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12.15.15

Ahead of Tomorrow’s Administrative Council Meeting EPO Staff Representatives Warn Heads of Delegations About Union Busting and Other Abuses

Posted in Europe, Patents at 5:13 pm by Dr. Roy Schestowitz

Union busters extraordinaire

Control Risks

Summary: Many staff representatives from the EPO, including a few who are suspended, complain to the delegates about union-busting actions from Battistelli and his ilk, which now includes outside help from Control Risks

IT IS beginning to seem abundantly clear to more and more people (or groups) that Benoît Battistelli’s EPO is dysfunctional. It continues to ‘function’ only because stressed examiners use their stamps sparingly, under direction from assertive and abusive bosses who try to meet misguided targets and approve applications in bulk for large applicants. In simpler terms, examiners are urged to play ball for international corporations rather than do their job properly and research things adequately/exhaustively. This isn’t quite a patent office or an examination centre; it’s becoming more like a rubber-stamping operation and it will hurt badly in the long term, e.g. after EPO patents get invalided with European courts' intervention.

” It continues to ‘function’ only because stressed examiners use their stamps sparingly, under direction from assertive and abusive bosses who try to meet misguided targets and approve applications in bulk for large applicants.”There are other issues inside the EPO (too many to list again, but see this short primer) and everyone seems eager to inform the delegations about these. Sent yesterday was the following polite (non-combative) message signed by a lot of EPO staff representatives (not a SUEPO thing). It deals with one specific attempt to change the rules so as to basically crush the EPO’s staff even further:

European Patent Office | 80298 MUNICH | GERMANY

To the
Heads of Delegations
of the Administrative Council
of the European Patent Organisation

centralSTCOM@epo.org
Reference: sc12715cl – 0.3.1./3.1
Date: 14.12.2015

Proposals for changes in the Service Regulations

Dear Madam,
Dear Sir,

You will attend the upcoming Administrative Council on 16 December 2015.

President Battistelli has tabled with document CA/99/15 a proposal for two further amendments to the Service Regulations.

1. Extension of disciplinary powers

Under the current disciplinary measures, the President can suspend an employee accused of a “sackable offense” for up to 4 months.

With the first amendment, the President now seeks from you the power to suspend employees for an undetermined period of time (with the option to reduce the salary by half). Such power has also retroactive effect, in that it will apply to suspensions already started. These would be unprecedented powers. No international organization has the power to keep an employee accused of misconduct suspended sine die. Approving this proposal will open the door to egregious abuse, and will introduce a provision manifestly contrary to fundamental rights.

2. Power to appoint staff representatives to statutory bodies

The Service Regulations give, and have always given, the Central Staff Committee the prerogative of appointing its chosen nominees to a number of statutory (consultative) bodies.

With the second amendment, the President wants the power to appoint his staff representative of choice to statutory bodies.

The background for his request is the following. At the end of 2014 the CSC refused to appoint any nominees to the Appeals Committee, pending resolution of severe problems that made the Appeals Committee dysfunctional and unworthy of the role of “quasi-judicial” body. In Annex 1 you will find the reasons. Instead of solving the problems, so that bona fide nominees could be appointed, the President pressured some staff representatives to volunteer and appointed them. The CSC has not appointed the current “staff representatives” in Appeals Committee; they do not enjoy any mandate from staff. The President seems to be satisfied with this situation, and wants the power to perpetuate it.

For the avoidance of doubt, the CSC is prepared to appoint nominees to the Appeals Committee as soon as the dysfunction of which it has complained is tackled satisfactorily. The Administrative Council may want to take this up in the context of the social study. The matter is important; the ILOAT is now openly complaining about the governance of EPO which causes major troubles to all parties involved (see parts 10 and 18 of Annex 2).

For more details, the members of the GCC elected by staff have given a unanimous negative opinion on the proposal (Annex 3)

Prohibition of further employment (for opinion) – forming part of CA/98/15

Hidden among the various provisions1 concerning the reform of DG3 is also a proposal that affects all staff: a “cooling-off” period, prohibiting unspecified activities, for unspecified periods of time, affecting unspecified groups of employees. Waivers can be granted “on a case by case” basis, all at the discretion of the President.

The text seems to suggest that this is commonplace in national systems. It is not. Cooling off periods of this kind are legitimate only in certain industries, for instance to prevent an employee leaving the firm from and join a competitor, and thereby potentially “poaching” customers or benefitting the new employer with knowhow from the old one. Even in those cases, the restriction is not only time-limited, but also geographically. Furthermore, the restrictions are typically well-defined and announced in advance (and not retroactive). None of this is clarified in the proposed text, and far too wide a discretion is left to the President. More importantly, it is difficult to see what disadvantage the Office may suffer if a staff members leaves and joins, for instance, a patent attorney firm – he cannot poach “customers” from the EPO, and the knowhow is not a problem since it is published in the Guidelines… The insertion of such a provision seems to suggest that the Office is preparing or expecting a massive exodus of examiners and or members of DG3. However, such a scenario has never been openly brought to the attention of staff. Should that be indeed the case, introducing such a provision will essentially hit examiners and DG3 members who are not yet in a pensionable age and are long enough working for the Office: they have lost their competitiveness to return to the industry on the one hand and should they be prevented from staying in the patent profession will further destroy any professional expertise which they have gained during their working period at the EPO. On the other hand, the Office does not seem to have the same scruples when employing overnight staff coming either from the industry or from the patent attorney profession. Once more, such practices are only demonstrating the hubris of our employer.

