EU Patent Examiners Warn Parliament Will Have "No Power"
zoobab writes "The Staff Union of the European Patent Organisation sent a letter to the President of the European Parliament, warning that after the EU accedes to the European Patent Convention, there is a risk that the European Parliament would be 'circumvented' as a legislator. The European Patent Organisation is in no way a model of democracy: national patent offices are in power, there is no parliament involved in the decision-making process, and diplomatic conferences are held behind closed doors. There are plans to create a central patent court in Europe, which would operate in a democratic vacuum, not counterbalanced by any legislative assembly, in particular not the European Parliament. Such a central patent court could also validate software patents via caselaw (as the German Supreme Court recently did with the Microsoft FAT patent). And Microsoft, IBM, and SAP are lobbying in Brussels not to reopen consideration of the software patent directive."
The United Patent Litigation System replaces the EPLA. The official justifications are that it will decrease bureaucracy and costs. As a side effect (which is the real motivation of some pushers), it will push aside the European Parliament (which threw out swpats in 2005), and give more power to the European Patent Office (which approves almost as much as the USPTO does). More details:
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Here they are again pushing their agenda.
This will not end until we start using the guillotine again.
The pursuit of software patents is teh pursuit of fraud and public deception.
abstraction physics application (including software)is a human right and duty.
Beware of software patent pursuers bearing gifts.
the equivalent would have been in medieval times the monks to block the printing press after they realized that not only bibles can be printed!
Oh my God I hate these lobbyists and IP-lords!
It's probably easy to figure out where I personally stand, given that I founded and ran the European NoSoftwarePatents campaign and that I also opposed the original proposal named EPLA (European Patent Litigation Agreement). Nevertheless I tried my best to give both sides of the argument fair and accurate representation of their statements and views on my blog.
There are indeed reasons to be concerned about a drift toward software patents in Europe, not only at the legislative level but also in terms of judicial decisions. In the past, the highest German court in such matters applied tough tests such as the controllable-forces-of-nature criterion to distinguish software patent applications from technical inventions. However, a few weeks ago it upheld one of Microsoft's FAT patents, as this slashdot article also mentions. As I explained on my blog, this could be but need not be a "FATal patent ruling". The detailed decision must be analyzed once available in order to understand whether the ruling related to the question of patentable subject matter. It's possible that it was only about inventiveness/prior art, given that the relevant court is an appeals court to which typically only certain (but very rarely all) aspects of a case are referred. In that case, the appeals court would not have been allowed to comment on non-referred issues (no matter how striking those might have been). Patent attorneys in Europe often try not to raise the question of patentable subject matter in their appeals because they would bite the hand that feeds them if they achieved rulings restricting the scope of patentable subject matter. They generally prefer to make invalidation cases on such grounds as "not inventive [as compared to prior art]", "not new [due to prior art]", "not sufficiently disclosed".
Another example of software patents that are already (unfortunately) quite enforceable in Europe are multimedia codec patents, such as MP3 and MP4 patents. It's become an annual ritual at CeBIT that dozens of confiscations of "pirated product", of which MP3 players are probably the largest group, take place on the first day of the show. I mentioned this in a recent blog post on multimedia patents.
BTW : good info -
While I appreaciate the links and information. I even more appreaciate the fact that someone finally said what as needed (and was heard).
As a patentholder (no, hardware, not software), I can vouch for the fact that a centralized european patent office is sorely needed. Currently, getting a patent in all of europe depends on first finding a patent office that WILL grant you the patent (which can be hard because most of 'em sit on their arse saying; "Ee dont under stand this technology, it's new to us". Yeah morons, ofcourse it's new, otherwise I wouldn't be patenting it, now would I ?), and then running around to every OTHER patent office in europe and saying "But THEY already gave me the patent rights".
And this is not only difficult, but also expensive and an entry barrier for new technology movers and inventors.
--- To err is human... Am I more human than most ?
This situation is simply patent backers designing a system a nameless faceless politician can sign into law and keep his job.
Democracy in name for the sake of the wealthy.
