11.04.15

The EPO’s Investigative Unit Exposed: Part II

Posted in Europe, Patents at 5:28 pm by Dr. Roy Schestowitz

Benoît Battistelli created a shady, unaccountable army

Cobra

Summary: How the President of the European Patent Office got his own private mercenaries, who can outrageously enough ignore European laws and human rights, in order to guard his unprecedented tyranny

“In March 2013,” told us a source, “EPO staff representatives submitted their concerns about Circular No. 342 to the Administrative Council in the document CA/33/13.”

Circular No. 342 was the subject of Part I (textual copy was cited/attached) and here is the response to it [PDF], along with context in the PDF (scroll down to the bottom). Our emphasis is added in yellow to better suit quick readers:

CA/33/13
Orig.: en

Munich, 12.03.2013

SUBJECT: Investigations Guidelines of the EPO
SUBMITTED BY: President of the European Patent Office
ADDRESSEES: Administrative Council (for information)


SUMMARY

This document is submitted by the staff representatives via the President of the European Patent Office, in accordance with Article 9(2.2)(b) of the Administrative Council’s rules of
procedure (see CA/D 8/06).

Recommendation for publication:
No, in view of possible ongoing legal disputes.


On 01.01.2013 the Office adopted Guidelines for the investigation of fraud, misconduct and harassment. These Investigative Guidelines give excessive powers to the President of the EPO and to the Investigation Unit. The Investigation Guidelines fail to provide staff with basic protection against self-incrimination, incrimination of family members and violation of private property, including the home. The level of evidence required, “on the balance of probabilities” (i.e. more likely than not) is insufficient in view of the potentially grave consequences, including dismissal.

It has to be clarified if the Investigation Guidelines are in contradiction with international law, namely the European Convention on Human Rights (ECHR) and the Universal Declaration of Human Rights.


TABLE OF CONTENTS

I. INTRODUCTION
II. BACK-GROUND
III. MAIN ISSUES
A. NO LIMITATION TO THE PRESIDENT’S POWERS TO ORDER INVESTIGATION
B. NO PROTECTION AGAINST SELF-INCRIMINATION OR INCRIMINATION OF FAMILY MEMBERS.
C. NO PROTECTION OF PRIVATE PROPERTY
D. INSUFFICIENT LEVEL OF PROOF
E. LACK OF TRANSPARENCY
F. NO LEGAL ASSISTANCE DURING HEARINGS
IV. CONCLUSIONS AND REQUEST
ANNEX 1 CIRCULAR NO.342 (“GUIDELINES FOR INVESTIGATIONS OF THE EPO”)


I. INTRODUCTION

The Central Staff Committee welcomes the initiative of the President of the EPO to establish a Code of Conduct, a Staff Dignity Policy and Investigation Guidelines. Present Circulars 341 (“Formal procedure on staff dignity”) and 342 (“Guidelines for Investigations of the EPO”) fail, however, to provide the right protection needed and furthermore may infringe fundamental human rights. The present document concentrates on Circular 342 (investigation guidelines), but many of the shortcomings also apply to Circular 341.

II. BACK-GROUND

In all the EPO’s Member States a clear separation of power between the legislative and the operative exist. Amongst the typical safe-guards that apply is, for example, the need for a search warrant for the police to be able to enter private property.

In the EPO no such separation of powers exists. The President is in the EPO head of Internal Audit who act as the “internal police”. He is also the ultimate “judge”, deciding whether disciplinary measures will be taken or not. In so deciding he is not obliged to follow the recommendations of the disciplinary boards. The strong powers of the President and the Investigative Unit that reports to him are not in any way balanced by safeguards for staff subject to or involved in investigative processes. The most serious flaws are listed below. More can be found in the opinion of the General Advisory Committee (Annex 1).

III. MAIN ISSUES

A. NO LIMITATION TO THE PRESIDENT’S POWERS TO ORDER INVESTIGATION

Circular 342 foresees two triggers for the investigative process:

a) an allegation of misconduct (Art. 9(2)), or
b) a request by the President (Art. 9(3)).

Such a request by the President does not require a suspicion of misconduct or other justification. According to Arts. 10 and 11, allegations of misconduct are subject to initial review and preliminary evaluation before an investigative process is started. This is not the case for requests by the President. In fact, there is nothing in the Guidelines that would hinder the President of investigating whom he wants and how he wants, with or without informing the subject of the investigation.