Such restrictions do not appear to serve any purpose other than “locking in” staff members and prevent them from earning a living when the leave the EPO. As such, these restrictions are not only unnecessary, but profoundly unjust and vexatious.

Tax adjustment – CA/93/15 Rev 1 + Add 1

Also on the table is a proposal to modify the tax adjustment regime. We take note with disbelief that the Office has not even considered consulting the Pensioners on this matter.

Our opinion on this is already with you, as is the opinion the Pensioners’ Association. The Staff Union has also commissioned a legal study by a reputed law firm with a view to providing the necessary legal support to pensioners from January 2016 should the proposal be adopted. It provides solid elements to invalidate the decision (Annex 4).

From the foregoing, it should be abundantly clear that, with the first three proposals mentioned above, the President is seeking further unfettered power for him to do as he pleases. The fourth seeks to disadvantage pensioners for unclear reasons.

The circumstances that have led you to approve the commissioning of a social study should be sufficient to convince you that the Council would be well advised to resist the proposals.

We urge you to reject the proposals in question.

Yours sincerely,

The Central Staff Committee

We confirm that the above letter was legitimately decided by the Central Staff Committee
_____________
1 CA/98/15, §34-37

What the above says, in very simple terms, is that Battistelli tightens the screws on already screwed people and also makes it easier to bust the unions, or put some more moles inside them (overriding the whole function of staff representation). We saw some of it done before, but there’s an effort to exacerbate/escalate.

Annex 2 was already covered here before. IP Kat wrote about it too. Annex 3 and Annex 4 can be shared some other day, but we deem Annex 1 important for the reasons to be stated at the bottom:

ANNEX 1

Zentraler Personalausschuss
Central Staff Committee
Le Comité central du Personnel

03.12.2014

sc14305cp – 0.2.1/5.2

Dysfunctions within the Internal Appeals Committee

Dear colleagues,

We have previously informed1 you that some serious problems have to be resolved before we can nominate staff representatives to the Internal Appeals Committee (IAC). This was the essential message in a letter we sent to the President on 3 October 2014.

Since then, some of you have asked us for more details so that you can better understand what our concerns are. Whilst normally we would have preferred to remain discrete, following the initiation of severe disciplinary procedures against our nominees, we now feel we have no option but to make full and frank disclosure of the root causes of this conflict.

The dysfunctions within the Internal Appeals Committee:

1. After having been defamed in public, the Staff Representation nominees Aurélien Pétiaud and Michael Lund are now as individual staff members facing the prospect of severe disciplinary proceeding2 on disingenuous grounds. This is nothing but retaliation from the Administration, with the aim of further intimidating staff and their representatives to not carry out their special duties.

2. When the members of the IAC nominated by the Staff Representation indicated that they would not be available for a session of hearings, the sessions were held without them rather than either rescheduling them or calling on their nominated deputies. A later session in September was cancelled, even though the nominees were available and the CSC had indicated that new nominations, required through the introduction of “social democracy”, could not take place before the end of the session.

3. Under this new system, colleagues with considerable experience and legal expertise can no longer assist staff with their appeals unless they are also elected staff representatives. This means staff either have to contest their case alone against a whole team of lawyers defending the Office (clearly contrary to the principle of equality of arms), or staff representatives have to take over the task of assisting them. In this event, the elected staff representatives nominated to the IAC would be
_____________
1 Open letter to the President, “Nominees to the IAC”: http://www.epostaff.org/archive/sc14214cl.pdf
2 Public knowledge


confronted with a conflict of interest: being simultaneously “judge” and, even if not directly the appellant ́s counsel, one of this counsel’s close associates3.

4. In a very underhanded and disingenuous way, VP4 and VP5 have jointly attacked4 the integrity of our representatives in the IAC by alleging both a conflict of interest
and intent to sabotage the IAC. The President further supported these allegations in Communiqué 61.

5. In the (now extremely) rare cases where the IAC finds unanimously in favour of the claimant, the President simply ignores the recommendation and decides against5 the claimant without reason.

6. In at least one case, the Office submitted an additional brief after the IAC had already issued their opinion to the President. Nevertheless, the IAC Chairman decided to include it in the file6.

7. Previously, the IAC sent its recommendation to both the appellant and the President at the same time. This practice was abolished in January 2013 although the IAC at least informed the appellants that the recommendation had been dispatched to the President. With the new Rules of Procedure introduced in 2014, now even the provision of this procedural information has been abolished. Consequently, the appellant does not know when the clock starts counting so that he can calculate when the period to deem an implied final rejection will be completed and he can file a complaint to the ILO-AT. Appellants are left in the dark as to the fate of their appeal7.