For those who are interested in what kinds of initiatives the EU is planning to take in connection with intellectual property rights beyond that new patent and patent court system, here's a summary of a speech by the Commission official driving the "patent reform" effort. Keywords: data retention, ACTA, Digital Agenda, aftermath of Microsoft case, Google Street View, open standards, open content, criminal prosecution of IPR infringers, trademarks, AdWords.
I have spent a fair amount of time in Brussels in recent years, starting with my campaign against software patents in Europe. While I understand what you mean to say with your criticism, I would disagree that the EU is inherently undemocratic, let alone antidemocratic.
The EU is a complex construct: it's neither a federation such as the United States or Germany nor an international organization such as the World Trade Organization. It's an in-between, it's a supranational alliance of countries, and that entails a setup in which the national governments of the EU Member States still wield a lot of power. Otherwise we would have (for better or worse, which is not the question) a system more similar to that of the United States, in which the sovereignty of each state is very limited compared to that of an EU Member State.
The original idea of a united Europe was a peace project. It was not about liberalizing markets, although even that is not necessarily against the interests of citizens. As someone who travels a lot in Europe, I can see some of the benefits that the EU has brought to citizens, such as the cap on mobile phone roaming charges that the EU imposed a few years ago.
The complexity of the EU's structures has the effect that only a limited number of people even understand how decisions are taken. There's probably just a minority of US citizens who know exactly all of the procedural possibilities concerning conciliation between the Senate and the House (such as the "deemed passed" principle that the Democrats were considering at some point to push the healthcare bill through), but at least people in the US will know their senators and probably also their congressmen (for their constituencies). Here in Europe, people generally don't know their MEPs (Members of the European Parliament). The media don't report because Brussels seems so remote, processes are complicated and time-consuming, and even when a legislative decision is taken, it usually takes time before it gets implemented by the Member States (enshrined in national laws) -- two years is the standard period that EU directives allow for that purpose. Most of the problems that people criticize when talking about the EU's "democratic deficit" could be solved by the Fourth Estate (the media), but there's a chicken-and-egg problem because citizens don't know about "Brussels" for lack of media coverage and the media don't report much for lack of interest by their audiences.
I also think one has to acknowledge in all fairness that the European Parliament's powers have been significantly enhanced by the Lisbon Treaty. I can understand if people say it was not enough, but there has certainly been progress, with now pretty much all decisions requiring the support of the Parliament (either through co-decision or assent procedures).
Or to put it politely;
Originality is the art of concealing one's sources.
"The distinction between creation and discovery is not clear cut or rigorous.Nor is it clear why such a distinction, even if clear, is ethically relevant in defining property rights. No one creates matter; they just manipulate and grapple with it according to physical laws. In this sense, no one really creates anything. They merely re arrange matter into new arrangements and patterns. An engineer who invents a new mousetrap has rearranged existing parts to provide a function not previously performed. Others who learn of this new arrangement can now also make an improved mousetrap. Yet the mousetrap merely follows laws of nature. The inventor did not invent the matter out of which the mousetrap is made, nor the facts and laws exploited to make it work.
Similarly, Einstein's "discovery" of the relation E=mc2, once known by others, allows them to manipulate matter in a more efficient way. Without Einstein's, or the inventor's, efforts, others would have been ignorant of certain causal laws, of ways matter can be manipulated and utilized. Both the inventor and the theoretical scientist engage in creative mental effort to produce useful, new ideas. Yet one is rewarded, and the other is not".(Kinsella, Stephan. "Against Intellectual Property").
"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property".
--Thomas Jefferson, to Isaac McPherson 13 Aug. 1813 Writings 13:333--35
"Kill 'em all and let Root sort 'em out"
It's like the Federal Reserve all over again.
Its really simple, nobody wants to deal with the matter for the honesty of the matter.
Neither Proprietary patent supporting parties nor open source patent free parties.
Why is also simple. The honesty of the matter of software would result in not only no software patents but also in genuinely free software, free in the since of making it possible for anyone to create software.