B. NO PROTECTION AGAINST SELF-INCRIMINATION OR INCRIMINATION OF FAMILY MEMBERS.

Circular 342 does not foresee a right to remain silent. On the contrary: according to Art. 8(1) “All persons covered by … this Circular shall be obliged to co-operate fully with the investigative unit”. According to Art. 8(3) of the Guidelines as adopted, “failure to co-operate without legal justification” may constitute misconduct and hence expose the person concerned to disciplinary proceedings. Neither the Service Regulations nor the Guidelines provide any legal basis for non-co-operation: the duty to co-operate thus seems absolute.

C. NO PROTECTION OF PRIVATE PROPERTY

The Guidelines explicitly foresee search and seizure of all data and materials owned by the Office or present on its premises. There is no protection against access to private material (e.g. personal mobile phones) or confidential information (e.g. medical file, appeals procedures) other than, in some specific cases, prior
authorisation of the Data Protection Office. Such prior authorisation can be dispensed with if this would risk to “jeopardise the investigation”. The Circular expressly foresees access to evidence located outside the Office premises (Art. 16(9)). It is stipulated that for this the investigate unit “must abide by all the applicable provisions of local law or (sic!) obtain prior written permission from the individual concerned”. In view of the duty to co-operate fully (see above), it would seem that such written permission cannot be refused. Hence it would seem that investigators appointed by the EPO can search and size private property without regard of national law.

D. INSUFFICIENT LEVEL OF PROOF

The results of the fact-finding of the investigative unit form the basis for further decisions, ultimately taken by the President. If the investigative unit finds that fraud, misconduct or harassment has occurred, this could lead to disciplinary proceedings and ultimately dismissal. According to Art. 18(4)(ii), the investigative unit will base its conclusions “on a preponderance of the evidence”, i.e. a merely greater than 50% likelihood that fraud, misconduct or harassment has occurred. This is an unacceptably low level of proof given the potentially serious consequences.

E. LACK OF TRANSPARENCY

According to Article 18(7) “the subject of an investigation shall receive a copy of the report if and when, on the basis of the report, disciplinary proceedings are initiated”, meaning that an investigative report on a person may exist without his or her knowledge of the contents. This would not seem acceptable in any European state in 2013.

F. NO LEGAL ASSISTANCE DURING HEARINGS

The subject of an investigation does not have the right of legal assistance of his own choosing (e.g. from outside the office) during hearings. This is in contradiction to article 6 paragraph 3(c) of the ECHM.

IV. CONCLUSIONS AND REQUEST

The CSC is of the opinion that the Guidelines for Investigations confer excessive powers to the President of the EPO and the Investigative Unit without providing the corresponding guarantees and safeguards for staff as normally provided by national law in the EPO Member States.

The CSC doubts whether the Guidelines as they currently stand are in accordance with Art. 12 of the Universal Declaration of Human Rights:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

The CSC also doubts whether the Guidelines as they currently stand are in accordance with the European Convention on Human Rights (ECHR):

Article 8 Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 6 Right to a fair trial

[...]

3. Everyone charged with a criminal offence has the following minimum rights:

[...]

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

The CSC therefore requests an independent legal evaluation of Circulars 341 and 342 of to answer the following questions:

(a) are Circulars 341 and 342 in compliance with international human rights conventions, and

(b) do Circulars 341 and 342 afford staff of the EPO a level of protection against arbitrary interference with his or her privacy, family, home or correspondence that is equivalent to that provided in the EPO Member States?

The Central Staff Committee

As anyone who has read through the above text can certainly see, this is quite a coup d’état by Benoît Battistelli. It may seem unthinkable that he can get away with it, but he did. Somehow he did.

“The Council seems to have ignored these submissions,” the source told us, “because there is no available record of any response having been made.”

This is also the response received after Transparency International was called to intervene, whereupon it wrote to Jesper Kongstad (definitely not a popular person inside the EPO) and never received a response thereafter (that was before the doors revolved, perhaps even twice).

“In part III we are planning to look deeper into the EPO and step into the chambers of the notorious I.U.”“The bottom line here,” explained our source, “is that due to the apparent inaction of the Administrative Council, the President has succeeded in single-handedly imposing on the EPO a system which places unlimited power into his own hands and there is no effective system of checks and balances to prevent abuse.

“This situation is contrary to the spirit of the European Patent Convention which envisaged a European Patent Organisation based on the classical tripartite “separation of powers” model à la Montesquieu.