8. Certain appeals are subjected to summary proceedings because they are found to be “manifestly irreceivable by … majority vote8”, based solely on the submissions of the
Defendant9, i.e. without even hearing the claimant.

9. In other cases that are not deemed to be manifestly irreceivable, the parties are heard only on the issues of receivability. An opinion is issued (systematically in favour of the Office) on this point alone, without considering the merits10 of the appeal itself.

10. Secretarial support is offered only to the “majority” to formulate their opinion. The minority must write its own divergent opinions, normally within very tight deadlines. If they miss this deadline, the President will receive only the majority opinion signed by the Chair and the other members of the majority. These opinions sometimes include
_____________
3 Public knowledge
4 VP4 and VP5 Communiqué of 30.09.2014:
http:/my.internal.epo.org/portal/private/epo/organisation/dg4/?WCM_GLOBAL_CONTEXT=/epo/intranet/orga
nisation/dg4/vp4/announcements/2014/1412095173469_functioning_of_the_settlement_of_disputes_system
5 Public knowledge
6 See meeting of 11 August 2014 and relevant correspondence, all available from the IAC Chair’s public calendar.
7 Public knowledge
8 New (hard to find) Rules of Procedure
9 See meeting of 7 October 2014 and relevant correspondence, all available from the IAC Chair’s public calendar.
10 Reported to us by appellants


the majority’s perceptions of the minority opinion, thereby abusing our nominees by
name11.

11. In at least one case, the Appellant’s lawyer was surprised to receive only the majority opinion. When the lawyer enquired after the “missing” minority opinion, it transpired that although the minority opinion had been produced in good time, the IAC chair had not forwarded it to the President because it was “not in the appropriate form”. We can only interpret this to mean that it was too critical; there is no formal requirement of “appropriate form”12.

12. Similarly, the IAC annual report is now provided only to the President, although in the past it was always provided to both the President and the CSC. Since logically it should be provided to all parties who make up the IAC, i.e. both the Administration and the CSC who each nominate members, this can only be interpreted as another example of increasing partiality in the functioning of the IAC.

13. PD53 manages all the Office’s legal teams pleading against appellants (D532). The current IAC Chair previously worked for many years under PD43’s direct hierarchical line, but upon her nomination to the IAC, she was officially transferred to DG5 where she reports directly to VP5. Yet, when she also became Head of the IAC Secretariat (Dir. 0.4), it was PD53 who announced the appointment. Moreover, the IAC Chair’s public calendar reveals she has had numerous meetings with PD53 (and PD43), but never once met with the Staff Representation. Interestingly, one of the topics of these discussions were the IAC minority opinions13. Such behaviour suggests there may be serious grounds to believe that PD 5.3 is trying to maintain an undue and unnecessary degree of informal influence on the actions of the IAC Chair.

14. IAC rules of procedure (RoP) have been elaborated by the IAC chair in collaboration with DG514, but without either input or approval of the nominees of the staff representation (or of the Staff Representation itself). Moreover, these RoP are not to be readily found15 either on the intranet or in paper form, even though the IAC already relies on them to conduct their business.

It is beyond credibility that so many problems are just an unlucky coincidence, particularly when many have come about through changes to established practice greatly influenced by the introduction of “social democracy”.

We believe this degradation in staff protection demonstrates an orchestrated campaign by Management to destroy the last bastion of our so-called internal justice. With all these problems yet to be resolved, we hope you understand why it is impossible for the CSC to nominate representatives on the IAC.

_____________
11 This is a complaint we received from our nominees in the IAC.
12 Attorney’s name withheld for confidentiality reasons
13 See meeting of the Chair with PD53 on 16 June 2014
14 See the appointments between the chair of the IAC and PD53/staff of D532 on 29 April and 3 June 2014.
This information is available from the IAC Chair’s public calendar.
15 LSC The Hague publication of 4 November 2014:

http://main07.internal.epo.org/projects/babylon/acerep.nsf/0/BF58D43D60B94127C1257D8500455194/$FILE/Lost%20in%20the%20Net%20Change.pdf


To nominate representatives in the present circumstances would not only be an utter waste of time and precious resources, it would also risk exposing our new representatives to severe retaliation in the event that they would be strong enough to speak out against the same or similar machinations which Aurélien and Michael so valiantly opposed.

In other words: Staff may be better served by us exposing the charade than by trying to flog a dead horse. We ask for your understanding.

With regret and consternation,

The Central Staff Committee

To emphasise the closing words: “We believe this degradation in staff protection demonstrates an orchestrated campaign by Management to destroy the last bastion of our so-called internal justice.” The letter mostly deals with actions that constituted a gross attack on “the Staff Representation nominees Aurélien Pétiaud and Michael Lund” who had “been defamed in public” (like Hardon and the suspended judge). See the pattern here? Even a year ago they rightly concluded with: “To nominate representatives in the present circumstances would not only be an utter waste of time and precious resources, it would also risk exposing our new representatives to severe retaliation in the event that they would be strong enough to speak out against the same or similar machinations which Aurélien and Michael so valiantly opposed.”

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