Current software development methodologies are like the roman numeral system in mathematics, where it takes specialization and trade secrets to do any complex math. But then came along the Hindu-Arabic decimal system that enabled the population to do math even beyond the experts. And the experts probably argued that only a fool would think nothing can have value (the zero place holder), as today the coding experts claim the user is not interested in creating programs. Where the fact is that users just don't want it to be a full time job requiring years of schooling and/or heavy personal pursuit. They just want to create or modify occasionally, no different than occasionally using math or a calculator to determine a result.
But the current software development methodologies do not support "occasionally". And the unnecessary level of overcomplexifabulocation in software development is the "only a fool would want to do it occasionally" false defense.
Help Prove Software is not Patentable and end this matter once and for all, and it is provable, otherwise you are playing othello, reversi.
And anyone who has been following this software patent battle damn well knows this othello, reversi game well, even if only as a spectator.
As far as I can make out the current idea of the EU is to provide a bunch of cash for all the MEPs, their flunkeys, other assorted civil "servants" and just about anyone else even vaguely connected with the whole rotten edifice.
The EU commission (iirc) hasn't even had it books audited and correctly signed off for about 12 years.
while (true != false) process_more_stupid_code();
1. Design crippled file system (8.3 filenames)
2. "Invent" "ingenious" fix that fixes the aforementioned flaw somewhat (long filenames)
3. Patent & license. Win.
No "???" here. Only "WTF" and where is our society heading?
No, the main goal have always been further integration and democracy within the Union, however, certain groups who often complain that the EU is undemocratic refuse to let it become more democratic, i.e. Eurosceptics such as the British Conservative party or the UKIP, because apparently a democratic Union would undermine national sovereignty.
"Civis Europaeus sum!"
anything that Eu does now have to be approved by the Eu parliament. If parl doesnt approve it, it cant happen.
Read radical news here
> The EU threw out patents on software /per se/
What makes you say that? The background was that the legislation excludes "swpats as such", and the EPO interprets so narrowly to be almost non-existant. The story with the EU is that the Commission proposed to clearly allow software patents, and it was discussed at great volume levels for a few years, and the Parliament threw out the Commission's proposal almost unanimously.
This means there was no change in the legislation, so were back to the crappy situation where the EPO is granting whatever it likes, but it's still true that the Parliament's action was to throw out a proposal to legitimatise software patents. Here's the story at greater length:
Expert in software patents or patent law? Contribute to the ESP wiki!
4. Profit!
Atleast microsoft got the whole bussiness thing right ;)
You asked "How can it happen?" Here's why: the proposed United Patent Litigation System is based on a system of international treaties, and those would transcend the geographic boundaries of the EU.
Today that's already the case to some extent, with the European Patent Office not being an EU institution but an international organization in its own right, governed by the European Patent Convention (EPC). The EPC is a treaty that has more countries as parties to itself (the treaty) than the EU has Member States. Examples of non-EU EPC countries include (but are not limited to) Switzerland, Turkey, Norway, Monaco... but right now there's still the supremacy of EU law in the 27 EU Member States, while it's rather unclear to what extent EU law could still affect the reformed and united EU + non-EU patent and patent court system.
Where you're sort of right is that if the European Parliament wanted to block that whole reform altogether, it could theoretically do so. Since that reform is a system of five treaties, all of which are in a logical AND combination (any one fails, the whole package deal falls through), the Parliament could jettison the whole reform by just voting, for an example, against the EU law that would be needed to create a so-called Community patent, or by voting against the treaty establishing the United Patent Litigation System (for international treaties that the EU joins as a virtual country, the European Parliament's assent by a qualified majority of its members is required, so the Parliament could block by withholding that assent).
And that's exactly why the patent examiners' union wrote the letter to the European Parliament that gave rise to this slashdot story: they apparently hope that the European Parliament would use its powers to influence the content of the legislation.
That is bullshit. How they are stopping it from being democratic to begin with? Hell, look at ukip, the majority of the time they are standing their opposing any decisions that was made undemocratically and if they are unable to stop those decisions, how are they stop democracy from occurring?
