agreement on a past majority and is therefore calling for a recount.
"The qualified majority must be in place on the very day of the formal decision, not half a year earlier on a tentative basis," said Mueller. "That is why we demand a recount."
Mueller is now lobbying representatives from various countries to request that the EU Council proposal is withdrawn as there needs to be further discussion or vote.
Rufus Pollock, the UK spokesman for the Foundation for a Free Information Infrastructure (FFII) told ZDNet UK that the change in voting weights is important. He says that even if the EU Council decides to formally adopt the directive, it could be deemed illegitimate by the European Court of Justice.
"It might well be possible, should the Council not take this into account, for the parties affected by the adoption of the directive to go to the European Court of Justice to ask for its annulment," said Pollock.
Even before the change in voting weights, the EU Council's vote in May was controversial as it removed many of the changes introduced in 2003 by the European Parliament, that would have limited the degree to which software programs could be patented.
Since the EU Council's initial decision, the Dutch and German parliaments, have discussed making changes to the EU Council's proposal on software patents -- in contradiction to their representatives on the EU Council who voted in favour of making the change.