“From the minutes of the Diplomatic Conferences which led to the signing of the Convention in its final form in 1973, it its clear that the drafters envisaged a tripartite system consisting of a legislative body (the Administrative Council), an executive body (the Office administration headed by the President) and a judicial or quasi-judicial body (the Boards of Appeal).

“The tripartite model of governance doesn’t appear to be to the liking of the current President whose preference seems to be for a more centralised autocratic system.

“The current dysfunctional developments in EPO governance were already commented upon by a number of external observers back in December 2014. For example, the German patent attorney Thorsten Bausch wrote an article entitled “Que le pouvoir arrête le pouvoir – >From Montesquieu to Battistelli” dealing with the perceived breach of the principle of the separation of powers by the President.

“Further critical observations in a similar vein have been made recently by Siegfried Broß, a retired judge of the German Federal Constitutional Court.

“The most puzzling aspect of the current situation is the role of the Administrative Council. It is unclear why they have permitted such an unfettered concentration of power in the hands of the EPO President contrary to the fundamental principles enshrined in the EPC. Either they understand what is going on and are actively colluding in it or else the President has been very successful in pulling the wool over their eyes. Whatever the truth of the matter may be, it is very difficult to avoid the impression that the Administrative Council is failing to fulfill its institutional role as envisaged by the drafters of the EPC.”

In part III we are planning to look deeper into the EPO and step into the chambers of the notorious I.U. Therein we may find reasonably good explanations for at least some of the many suicides (casualties of war, namely Battistelli’s war on dissent or perceived opponents).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Why You Should Give Falkon (the Web Browser) a Chance on GNU/Linux, BSD, or Windows

    In this crazy new world where advertisers are the real customers and Web users ("audicences") have been reduced to mere products we need a browser that isn't controlled by a company; try Falkon



  2. Kluwer Patent Spin and Distortion of Facts (Regarding UPC and More)

    Kluwer Patent Blog disgraces the firm that puts its name on it; instead of sticking to facts they're distorting the facts and the sole/principal goal is to manipulate/mislead the public and public servants



  3. Links 26/1/2021: 4MLinux 35.1, GParted 1.2, Gnuastro 0.14

    Links for the day



  4. IRC Proceedings: Monday, January 25, 2021

    IRC logs for Monday, January 25, 2021



  5. It's Wrong to Assume Red Hat Competes With Microsoft

    The community ought to stop pretending that one monopoly seeks to replace another despite close partnerships (some would say "collusion") between the two



  6. EPO Staff Representation Complains That EPO Management Exploits Pandemic and 'House Arrests' to Overwork Staff, Lower Quality

    The EPO keeps breaking its promises to workers; not only are key employees seeing their net salary cut (inflation factored in) but pensioners too are being robbed and in the meantime the total time spent on work is increasing



  7. Fake News is Not a 'Wing' Thing

    The two-party corporate-led system (and media) would have us obsess/bicker about accuracy of news based on some binary/dual system of blind loyalty rather than underlying facts and priorities



  8. Links 25/1/2021: Huawei on GNU/Linux, NuTyX 20.12.1, Whisker Menu 2.5.3, Lutris 0.5.8.3, Linux 5.11 RC5

    Links for the day



  9. Fear, Uncertainty, and Doubt (FUD) in ZDNet is the Norm

    ZDNet continues to emit lots of garbage 'journalism', in effect Microsoft PR and what's known as "black PR" for Linux; just like Bleeping Computer, which ZDNet hired this writer from, there's no adherence to facts, just smears and innuendo



  10. Truth Tellers Aren't an Enemy of Free Software

    There's a perpetual attack on people who speak out against actors and corporations in positions of great power, however subtle and indirect those attacks may seem on the surface (they don't wish to be held accountable for defaming activists)



  11. The Linux Foundation, With Over 124 Million Dollars in Annual Revenue, is in Trouble Because of the Pandemic, So It's Trying to Reinvent Itself as Training and Certifications Outfit

    With mountains of cash and a Public Relations (PR) or marketing business model the so-called 'Linux' Foundation became reliant on travel, lodging, booths and speeches on sale; COVID-19 is a great risk to that business model



  12. IRC Proceedings: Sunday, January 24, 2021

    IRC logs for Sunday, January 24, 2021



  13. Our Move Further Away From the World Wide Web, the Browser Monopolies, HTTP, and HTML

    The World Wide Web (WWW) is going down a bad path and a clearly regressive direction; the solution isn't going 'retro' but exploring more sophisticated systems which are robust to censorship (localised or globalised) and downtime (related to censorship) while reducing surveillance by leveraging encryption at the endpoints



