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. IAM Magazine is Very Blatantly Promoting Patent Trolls and Their Agenda

    IAM Media, which produces a magazine every now and then while posting online every day, maintains its pro-trolls agenda, which is becoming so clear to see that it is definitely worth documenting yet again



  2. A “Perfect Recipe for Fraud” at the European Patent Office (EPO)

    How the world's leading patent office became a world-leading source of abuse, corruption, nepotism, injustice, incompetence, censorship, alleged bribery, pure deception, distortion of media, defamation, and suicides (among many other things)



  3. Techrights Was Right About the Unitary Patent (UPC)

    No Unified Patent Court in the UK and probably nothing like it in the rest of Europe any time soon (if ever)



  4. Patents on Life and Patents on Software Serve to Show That EPO Patent Quality Fell Well Behind the US (PTO)

    Anything goes at the EPO, except dissent; any patent application seems to be grantable, provided one uses simple tricks and persists against overworked examiners who are pressured to increase so-called 'production'



  5. Links 28/3/2017: Linux 4.11-rc4 Kernel Released, Red Hat Surge on Sales

    Links for the day



  6. The Crook Goes to Brussels to Lie About the Unitary Patent (UPC)

    The person who spent years lying about the UPC and severely attacking critics (usually by blatantly lying about them) goes to Brussels for another nose extension



  7. The EPO's HR Roadmap Retrospective

    A look back at the terrible ‘accomplishments’ of the Jesper Kongstad-led Administrative Council, which still issues hogwash and face-saving lies, as one might expect from a protector of Battistelli that lies to national representatives and buries inconvenient topics



  8. Links 26/3/2017: Debian Project Leader Elections, SecureDrop and Alexandre Oliva FSF Winners

    Links for the day



  9. His Master's Voice, Jesper Kongstad, Blocks Discussion of Investigative and Disciplinary Procedures at the EPO

    The Chairman of the Administrative Council of the European Patent Organisation is actively preventing not just the dismissal of Battistelli but also discussion of Battistelli's abuses



  10. Heiko Maas and the State of Germany Viewed as Increasingly Complicit in EPO Scandals and Toxic UPC Agenda

    It is becoming hard if not impossible to interpret silence and inaction from Maas as a form of endorsement for everything the EPO has been doing, with the German delegates displaying more of that apathy which in itself constitutes a form of complicity



  11. With IP Kat Coverage of EPO Scandals Coming to an End (Officially), Techrights and The Register Remain to Cover New Developments

    One final post about the end of Merpel’s EPO coverage, which is unfortunate but understandable given the EPO’s track record attacking the media, including blogs like IP Kat, sites of patent stakeholders, and even so-called media partners



  12. Everyone, Including Patent Law Firms, Will Suffer From the Demise of the EPO

    Concerns about quality of patents granted by the EPO (EPs) are publicly raised by industry/EPO insiders, albeit in an anonymous fashion



  13. Yes, Battistelli's Ban on EPO Strikes (or Severe Limitation Thereof) is a Violation of Human Rights

    Battistelli has curtailed even the right to strike, yet anonymous cowards attempt to blame the staff (as in patent examiners) for not going out of their way to engage in 'unauthorised' strikes (entailing dismissal)



  14. Even the EPO's Administrative Council No Longer Trusts Its Chairman, Battistelli's 'Chinchilla' Jesper Kongstad

    Kongstad's protection of Battistelli, whom he is supposed to oversee, stretches to the point where national representatives (delegates) are being misinformed



  15. Thanks to Merpel, the World Knows EPO Scandals a Lot Better, But It's a Shame That IP Kat Helped UPC

    A look back at Merpel's final post about EPO scandals and the looming threat of the UPC, which UPC opportunists such as Bristows LLP still try hard to make a reality, exploiting bogus (hastily-granted) patents for endless litigation all around Europe



  16. EPO Critics Threatened by Self-Censorship, Comment Censorship, and a Growing Threat to Anonymity

    Putting in perspective the campaign for justice at the EPO, which to a large degree relies on whistleblowers and thus depends a great deal on freedom of the press, freedom of speech, and anonymity



  17. Links 25/3/2017: Maru OS 0.4, C++17 Complete

    Links for the day



  18. Judge and Justice Bashing in the United States, EPC Bashing at the EPO

    Enforcement of the law based on constitutional grounds and based on the European Patent Convention (EPC) in an age of retribution and insults -- sometimes even libel -- against judges



  19. Looking for EPO Nepotism? Forget About Jouve and Look Closely at Europatis Instead.

    Debates about the contract of Jouve with the EPO overlook the elephants in the room, which include companies that are established and run by former EPO chiefs and enjoy a relationship with the EPO



  20. Depressing EPO News: Attacks on Staff, Attacks on Life, Brain Drain, Patents on Life, Patent Trolls Come to Germany, and Spain Being Misled

    A roundup of the latest developments at the EPO combined with feedback from insiders, who are not tolerating their misguided and increasingly abusive management



  21. It Certainly Looks Like Microsoft is Already Siccing Its Patent Trolls, Including Intellectual Ventures, on Companies That Use Linux (Until They Pay 'Protection' Money)

    News about Intellectual Ventures and Finjan Holdings (Microsoft-funded patent trolls) reinforces our allegations -- not mere suspicions anymore -- that Microsoft would 'punish' companies that are not paying subscription fees (hosting) or royalties (patent tax) to Microsoft and are thus in some sense 'indebted' to Microsoft



  22. Links 24/3/2017: Microsoft Aggression, Eudyptula Challenge Status Report

    Links for the day



  23. Bernhard Rapkay, Former MEP and Rapporteur on Unitary Patent, Shoots Down UPC Hopes While UPC Hopefuls Recognise That Spain Isn't Interested Either

    Germany, the UK and Spain remain massive barriers to the UPC -- all this in spite of misleading reports and fake news which attempted to make politicians believe otherwise (for political leverage, by means of dirty lobbying contingent upon misinformation)



  24. Links 23/3/2017: Qt 5.9 Beta, Gluster Storage 3.2

    Links for the day



  25. The Administrative Council of the European Patent Organisation Has Just Buried an Innocent Judge That Battistelli Does Not Like

    An innocent judge (never proven guilty of anything, only publicly defamed with help from Team Battistelli and dubious 'intelligence' gathering) is one of the forgotten casualties of the latest meeting of the Administrative Council (AC), which has become growingly complicit rather than a mere bystander at a 'crime' scene



  26. Nepotism at the European Patent Office and Suspicious Absence of Tenders for Big Projects

    Carte blanche is a French term which now perfectly describes the symptoms encountered in the European Patent Office, more so once led by a lot of French people (Battistelli and his friends)



  27. “Terror” Patent Office Bemoans Terror, Spreads Lies

    Response to some of the latest utterances from the European Patent Office, where patently untruthful claims have rapidly become the norm



  28. China Seems to be Using Patents to Push Foreign Companies Out of China, in the Same Way It Infamously Uses Censorship

    Chinese patent policies are harming competition from abroad, e.g. Japan and the US, and US patent policy is being shaped by its higher courts, albeit not yet effectively combating the element that's destroying productive companies (besieged by patent trolls)



  29. 22,000 Blog Posts

    A special number is reached again, marking another milestone for the site



  30. The EPO is Lying to Its Own Staff About ILO and Endless (Over 2 Years) EPO Mistrials

    The creative writing skills of some spinners who work for Battistelli would have staff believe that all is fine and dandy at the EPO and ILO is dealing effectively with staff complaints about the EPO (even if several years too late)


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