Here are a bunch of youtube videos I found without even trying, proving my point:
http://www.youtube.com/watch?v=y_QPkRArPUk
http://www.youtube.com/watch?v=OvKqnVBxqe4
http://www.youtube.com/watch?v=OpYC_D7VupI
http://www.youtube.com/watch?v=xvWbINw3RZA
http://www.youtube.com/watch?v=Bxtcnmy8ctk
http://www.youtube.com/watch?v=13xb2QP3moM
http://www.youtube.com/watch?v=uFRFA4wlVj
http://www.youtube.com/watch?v=uFRFA4wlVj8
I look forward to your reply.
Change is certain; progress is not obligatory.
No, no, it isn't a general validation of software patents. The German legal system follows Civil Law, not Common Law. That is, the results of previous court cases are not binding on later cases. A subsequent court is bound only to follow statutory law, and has no obligation to take into consideration previous case law. This is quite different to the Common Law of the British tradition, where case law does indeed set a binding precent that affects later rulings.
What you don't say here is that rulings by the court that ruled on the FAT patent (the Bundesgerichtshof, which is the highest German court in all matters of civil and criminal law, above which there's only a Federal Constitutional Court, which wouldn't heart a patent case) are definitely binding, especially if a part of the ruling is defined as a "Leitsatz" ("guiding ruling"). All lower courts -- which means all courts in the country except for the aforementioned constitutional court -- have to follow those decisions. That's something you didn't mention, and it's important in this case.
Instead of pointing out the rhetoric they have been using in certain cases, you may want to address the issues that I pointed out initially. Explain why the UKIP, Conservatives and other "democrats" are constantly opposing granting more co-desicion rights to the ELECTED European parliament.
I am not going to watch all those videos now, since I am at work, but I may do that later tonight.
"Civis Europaeus sum!"
I pointed out that liberalization, which is what the EU is now mostly known for, was not the original number one priority.
I generally like the idea of a large European market and it's good if the EU opens up markets that its Member States are sometimes hesitant to liberalize/deregulate.
I can only think right now of how UKIP refuses to allow more control given to the European Union due to the fact there is promises that there will be democratic voting, but then the EU turns around and just makes the decisions regardless when people oppose the decisions.
If that isn't what you were referring to, could you provide links to the specific parliament talks you're referencing?
Change is certain; progress is not obligatory.
What you are saying is, the FAT-patent can still be challenged at a Constitutional Court?
I had said that only the Federal Constitutional Court is above the Bundesgerichtshof, the court that ruled on the FAT patent, but I also said that the Constitutional Court doesn't hear patent cases. I had a typo in my post ("heart" instead of "hear") but the message was clear.
Very theoretically, the Constitutional Court could look into patent law if someone's fundamental rights were violated by the law. With the question of whether or not software should be patented, that's extremely hard to imagine, which is why I would say the answer to your question is 99.99% No, if not higher than that. And there certainly isn't a direct appeal mechanism in place.
On my FOSS Patents blog, I have published a report juxtaposing what the EU official said with the FFII's criticism [blogspot.com].
The FFII and the European Union are institutions I admire. You are very opinionated as an activist about patents but only strong political organisations like these may keep a patent office accountable. Patent reform is high on their agenda, blogger activism is not enough. We need to support them (donate to FFII) , support their agenda in any possible way. Without the EU there would still be wars in Europe.
The small guy already lost. The big company whips out a much larger patent portfolio and "cross licenses" for nothing the product. Or the small guy is gulled by a patent troll and can't even afford the court appearance.
I don't get why MP3 patents are enforceable. If it was special hardware they are running on, I would understand it, but - for example -the Sandisk Sansa players, which were confiscated at Cebit some years ago and one of which I incidentally own, are generic hardware, simple MP3 decoding on the ARM CPUs of the player, no DSP or custom chip support. If that is enforceable, everything is. Or where is the difference to other software?
No, it's taking what Jefferson said. Jefferson said that he had serious doubts about the utility of patents. This is not naive or misleading, it's reporting what the man said!
You realize that “further integration” is the opposite of “democracy” because it is the removal of choices, do you?
Logically it leads towards only one government, and you being unable to flee to anywhere else, if you happen to disagree.
But it’s all awwright, because it’s in the name of the oh-so-holy “democracy”, which, when you remove the pink glasses of delusion, is not any better than a communistic “transitional government” (those that somehow never ended).