  14. Important Issues Not Entertained in the Community, Especially Critics of the Status Quo

    here's corporate infiltration inside communities (for oligarchy hunts volunteer, unpaid labour) and those who speak about that as a threat to our cause and objectives are painted as misguided outcasts who must be ignored



  15. Internet Origins of the Mob

    Reprinted with permission from Daniel Pocock



  16. When Proprietary Software Users Dictate the Freedom-Leaning Communities

    Fedora doesn't care about software freedom and its steward (or parent company) is sometimes imposing proprietary software on staff; they've quit caring



  17. In 2020 Onwards 'Open Source' is Just a Marketing Ploy of Monopolies, Unlike Free Software

    More people are nowadays seeing or witnessing 'Open Source' for what it truly is; the term has become a misleading marketing term of proprietary software firms looking to rebrand as "ethical" (e.g. by sharing some code with other proprietary software firms, over proprietary platforms such as GitHub)



  18. Microsoft: The Year After We Bought GitHub There Was a Significant Decline in Number of New Projects on GitHub

    Microsoft has just admitted that in 2019 GitHub saw a very significant decline in number of new projects (and users, which it is conveniently miscounting by adding 'phantom' ones) on the site. Just what we had heard before they confirmed it (and they foresaw this effect of the takeover, hence the lies about "loving" Linux).



  19. Social Control Media is a Passing Fad, We Should All Go Back to Blogging and Subscribing to RSS Feeds

    The whole "social control media" phenomenon has been oversold or promoted using lies; in reality, as a mountain of evidence serves to show, it's a way to manage society at a macro scale



  20. As Andrei Iancu Removes Himself From the Patent and Trademark Office All Eyes Are on Biden's Next Nomination

    Patent zealots and their front groups already lobby Joe Biden to put one of them in charge of the U.S. Patent and Trademark Office; we'll soon see if Joe Biden "means business" or simply means monopoly/large corporations (and their law firms/departments)



  21. Data Point: GNU/Linux Share in Desktops/Laptops Nearly Tripled in the Past Decade, Peaking This Past Month (All-Time High)

    Contrary to what some publishers try to tell us, GNU/Linux is still growing and mostly at the expense of Windows



  22. IRC Proceedings: Saturday, January 23, 2021

    IRC logs for Saturday, January 23, 2021



  23. Links 24/1/2021: Nouveau X.Org Driver Release and GhostBSD 21.01.20

    Links for the day



  24. InteLeaks – Part XXX: Harbor Research's Pseudo-scientific 'Research' for Intel, Bizarrely Suggesting a Microsoft Partnership for a Domain Largely Controlled or Dominated by Linux

    The full document that Intel paid for and in turn used to justify cracking down on Free software (obliterating Free software-based workflows inside Intel), instead outsourcing all sorts of things to proprietary software traps of Microsoft



  25. Chromium and Chrome Are Not Free Software But an Example of Microsoft-Fashioned Openwashing Tactics

    It's time to reject Google's Web monopoly (shared with other companies but still an oligopoly); removing its Web browser would be a good start



  26. Links 23/1/2021: Chromium Pains and New Debian Maintainers

    Links for the day



  27. InteLeaks – Part XXIX: Harbor Research Did Not Produce a Study But an Elaborate Hoax for Intel, Suggesting Microsoft Partnership and Outsourcing Based on Zero Evidence and No Solid Rationale

    The pseudo-scientific ‘report’ from Harbor Research is more of the same nonsense we’ve grown accustomed to; unethical if not rogue firms are being paid to lie — or to perpetuate falsehoods which someone stands to gain from



  28. Video: The State of Communities Surrounding GNU/Linux Distributions

    A discussion about the state of volunteer efforts going into the development, maintenance (in the 'maintainership' sense) and support/advocacy of GNU/Linux distros



  29. IRC Proceedings: Friday, January 22, 2021

    IRC logs for Friday, January 22, 2021



  30. InteLeaks – Part XXVIII: Intel Served Report From Microsoft Boosters, Who Provide No Actual Evidence and No Science to Back Their Supposed 'Findings'

    Findings and recommendations from Harbor 'Research' aren't based on any scientific methods, just perceived loyalty, branding, and a bunch of unsourced quotes (from unnamed people with ridiculous job titles like a soup of buzzwords)


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts