EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

02.18.16

Open Letter Explains Why Disciplinary Committees at the EPO Have Become a Sham Under Battistelli’s Regime

Posted in Europe, Patents at 3:09 pm by Dr. Roy Schestowitz

Fair trial

Summary: Dysfunctions in the EPO’s disciplinary procedures are explained in a 5-page letter, which emphasises tyrannical tendencies in the Battistelli-led EPO

THE EPO‘s management has been ignoring the recommendations of the disciplinary committees when it fired two representatives and downgraded another. This is widely known by now and even European politicians have spoken against this injustice. Last week the following open letter was circulated and now is a good time to show it publicly to everyone. We highlight some bits of interest (in yellow) for those who want to read through the text quickly.

OPEN LETTER TO ALL STAFF

Dysfunctions in the EPO’s disciplinary procedures

Dear Colleagues,

The independence of the Disciplinary Committee (DC) and its members is an essential prerequisite for a just and fair trial, not only for the individuals facing grave accusations, but also for confidence in the EPO as a whole. It is neither the CSC’s role nor its intention to interfere with this independence, let alone issue instructions to the DC. However it is the CSC’s duty to comment on and if necessary propose actions that favour the smooth running of statutory bodies, all in the best interests of staff. It is in this context and taking into consideration that six disciplinary sanctions have been taken against staff representatives consecutively over a very short period of time, the CSC believes it is urgent to “Pause, Reflect, (Re)connect”, that is to learn from past events.

As highlighted in a letter dated 12 November 2014, the EPO no longer has a properly functioning disciplinary procedure, a claim that was reiterated in an open letter to the AC Chairman, dated 4 March 2015.

I – Nominations to the DC: loyalty vs. independence

A DC is a statutory body comprising two members appointed by the President and two by the CSC, drawn at random from a pool of possible candidates.

The President appoints the chairpersons of the DC. Until 2013 all DC chairs were chosen from the DG3 Boards of Appeal, whose independence from the President is guaranteed by the EPC. He stopped this long-standing tradition in 20141.

Following the introduction of the new career system, the EPO President decided that the CSC may no longer nominate members of DG3 to DC procedures involving staff in job groups 2 and 3. Since it remains a requirement under Article 98(4) ServRegs that DC members shall not be of a lower job group than that of the accused, this does not leave the CSC any other option than to select their nominees from the few willing managers and directors employed in those groups2.
_______
1 CSC members have legally challenged this change. Internal appeals are pending.
2 The President has also repeatedly interfered with CSC nominations: for example, the nominations of the CSC for 2015 and 2016 were disregarded (see the nominations retained by the President versus the CSC 2015 nomination letter).


In stark contrast, the President almost exclusively nominates Directors and Principal Directors as members for all job groups whereas he should in principle nominate non-managers for procedures in job groups 4 to 6 to more faithfully reflect the staff demography. As a result, the members appointed by the President drawn from the list of potential nominees for a particular case will always be managers, except if the defendant is in job group 6.

Besides being an explicit requirement written in the job description of all EPO staff members, loyalty (obedience) is to be expected of today’s management. The present Administration has demonstrated on several occasions that this obligation applies in particular for managers and those taking actions that are perceived to be disloyal should expect to be punished severely.

Further, since senior managers nominated by the President are often employed under some form of renewable contract (where continuation may depend on Presidential approval), staff may doubt that they can act fully independently in performing their function as DC members.

The Office has endorsed a structure that the European Court of Human Rights found objectionable3: the convening officer (President) appoints the court (is their superior officer) and acts also as the confirming officer (President). Such a DC framework no longer meets the requirements that the ECHR consider necessary for a fair procedure4.

II – DC recommendations systematically ignored

After Aurélien Pétiaud, Michael Lund and Els Hardon (1), now it is the turn for Malika Weaver, Ion Brumme and again Els Hardon (2) to be severely sanctioned for activities carried out in their capacity as staff representatives, union officials and/or CSC appointees.

In his Communiqué No.2, the President insists that the DC recommendations were all “unanimous”, “justifying high sanctions, including dismissal”, which in our opinion (mis)leads the uninformed reader to believe that he is merely following the DC recommendations. This is not the reality – in most cases the DC concluded that many of the serious allegations could not be founded in facts.

The harsh reality is that in all six (!) cases, the President has effectively disregarded the unanimous DC recommendation and decided upon sanctions (up to immediate dismissal with reduction of pension) that are far more severe than the recommendations of the DC. Indeed, in cases where the DC rejected as unsupported allegations made against staff representatives, the President
_______
3 see case Findlay vs United Kingdom or a summary why such a model is unfair
4 http://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf


nevertheless seems to have ignored this and based his judgement and decision on such allegations being proven.

The CSC is well aware that the DC is not responsible for the President’s final decision itself. We assume the DC will have attempted to weigh diligently all the available facts and then assess the consequences of their recommendation. In some cases they may even have sought to find prudent compromises to reduce sanctions in case of doubt. Unfortunately, not only has the President chosen to cherry-pick the harshest of the recommendations, he has in fact gone much further than any of them, applying blatantly disproportionate sanctions with dramatic consequences for the individuals themselves.

III – Six Staff Representatives sanctioned in short lapse of time

Because of the quite extraordinary aggressive attitude presently shown by senior management and in fear of further reprisals, the concerned individuals do not wish to publish more specific, personal information related to their disciplinary procedures. We can, however, provide you with the following insights into their individual predicaments:

  • Not only is Mr Brumme fired from the EPO with immediate effect, but the normal daily life of his newly established family will be disrupted and put under enormous strain in the future.

    If any staff member had been found guilty of very serious charges in a fair trial, such sanctions and their consequences might be understandable. However, this is certainly not the case here: indeed, it appears that it is not the original charges that Mr Brumme has been accused of that are the basis for the sanction. Rather, it is the fact that he denied them publicly, i.e. defended himself against any wrongdoings, that was apparently considered to severely breach “the confidentiality obligation” of the procedure.

    Firstly, it should be remembered that confidentiality is primarily meant to protect the accused staff member – who is presumed innocent until proven guilty – and not to be used to render him guilty for an alleged procedural error. We also note that this charge was only added during the course of the procedure. Last but not least, it should be remembered that as an elected staff representative, Mr Brumme has a mandate from staff to act on their behalf. Hence his informing staff on any issues in relation with his mandate and personal integrity is not only legal, it is a moral and professional obligation for all Staff Representatives towards their constituency.

    It is a sad outcome that today, at 41 years of age, Mr Brumme faces being an outcast. How can ruining a staff member’s life be seen as a “justified and proportionate” sanction, particularly for a staff representative simply defending himself in “public” (actually EPO internally) from an attack on both his functions and his integrity?


  • Similarly, Ms Hardon sees her pension, a deferred remuneration accumulated after many years of active work in the EPO, arbitrarily reduced by 20%. This is a very rare sanction that is normally reserved for extreme cases where individuals have been convicted of the most serious crimes and felonies like corruption or gross misconduct. How can such a sanction be “justified and proportionate” in her case?

IV – No particular protection for staff and union representatives in the EPO

In most European countries, and certainly in France and Germany, staff and union representatives enjoy particular protection and external instances5 other than their employer are in place to decide what sanctions are appropriate to be applied against them. The employer cannot simply publicly declare that the cases “relate to personal failures of the employees”, impose heavy sanctions and de facto disregard “the fact that the employees involved are staff representatives who should enjoy a higher level of protection and freedom of expression, having in mind their particular duties.”6

V – The work of the DC has changed in the new world of “political trials”

The EPO “culture” has changed to such an extent that the disciplinary procedures seems to have mutated into a fully conscious and demonstrative policy of the President to apply the most ruthless and excessive sanctions, presumably with the intention of having an oppressive, intimidating effect on all staff. In this context, such disciplinary procedures can be seen as “political trials”.

In this sense, the CSC makes the following observations:

  • The President seems to be instrumentalising the DC: the recommendations are represented in a biased manner to give the impression that there is unanimous support for the sanctions taken. At the same time, the statutory confidentiality clause is abused to prevent any third party from knowing the findings of the DC and thereby removing transparency from the procedure.
  • Arbitrariness and abuse of power: even though the DC may strive to write a fair, balanced and coherent recommendation reflecting the established facts and taking into consideration any doubts or uncertainties, only parts of a recommendation are being cherry-picked or misrepresented, presumably to arrive at a desired outcome. However, in the absence of any internal review and without any effective recourse to fair and timely legal remedies, the President can take any decision he likes with virtually total impunity.

_______
5 Inspection du Travail in France and Betriebsrat / Arbeitsgericht in Germany
6 «Les salariés investis de fonctions représentatives par voie de désignation ou d’élection bénéficient, en cette qualité, d’un statut protecteur.», Article 48 in the «rapport Badinter» on “THE ESSENTIAL PRINCIPLES OF LABOR LAW”, January 2016


  • The DC is rapidly becoming an integral part of political “show trials”, especially in cases against staff / union representatives: in all (6 out of 6!) cases, the accusations appear to be politically motivated, as were the expected outcome of the procedure. The DC exhibits traits of a reincarnation of the 17th Century Star Chamber7.

The above dysfunctions are equally valid for the Internal Appeal Committee8 where no members are at present appointed by the CSC. Both bodies are equally hazardous for not only their nominated members, but also individual staff members involved and Staff at large.

VI – Lack of judicial review in a reasonable time frame

In view of the flaws in the disciplinary procedures, a genuine independent judicial review is all the more essential. However, the ILO Administrative Tribunal (ILOAT) chokes under a workload mainly caused by the EPO and it does not foresee any accelerated procedure for considering cases with sanctions as heavy as dismissal, let alone issuing any form of injunction. Instead, the cases have to wait their turn, which currently will result in delays of several years before judgement. Should the ILOAT persist in refusing to fast track such cases, then the national courts in the member states should declare themselves exceptionally competent, lift the immunity of the Office and review themselves the decisions of the President.

The Central Staff Committee
_______
7 https://en.wikipedia.org/wiki/Star_Chamber
8 Please note the Board of Auditors’ review of the Internal Appeals procedure in CA/20/15 & CA/21/15: according to these studies, the President does not follow recommendations of his own Appeals Committee and (almost) systematically rules against staff. The ILO-AT is ill-equipped to act as a trial court (Judgment No. 3291). “There is no social peace without access to Justice”. (for more details please refer to the CSC report on the EPO justice)

Things are heating up right now and we urge anyone who has further details to contact us securely. The more the public knows, the bigger the trouble EPO tyranny will face.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

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. The United States Has Gotten Over Software Patents

    A roundup of new articles about software patents in the United States, 2 years into the post-Alice era (the US Supreme Court deeming patents on software too abstract to have merit)



  2. More Lies From President Benoît Battistelli and the EPO Crisis Which Continues to Deepen

    The European Patent Office (EPO), collectively speaking, is still wrestling with a Battistelli infiltration (a circle of high-level managers) which habitually lies and viciously attacks those who dare counter these lies



  3. Links 27/8/2016: Torvalds and GPL, “DOD Must Embrace Open-Source Software”

    Links for the day



  4. Links 26/8/2016: Maru OS Resurfaces, Android More Reliable Than 'i' Things, PC-BSD Becomes TrueOS

    Links for the day



  5. Good Job, David Kappos, Says the 'Boss' (IBM)

    Responses to the latest call against Alice (eliminator of many software patents), courtesy of the man from IBM (still paid by IBM) who was responsible for the policy that blindly approved a lot of software patents in the US



  6. Being for Patent Quality or Against Patenting Excess Does Not Make You Anti-Patents

    Like IAM, which tries to portray sceptics and critics of software patents as "anti-patents", IP Watchdog (or Watchtroll as we call it) is 'trolling' the Electronic Frontier Foundation, simply because it expressed an opinion that patent maximalists cannot tolerate



  7. Erosion of Patent Quality Enables Patent Extortion With Large Portfolios of Low Validity Rate

    Revisiting the EPO's vision of poor patent examination and the effect of discriminatory granting practices, favouring patent bullies such as Microsoft (which actively attacks Linux using low-quality and usually pure software patents)



  8. The EPO's Francesco Zaccà Presenting in Turin Alongside Patent Trolls (Like the Patent Mafia Sisvel) and Lobbyists/Front Groups for Software Patents, UPC

    Benjamin Henrion (FFII) on seeing the EPO alongside patent trolls and other nefarious actors, doing what they do best, which is undermining public interests and harming patent quality



  9. The EPO, USPTO, and Patent Microcosm Peddle Myths About Patents in Public Universities and Research

    Tackling some of the commonly-spread myths about patents as "saving lives" and "promoting research" (in practice leading to the death of poor people and promoting trolls)



  10. Large Corporations' Lobbyist David Kappos Disgraces Former Employer USPTO by Meddling in Their Affairs on Software Patents, Downplaying the Supreme Court

    The latest lobbying from David Kappos, who blatantly exploits his connections in patent circles to promote software patents and work towards their resurgence after Alice v CLS Bank



  11. Journal of Intellectual Property Law and Practice Calls the European Patent Office “Rotten”, Other Sources Scrutinise Recent Moves

    The patent office which was once known for being the best bar none is rotting under the Frenchman Benoît Battistelli, who made himself and his friends the main clients of the Office



  12. PTAB Emerges as Hero of USPTO Because Quality of Patents Improves, Software Patents Are Effectively Dead (or Dying Once Reassessed)

    With help from the Patent Trial and Appeal Board (PTAB) -- not just patent courts -- software patents drop like flies by the thousands



  13. Creative Technology, Now Operating in 'Patent Troll' Mode, Shot Down by the ITC; Jawbone Too Shot Down

    Some good news from the U.S. International Trade Commission (ITC), which may have put an end to Creative's new war on Android (using old patents)



  14. Corporate Media in India Misrepresents Startups to Push for Software Patents

    A parade of misinformation as seen in Indian (but English-speaking) press this week as questions about patentability of software resurface



  15. Links 25/8/2016: Linux Turns 25, NetworkManager Turns 1.4

    Links for the day



  16. Links 24/8/2016: More From LinuxCon, Uganda Wants FOSS

    Links for the day



  17. Links 23/8/2016: GNOME 3.22 Beta, Android 7.0 Nougat

    Links for the day



  18. The Linux Foundation Gives Microsoft (Paid-for) Keynote Position While Microsoft Extorts (With Patents) Lenovo and Motorola Over Linux Use

    This morning's reminder that Nadella is just another Ballmer (with a different face); Motorola and Lenovo surrender to Microsoft's patent demands and will soon put Microsoft spyware/malware on their Linux-powered products to avert costly legal battles



  19. Not Just President Battistelli: EPO Vice-Presidents Are Still Intentionally Misrepresenting EPO Staff

    Evidence serving to show that EPO Vice-Presidents are still intentionally misrepresenting EPO staff representatives and misleading everyone in order to defend Battistelli



  20. Battistelli the Liar Causes a Climate of Confrontation in French Politics, Lies About Patent Quality (Among Many Other Things)

    Battistelli's lies are coming under increased scrutiny inside and outside the European Patent Office (EPO), where patent quality has been abandoned in order to artificially elevate figures



  21. The Collapse of Software Patents and Patent Law Firms Trying to “Overcome” Alice

    The United States continues its gradual crackdown on software patents (which are viewed as abstract and thus unpatentable), whereas in Europe things are murkier than ever



  22. Apple's Patent Wars Against Android/Linux Make Patent Trolls Stronger

    Apple's insistence that designs should be patentable could prove to be collectively expensive, as patent trolls would then use a possible SCOTUS nod to launch litigation campaigns



  23. Links 22/8/2016: Linux 4.8 RC3, Linux Mint 18 “Sarah” KDE Beta

    Links for the day



  24. Links 21/8/2016: Apple and Microsoft Down, Systemd Spreading to Mount

    Links for the day



  25. Links 20/8/2016: Android Domination, FSFE summit 2016

    Links for the day



  26. Patents Roundup: Trolls Dominate Litigation, PTAB Crushes Patents, Patent Box Regime Persists, and OIN Explains Itself

    Another roundup of patent news from around the Web with special focus on software patenting



  27. The Cost/Toll of the 'New' EPO and Where All That Money Goes or Comes From

    The European Patent Office has become a servant of the rich and powerful (including large foreign corporations) and even its own employees now pay the price associated with misguided new policies (or 'reforms' as Battistelli habitually refers to these)



  28. Links 19/8/2016: Linux Mint With KDE, Linux Foundation's PNDA

    Links for the day



  29. The End of an Era at the USPTO as Battistelli-Like (EPO) Granting Policies Are Over

    The United States is seeing the potency of patents -- especially software patents (which make up much of the country's troll cases) -- challenged by courts and by the Patent Trial and Appeal Board (PTAB)



  30. Battistelli's European Patent Office Goes to the United States to Speak About the UPC and Software Patents

    The European Patent Office is showing its utter contempt -- not just disregard -- for the very fundamental rules that put it in its place and brought it into existence


CoPilotCo

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

CoPilotCo

Recent Posts