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01.16.16

The Witch-hunt Against Elizabeth Hardon Leads Back to Battistelli

Posted in Europe, Patents at 8:17 am by Dr. Roy Schestowitz

What’s the point appealing inside an autocratic mock trialling system?

Battistelli against Elizabeth Hardon

Summary: A look at who’s behind the dismissal letter sent to Elizabeth Hardon, who repeatedly warned that Battistelli had a vendetta against her

THE CALM which we spoke about some days ago ended with a storm, which puts the EPO under incredible stress right now.

As George Brock-Nannestad put it today, “is a person who is proven to be in blatant disrespect of fundamental human rights still worthy of a public office, such as a “conseiller municipal”?”

“The next batches of disciplinary cases are under preparation in BB’s [Battistelli] shadow,” wrote another person, “almost ready to see the daylight! Instigate, orchestrate and keep on provoking … is the flavour of the day in the EPO!”

There are other cases against staff, but they’re not publicly known yet. SUEPO is just the first in the firing line, as we noted several weeks ago.

“Today was the darkest day in the history of the EPO,” this person wrote today. “The firing of two of the staff representatives and the downgrading of the third are punishments which are in now way commensurate with the alleged misdeeds of the accused. It´s very much like shooting somebody for not having a valid bus ticket.

“To take away somebody´s livelihood because he made public a letter addressed to himself is a sign of a particularly mean and vengeful character.

“The legal proceedings the three staff representatives have been subjected to are cases of institutional harassment that should lead to a strong intervention by the delegates of the AC, an overturning of the decisions and finally, the dismissal of the main culprit, B. Batistelli, who after yesterday´s decision has lost the right to be called a manager (ruthless dictator is now the proper definition). The same applies to Elodie Bergot, his stooge.

“If there is somebody who brought the EPO into disrepute it is Batistelli and his minions. At this stage they cannot even claim a golden handshake. Everyone involded in this travesty of justice should be removed as soon as possible.

“AC, do your job!”

As we have said time after time, they’ll do their job better if people actually contact them.

Today we present the dismissal letter, signed by nobody other than Battistelli himself. Elizabeth Hardon is probably vindicated (proven right) after she said he had been on a personal vendetta against her. It’s overzealous institutional harassment — the very same thing which the I.U. was in principle supposed to combat (it now does the very opposite, in the service and the interests of power [1, 2, 3, 4, 5, 6, 7]).

We decided to share the letter in HTML/text only, with a rebuttal to follow some time in the future. Elizabeth Hardon’s letter of dismissal is full of hypocrisy and zeal.

D812015 – Final decision under Article 102 (3) ServRegs

Dear Ms Hardon,

I. Introduction

I refer to the disciplinary proceedings initiated against you under Article 93 et seq. ServRegs. In summary, the charges made against you are that you breached:
(i) your obligation not to disclose to unauthorised third persons confidential and personal material internal to the EPO;
(ii) your obligation to abstain from any inappropriate, threatening and harassing statements or conduct towards your colleagues;
(iii) your obligation to co-operate with your employer in the context of an investigative and administrative process, and in particular your obligation to preserve the confidentiality which forms a necessary part of this process.

The Disciplinary Committee held a hearing with your participation on 10.12.2015 and delivered its opinion on 17.12.2015.

Your further comments were submitted to the Office through your legal counsel and received on 05.01.2016.

On the same day you also informed the Office that you did not wish to avail yourself of an oral hearing with Vice-President DG5 and Principal Director 4.3 scheduled for 08.12.2016 designed to give you the opportunity to develop your defence and/or make further representations or submissions under Article 102 (3) ServRegs.


The Disciplinary Committee has found unanimously:

(i) There was substantial evidence on file that you behaved in ways which were incompatible with your duties as a staff member and an elected staff representative by reason of your participation in systematic, destructive attacks upon your employer’s reputation and position in the public’s eye. Of six individual allegations considered separately, four were found valid (paras 46-53).

(ii) There was substantial evidence on file that you behaved in ways which were incompatible with your duties as a staff member and as an elected representative. What you had said and done at meetings of elected staff representatives was highly threatening and was intended to be so (para 69). You further aggravated the original act by subsequent actions during a second such meeting. The DC also noted that the behaviour at the hearing of the Disciplinary Committee was consistent with this assessment (paragraphs 67-69).

(iii) There had been a clear, systematic and deliberate breach of your duties under Circular 342 (Investigation Guidelines) and the rules of confidentiality brought to your attention specifically in the current disciplinary procedure.

The Office notes, therefore, that the majority of the allegations raised against you were found proven.

The Committee concluded, again unanimously, that the breaches evidenced are of such seriousness that dismissal from service according to Article 93 (2) (f) ServRegs can be the only appropriate and proportionate disciplinary measure.

All aspects of the case and all documents available on the file have been carefully and comprehensively considered, including your aforementioned last comments and your submission dated 15.12.2015. The following conclusions have been reached.

II. Procedural considerations

As regards the procedural aspects of the case and your specific formal requests filed during the disciplinary proceedings, the Disciplinary Committee has carefully explained its position. For the lengthy reasons it has provided, its unanimous position is that the procedure bears no formal flaws whatsoever (cf. §§ 11-38 of the opinion).

In this regard, the Office endorses the Committee’s conclusions and wishes to emphasise especially the following:

(i) The participation of Mr McGinley in the Disciplinary Committee does not convey any reasonable impression of bias nor of a conflict of interest. As a long serving member of the EPO management, it is inevitable that Mr McGinley, like


other senior managers, has participated in several meetings with members of the staff representation. In this capacity, he has been called upon to take positions on various matters concerning the Office and its staff. However, this clearly cannot render him unfit, without more, to sit on a Disciplinary Committee convened for the personal case of a staff representative.

(ii) Ms E. Bergot, Principal Director HR, participated during the proceedings and was present during the hearing of the Disciplinary Committee as a representative of the Office. By her very function as Head of Personnel in the EPO, acting on the basis of a written, direct delegation from the President to her, she is fully authorised to represent the Office in the course of disciplinary proceedings. The final decision on the present disciplinary case is taken by the appointing authority. No conflict of interest has been established in this regard such as to support, let alone necessitate, the exclusion of Ms Bergot.

(iii) You have been invited on numerous occasions by the Disciplinary Committee to access your copy of the witness transcripts pertaining to investigation report C-71. A copy of the report was made available to you for your use and/or your representative’s use at the EPO’s offices. Neither you nor your legal counsel has, however, made use of these facilities to inspect these documents in order to prepare your defence. The decision to allow you access to your own copy of the report, but to permit you to do so solely in the premises of the Office was fully justified by the Office’s interest in the protection of the integrity of the procedure and of the witnesses. The Office has respected at all times your statutory right to access the file and to be heard. No formal flaw has been established under these circumstances.

(iv) As regards the defendant’s request concerning the DPO authorisation, the Office’s explained both the technical and the legal aspects. It has explained the exact circumstances under which the investigation took place. For the avoidance of any doubt, the Office did not intercept your correspondence to Mr XX, nor access your private email account. Rather, it collected evidence in the context of an investigation against unknown persons within the premises of the Office and more specifically at one of the Office’s public PC kiosks. Screen shots of email correspondence and activities of Mr XX were obtained in that context. These included screen shots of two-way correspondence between Mr XX and you. It was in that way that your involvement came to light. It was demonstrated to the Committee that the Office had not relied upon intercepting your private email at all, and you were mistaken to think so. These reasons and details were considered carefully by the Disciplinary Committee who fully understood and accepted them. They do not require further elaboration.

III. Legal analysis

The Disciplinary Committee has found, unanimously, that the three charges alleged have been proven. In this regard, the Office endorses the Committee’s conclusions and wishes to emphasise the following:


(i) As regards the first charge, the Disciplinary Committee concluded that there is “substantial evidence in the file that you behaved in ways which are incompatible with [your] duties as a staff member and as an elected staff representative”. Although the Committee dismissed sub-charges at § 49-50, the rest of the incidents were considered sufficient to prove “a clear working relationship” between you and Mr XX whereby you were even observed “giving him instructions”.

It was in this framework of active co-operation that several means of disseminating confidential and defamatory material were discussed and then in fact widely used. By your course of conduct you put at risk and in fact harmed the Office’s public image, office morale and the harmony of staff-employer relations. Your actions severely damaged the interests of the EPO, its operations and its staff. As the Committee pointed out, these acts not only damaged the EPO’s reputation but detracted also the staff representation, and thereby a key institution of the EPO.

In view of the above and of your long experience as a staff representative, I consider your behaviour particularly disgraceful. You showed disrespect not merely towards your employer but also towards those colleagues who elected you with a mandate to promote the interests of the Office and its staff. In view of the intentional and systematic nature of your breaches of your duty of trust and loyalty, your conduct is considered as impossible to overlook, and irremediable.

(ii) As regards the second charge, the Disciplinary Committee concluded that you “behaved in ways which are incompatible with [your] duties as a staff member and as an elected staff representative”. The evidence brought before the Committee showed beyond any doubt that you did indeed use the term “sniper” during the first meeting of the Munich LSC. You repeated the term, adding a threatening gesture with your hand during a second meeting with some members of the LSC who had sought clarification.

In the specific context of the Office and the then very recent incidents concerning Mr N., the term used by you was “a deliberate, repeated and considered remark” and conveyed a clear and threatening meaning to at least one of the addressees, calculated to impact upon his/her decision to volunteer for the IAC. As the Committee notes (§ 65) correctly, you admitted you were aware of the fact that “snipers” had targeted Mr N. previously, and of the events leading to his political “assassination”. It is noted that you further failed to exercise your duty of care towards your colleagues in your professional and representative capacity by informing the Office.

On the contrary, you deliberately used the paradigm of Mr N.’s mistreatment to influence your colleagues’ decision on a sensitive issue of staff-employer relations. Your subsequent failure to mitigate the effect of your statements, and your behaviour during the investigation and the disciplinary hearing was further inconsistent with your duty of trust and loyalty towards your employer and your obligation to conduct yourself according to the standards expected of an international civil servant. You thereby further aggravated your misconduct.


(iii) As regards the third charge, the Disciplinary Committee found it proven that you breached your duty to co-operate with the Investigative Unit and to protect the confidentiality of the present proceedings. Reference is made in this regard especially to the incidents mentioned in §§ 2, 75-77 and 80 of the Disciplinary Committee’s opinion, It is noted that even your further comments to the Office dated 05.01.2016 were, it appears, copied to unauthorised third parties e.g. national delegations to the Administrative Council.

You confirmed during the oral hearing not merely that you were responsible for the matters alleged under Charge 3, but you sought to justify your actions as correct and defensible. You showed no contrition for the specific incidents when you breached the confidentiality obligations fundamental to a staff disciplinary procedure, but furthermore indicated a deliberate intention to persist with the breach of your employment duties in the future, despite your employer’s instructions and reminders of your obligations. Your lack of any understanding or acceptance of your obligations in this respect is noted. These can only be considered as an additional aggravating fact in these circumstances.

The aforementioned actions (i) – (iii) amount to clear, serious and repeated breaches of Art. 5, 14 (1), 20 ServRegs and of Art 4 of Circulars No. 341 and 342.

As set out in its report under Art. 100 ServRegs, the Office maintains that each one of these charges, individually, without more, fully suffices to justify the most serious of the disciplinary sanctions within the ServRegs, namely, dismissal.

In view of the above, the Disciplinary Committee is unanimously of the opinion that the appropriate sanction is dismissal (§ 87 of the opinion).

IV. Further considerations

The Disciplinary Committee states in its opinion (§ 9) that your previous disciplinary sanction (downgrading) cannot be taken into account again, in accordance with the principle of double jeopardy. The Office wishes to point out that it accepts that the previous misconduct cannot serve anew for a second sanction.

Nevertheless, it is considered relevant that the fact that the Office’s trust in you had already suffered a previous severe blow. The very similar pattern of that previous misconduct is also noted. A harmful statement was made, to the detriment of another staff member, and circulated by you without regard for the damage liable to result from this. This is considered an aggravating circumstance which cannot be ignored when assessing the proportionality of the final sanction in the present case.

V. Decision

Your behaviour amounts to serious and gross misconduct, violating the standards of integrity and conduct expected of an international servant and/or


required under Article 5 (1) ServRegs as well as your fundamental obligation of trust and loyalty towards your employer and to carry out your duties and conduct yourself solely with the interests of the Office in mind under Article 14(1) ServRegs.

The EPO is as an international public institution with a significant profile. It is critical to its interests that both the institution and its staff are seen to conduct themselves with the highest standards of professionalism. The repeated and various violations of your obligations described above and the aggravating circumstances outlined, far offset any possible mitigation. The Office considers that the relationship of mutual trust and confidence necessary for the continuance of the employment relationship has irretrievably and permanently broken down. Further, the very serious nature of these offences, their extent and their repeated nature regrettably justify the disciplinary measure of dismissal with an additional 20% reduction of your pension rights under Article 93 (2) (f) ServRegs.

For the avoidance of doubt, this disciplinary measure is considered appropriate even were one to disregard, contrary to section IV above, your previous disciplinary sanction.

Please note that this decision will take effect immediately. Pursuant to Article 53 (2) (3) ServRegs you will however receive a compensation corresponding to the statutory period of notice.

In view of the specific nature of your misconduct, you remain at all times excluded from entering the EPO premises. Authorisation of entry may be granted solely upon justified request. The Office also draws your attention to your obligations under Article 19 and 20 ServRegs which continue to be applicable beyond the termination of your employment relationship.


VI. Legal means of redress

You are informed that you may file a request for review in accordance with Article 109 ServRegs within a period of three months from the date of notification of the decision. Such a request may be filed with the Conflict Resolution Unit either by e-mail or by post.

Yours sincerely,

Benoit Battistelli

Cc: RAin S. Okyay

“Almost unbelievable,” one person wrote. “that one of Ms Hardon’s alleged crimes was to reveal details of ongoing investigations (about her) and to have thus allegedly caused an offence to those involved. In the meantime the EPO higher mgt have gone to the press to reveal personal details about the DG3 member but that has gone without any action although seemingly contrary to any concept of sub judice and impartiality. Clearly it is seen as a war and the end result defines the means.”

“Interesting but disgraceful case,” another person wrote about 3297. “ILOAT seems to ignore all standards of principle law here! Very odd and imminent for future cases. Moreover keep in mind that the defendant in that case was acquitted by 2 Dutch criminal courts! Proves that the staff is unprotected in such cases and moreover proves also that ILOAT is obsolete.”

“Nowadays there is no internal appeal against disciplinary decisions, so the dismissals (and the downgrading) are appealable directly to the ILOAT,” wrote another anonymous commenter. “One could hope for accelerated treatment of dismissal cases by the ILOAT. That also seems to be its practice, at least until recently. Many older dismissal cases were decided within 1.5 years with most of that time being spent on two rounds of submissions. But the more recent case of Judgment No. 3297, for example, took about 3.5 years from the filing of the complaint.”

Appealing in the Battistelli-controlled system is probably a waste of money and time. Contact the delegations and demand action. Do it now before Battistelli makes this system so messed up that merely contacting one’s national representatives becomes a ‘crime’.

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