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. Links 19/5/2019: KDE Applications 19.04.1 in FlatHub and GNU/Linux Adoption

    Links for the day



  2. The War on Patent Quality

    A look at the EPO's reluctance to admit errors and resistance to the EPC, which is its very founding document



  3. Watchtroll, Composed by Patent Trolls, Calls the American Patent System “Corrupt”

    Another very fine piece from Watchtroll comes from very fine patent trolls who cheer for Donald Trump as if he's the one who tackles corruption rather than spreading it



  4. Unified Patent Court Won't Happen Just Because the Litigation Microcosm Wants It

    Unified Patent Court (UPC) hopefuls are quote-mining and cherry-picking to manufacture the false impression that the UPC is just around the corner when in reality the UPC is pretty much dead (but not buried yet)



  5. Links 17/5/2019: South Korea's GNU/Linux Pivot, Linux 5.1.3

    Links for the day



  6. Q2 Midterm Weather Forecast for EPOnia, Part 4: Happy Birthday to the Kötter Group?

    This year the Kötter Group commemorates the 85th anniversary of its existence. But is it really a cause for celebration or would a less self-congratulatory approach be more fitting? And does it create the risk that a routine tendering exercise at the EPO will turn into Operation Charlie Foxtrot?



  7. Links 16/5/2019: Cockpit 194, VMware Acquires Bitnami, Another Wine Announcement and Krita 4.2.0 Beta

    Links for the day



  8. The EPO's Key Function -- Like the UPC's Vision -- Has Virtually Collapsed

    The EPO no longer issues good patents and staff is extremely unhappy; but the Office tries to create an alternate (false) reality and issues intentionally misleading statements



  9. Stanford's NPE Litigation Database Makes a Nice Addition in the Fight Against Software Patent Trolls

    As the United States of America becomes less trolls- and software patents-friendly (often conflated with plaintiff (un)friendliness) it's important to have accurate data which documents the numbers and motivates better policy; The NPE (troll) Litigation Database is a move towards that and it's free to access/use



  10. Q2 Midterm Weather Forecast for EPOnia, Part 3: “Ein kritikwürdiges Unternehmen”

    A brief account of some further controversies in which the Kötter Group has been involved and its strained relations with German trade unions such as Verdi



  11. EPO Had a Leakage Problem and Privacy of Stakeholders Was Compromised, Affecting at Least 100 Cases

    The confidentiality principle was compromised at the EPO and stakeholders weren't told about it (there was a coverup)



  12. Links 15/5/2019: More Linux Patches and More Known Intel Bugs

    Links for the day



  13. False Hope for Patent Maximalists and Litigation Zealots

    Patent litigation predators in the United States, along with Team UPC in Europe, are trying to manufacture optimistic predictions; a quick and rather shallow critical analysis reveals their lies and distortions



  14. The Race to the Bottom of Patent Quality at the EPO

    The EPO has become more like a rubber-stamper than a patent office — a fact that worries senior staff who witnessed this gradual and troublesome transition (from quality to raw quantity)



  15. Q2 Midterm Weather Forecast for EPOnia, Part 2: Meet the Kötters

    An introduction to the Kötter Group, the private security conglomerate which is lined up for the award of a juicy EUR 30 million contract for the provision of security services at the EPO



  16. Links 14/5/2019: Red Hat Satellite 6.5, NVIDIA 430.14 Linux Driver and New Security Bug (MDS)

    Links for the day



  17. Links 14/5/2019: GNU/Linux in Kerala, DXVK 1.2, KDE Frameworks 5.58.0 Released

    Links for the day



  18. Q2 Midterm Weather Forecast for EPOnia, Part 1: Urgent Shitstorm Alert

    Experts at the European Patent Office's (EPO) weather observation station have just issued an urgent alert warning about a major shitstorm looming on the horizon



  19. Patents That Were Gleefully Granted by the EPO Continue to Perish in Courts

    The decreasing quality of granted European Patents already becomes a growing problem if not a crisis of uncertainty



  20. Links 13/5/2019: ExTiX 19.5 and GNU Radio Conference 2019

    Links for the day



  21. The Microsoft Guide to the Open Source Galaxy

    Thou shalt not...



  22. Microsoft Would Kill the Goose for Money

    Microsoft is just 'monetising' Open Source by using it as 'bait' for Microsoft's proprietary software; those who we might expect to antagonise this have effectively been bribed by Microsoft



  23. Links 13/5/2019: Nanonote 1.2.0, OpenMandriva Lx 4.0 RC, and GNUnet 0.11.4

    Links for the day



  24. Professionally Incompetent EPO Management

    The EPO remains an awful employer, with top-level management largely responsible for the loss of talent and even money



  25. Links 12/5/2019: Linux 5.1.1, GDB 8.3, KStars 3.2.2 Released

    Links for the day



  26. Did Battistelli 'Steal' ~$100,000,000 Euros From the EPO?

    While enjoying diplomatic immunity the thug from CEIPI (who is back at the EPO as a jurist) passed millions if not billions (over the long run) in liabilities; this was done with total and inexcusable impunity, no effective oversight



  27. The Biased EPO Does Not Want to Hear From Anyone Except Those Who Pay the EPO

    The EPO's corruption and violations of the law are a threat to everyone in the world; the EPO only ever listens to those who pay for "access" or those who embrace the "religion" of the EPO



  28. Team UPC Has Run Out of Arguments, So Now It's Just Writing Anti-Brexit Rants With Testicles in the Headlines

    Nothing has worked for firms that crafted and lobbied hard for the Unified Patent Court (UPC); after necrophilia a new low is being reached



  29. Making the Patent System About Productive Actors (Again), Not a Bunch of Law Firms and Trolls

    The US patent system is going out of shape and out of tune, just like the EPO when Battistelli came to it, dismantling the rule of law and even judges whom he did not like



  30. Links 11/5/2019: Mesa 19.0.4, "2019 the Year of GNU/Linux on the Desktop"

    Links for the day


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