They both still have a fatal flaw: There are humans leading others, that are expected to be completely unselfish.
Let’s face it: That ain’t gonna happen. Ever. People do care for themselves. People want themselves to succeed in evolution. Or else they would by the definition of evolution, not exist.
As long as the proxy between our wishes, and what becomes the law of the land, is other humans, it won’t ever work. Period.
Democracy only has one difference: It is the stealthiest of them all. And together with modern mass-media brainwashing it is in fact nearly perfectly concealable, since you can make people want to act against their own best interests.
In short: Unless that “government” is replaced by a “very small shell script” open-source client, that forms a distributed p2p trust network with an open API, a “one government” idea is the stuff of apocalyptic horror stories.
Any sufficiently advanced intelligence is indistinguishable from stupidity.
Elektroschock wrote:
The FFII generally referred to them, as I wrote on my blog, as "the patent movement", meaning national government officials whose careers are tightly linked to the patent system.
Hurga wrote:
Your question is right on. MP3 patents are pure software patents: compression algorithms and some of the patents don't even define a particular compression algorithm but just methods for how to organize compression (such as an iterative approach: compressing with increasing lossiness factors until the result fits into an allotted amount of memory.
In a software-patent-free world, MP3 would not be patentable either. However, substantive patent law is a complex and tricky field and differences can be subtle, resulting in one patent being upheld by a court and a seemingly similar one being thrown out. Sometimes the difference is just in how the patent application is worded. Some attorneys do a better job of presenting their patents as "technical inventions" than others.
As I see it, a "Leitsatz"-judgement indeed technically has to be followed by lower courts, but they still can actually rule to the contrary, opening up the way to higher instances until the issue reaches the BGH again. Certain judges on certain OLGs (state courts, roughly) seem to have it made a hobby ruling against the established guidelines from the BPatG (patent court) and sometimes BGH lately in patent matters. If you follow the guidelines issued by the BGH on software patents, their opinion seems to change quite rapidly from time to time.
Ubi solitudinem faciunt, pacem appellant.
"You realize that “further integration” is the opposite of “democracy” because it is the removal of choices, do you?"
Umm... no, that does not compute. Further integration means more power to the EP, and less to the Council. Though, the Council certainly have been elected in some sense by being elected to government in the member-states, they are not really accountable to anyone as a body (you cannot fire the council since that would mean firing all state-governments). With democracy, any normal person today mean representative democracy, and usually would be explicit if they want direct democracy as your shell-script solution.
Since the EP is directly accountable to its voters and the Council is not, moving power to the EP and thus further strengthening the federal side of the Union on the cost of the states, is more democratic since the EP answers to the voters, i.e. they are actually your representatives.
"Civis Europaeus sum!"
Please tell me when this has happened, and I can reply. And no, Lisbon does not count since it was the Irish that changed their mind after amendments (as is usually the case in parliaments, a party may change its mind after some amendments). In the real world, no is not necessarily a no if there is a possibility for fixing the reason for the no, this is not undemocratic, unless you belong to the part that refuse to compromise in which case most likely anything that goes against your will is undemocratic.
"Civis Europaeus sum!"
"European Parliament would be 'circumvented' as a legislator."
They are no legislators today, and propably never will be, how can they be circumvented? The European parliament is just a front without real power, they have never even been claimed to have any legislative power, not even by EUs supporters. Nobody can be sure who has the real power in any given situation. The counsil of ministers seem to have some power, sometimes, but their power of vote are not democraticaly distributed. Most power seem to be in the hands of beaurocrats, those beaurocrats are however appointed by politicians, not necesserely politians elected by the people, but by politicians appointed as representatives by other politicians elected to Europes national assemblies and gouvernments (and again, the power they get is not proportional to the public support they have within the whole of Europe). Another group of people, with at least some influence, are the coordinators within the intrernational party groups within the parliament, they are at least democratically elected (but their power is, as usual, not proportional to their public support).
EU is not a democratic organisation, and propably never will be, that was not part of the original goal. Sure, some politicians claim it will be (or even that it already is, but that is obviously not true). Why would you belive anything professional politicians or beaurocrats say, they have their whole adult lifes been paid for being politicians and beaurocrats, they don't want Democracy, all they want is a pay rise and a comfy life.
Umm... no, that does not compute.
May I recommend a upgrade in processing power then? ;)
Further integration means more power to the EP, and less to the Council.
I have no idea what you thought we were talking about. But we were talking about further integration of states into one country.
Which results in less governments to choose from. And that, like any monopoly, results in loss of freedom and more oppression by the monopoly.
While your idea of “democracy” is, that people can choose their government.
Which in happy wonder dreamland of rainbow and love world would also be true for world governments. But in actual reality isn’t even the case for countries as small an Luxemburg, or single cities. Because governing representative humans, as I said, are by the definition of being a life-form, primarily selfish. (Billions of years of evolution trained for ultimately only selfish life-forms to survive.)
Unfortunately, most people rather want to close their eyes in denial and continue living in fantasy world where being selfless is the big ideal (that is promoted by those who profit from others being selfless, who then because of that selfishness, are the winners of evolution).
Hence representative government is a hilarious absurdity. But hey, if you really want it... if you really want to be used and abused, who am I to judge? I’m just going to be one of those that you love so much to be abused by, and use it to win my round of natural selection. ^^
Since the EP is directly accountable to its voters
Yeah right... Suuuure... Go to the EP, and tell them that you do not accept their behavior and you will hold them accountable / punish them, and see what you will get. Go ahead. Tell me how much they are accountable. Tell me how anything they do in in any way influencable by you...
As I said: Happy wonder dreamland of rainbow and love world... with ponies, faeries and love bears hugging each other all day long...
Any sufficiently advanced intelligence is indistinguishable from stupidity.
Looking at this, every some time we get a new threat against democracy. The corporations whom have bought or pressured politicians into giving up our rights so that politicians can get their champagne feasts and more political power. The most dangerous enemies of our democracies are not outside of our countries, its not those whom the politicians are pointing their fingers at, it is the greedy corporations and their enablers the politicians.
A central government with no de facto legislative authority? Sounds good to me -- where do I sign up?
From California with love,
N.a.J.
"Hence representative government is a hilarious absurdity."
Nothing is of-course perfect, the best decisions are taken by the individual, but since that is not practically possible for everything (e.g. where should we build a school et.c.), a public is necessary.
Direct democracy in term only work for small groups, where travelling distance is not a problem, though I suppose that now, we could in principle distribute the groups over a larger through technology, the groups must still be small.
Since, we need a public, I would be happy if the only unit was a municipality, however, this is not practically possible, since a municipality cannot build advanced infrastructure (small municipalities cannot build hospitals either). So, a province or state is necessary to manage these, here as in the municipality, direct democracy is impossible and you need representative governance, or it would all be chaos. If it would be possible, I would be happy with this being the limit and there was no higher level. But...
The state cannot by itself tackle the current problems such as climate change, the global economy et.c. The global economy in special as there are other big players there, like China, Russia, India and the US. If the Union would not exist and the European states would keep on bickering about petty things, then the entire continent would be divided into spheres of influence between these players (Sounds familiar? It already happened.) But since, we Europeans would be better off with keeping government local, a strong Union that can stand up against the rest is an absolute necessity, and the more accountable it is the better.
In fact, a federal Union is the only way to guarantee our independence in a reasonably democratic and accountable way (if it is not federal, i.e. confederal then it is not very democratic or accountable). If you have any other suggestions for how to do this in any other way, then please reply to this with your concrete suggestions.
"Civis Europaeus sum!"
"You realize that “further integration” is the opposite of “democracy” because it is the removal of choices, do you?"
Democracy is about majority decisions, not about choices. But, if the plurality and diversity of your choices is something you are concerned about, would further integration not be the better thing here?
I mean, you get one more more choice of decision level: individual, family, community, municipality, province, state and union.
You will loose some options for the state, but in terms of choice for the individual, they increase with respect to the representation. Also, if you are talking about choice, I can now choose to move wherever in the Union I want to and take up a job there. An ability that a lot of people are using, that must surly increase your choices about where to live and settle down.
"Civis Europaeus sum!"