03.26.16

Battistelli is Trying to Save His EPO Job After Getting Called Out, But Doesn’t Give Back Busted Union Leaders Their Jobs; Strike Imminent

Posted in Europe, Patents at 3:45 am by Dr. Roy Schestowitz

“Lawfulness at the EPO” — a protest scheduled for the start of April

Summary: In spite of the Administrative Council’s request for justice, Battistelli and people in his circle continue to make merely symbolic moves, like signing a laughable deal with a union nobody cares about and now making a slight amendment in one among many disciplinary cases (past and present) against staff representatives at the European Patent Office (EPO)

THE illusion of "justice" at the EPO severely damaged the credibility of the whole Organisation, not just the Office. It is therefore unsurprising that the Council assertively asked Battistelli to repair this damage by restoring at least the perception of justice — something which probably isn’t in the École nationale d’administration (ÉNA) syllabus.

In our previous post (Request for Review) we showed a letter from the Chairperson of SUEPO in Munich (recently re-elected). Earlier that day we had mentioned a concession. It didn’t show a softer side of Battistelli but a Battistelli who is increasingly afraid because his sense of omnipotence is significantly eroded. As one person put it: “This decision is all the more remarkable that is the first example under Mr. Battistelli’s rule that the president has taken a step back.

“…it seems now obvious that the present management has the intention to survive all this at all cost!”
      –Anonymous“Not only was the decision revised to the advantage of the individual but also the letter does not contain any form of threat in conclusion – as most presidential communications did so far.”

This should not be mistaken for softness, however, as actions speak louder than words and virtually no action has been taken to undo the damage already caused. “Last week’s meeting with the Office management,” for instance, “had given no sign that this review had even been considered by the President.” That’s according to people close to the action (or inaction rather).

“In essence [Battistelli] maintains the dismissal but cancelled the 20% reduction of pension. In substance it rejects the existence of any procedural flaws and all the arguments presented by the defendant qualifying them as allegations and reiterates the appropriateness of the sanctions decided. [...] the offer to use external insight to review the case, requested both by the AC and staff, has been ignored. [...] it seems now obvious that the present management has the intention to survive all this at all cost!”

That would be terrible, as HR errors (or horrors) have throughly poisoned (or stacked) the management ranks, making the EPO a miserable place for people to work in, hence a discouragement to job applicants and a place incapable of attracting new talent, only losing existing talent. This would seriously harm Europe in the long run because as the USPTO serves to show with its appalling examination standards, spurious litigation and an atmosphere of fear is now prevalent nationwide there. Rather than becoming renowned for innovation and well known for science (like CERN or NASA, the latter being increasing de-funded) it is becoming notorious for patent trolls and aggression with lobbying by large multinational corporations such as IBM or Microsoft (busy blackmailing Asian companies just like Apple).

Perhaps the key point here is that there’s an HR (human) issue and unless the management gets replaced, not much will change. The crisis is guaranteed to only deepen. As one comment put it last night: “In order to save himself and his squalid team for the future glory of the Unitary Patent, Mr Battistelli now steps back on the excess punishment which in a sadistic move he imposed upon the staff representatives: Els gets back her 20% of pension (please remember that no long ago, against the unanimous opinion of the disciplinary commmittee, she was downgraded, so her pension is less any way); Jon will probably be reinstated “in an act of grace” because he has a 5 children. Do not make yourself any illusions: this is not justice but a move to save his a… The squalid representatives at the AC will believe they have regained control of the situation and tamed the President. He will continue as before exerting his mad authority and destroying the good working atmosphere and the reputation of what used to be a model International Organisation. The best employees will retire earlier or look for another job elsewhere. What remains is a bunch of servants at the management level and a mass of humiliated examiners fighting against each other for step advancements and bonuses. Attorneys and their associations have been silenced, bloggers neutralised, press has been bought. In a few week nobody will care any more about the EPO.”

“Not too surprisingly, in light of the (in)action above, the Office-wide (i.e. multinational) strike will happen and it seems like a matter of “when”, not “if”.”Battistelli “decided to reduce Hardon’s sentence by reinstating her pension rights,” one reader told us, “while confirming her dismissal.”

“The thing smacks of a diversionary tactic,” this reader told us (similar tactic to the FFPE-EPO MoU). “It’s like if he’s throwing a bone to the AC to keep it quiet. The Prince may be unfair, but he’s magnanimous.”

Not too surprisingly, in light of the (in)action above, the Office-wide (i.e. multinational) strike will happen and it seems like a matter of “when”, not “if”. Here is a letter from a solicitor:

Dear Sirs or Madams,

on behalf of the initiators of the strike “Lawfulness at the EPO” I send you the following message:

Dear members of the CSC

We, the initiators of the recent call for strike, entitled “Lawfulness at the EPO”, would like to thank you for agreeing to act as the contact point for discussions with the office, and for all the work you have done so far to support the strike call.
The Administrative Council and your meetings with the EPO’s management have now taken place and have failed to yield significant progress. We are sure, therefore, that the 754 signatories to the petition for the call for strike, and the 3701 colleagues who voted yes will be expecting an immediate reaction from us.

The call for strike stipulates that a one-day office-wide strike should take place in March. It is no longer possible to organise a strike in March, but we would like the strike to happen at the earliest opportunity. Taking the Easter holidays into consideration, we believe that the week of 4 to 8 April would be that opportunity. Our preference would be for a mid-week strike, on 6 April. If for any reason we need to exclude 6 April, then 7 April would also be acceptable.
Thank you in advance, as our representatives vis-à-vis both the office and the staff, for setting the wheels in motion to fix the strike date and to ensure that a maximum number of staff follow the call for what could be a crucial day in the history of the EPO.

We kindly ask you to publish this letter so that all staff can read it and know the position that the strike initiators are taking.

Your colleagues,

The initiators of the call for strike “Lawfulness at the EPO”

With best regards

[redacted]

For future record, not an endorsement in any shape or form, the letter from Battistelli is shown below. We were tempted to post a response to some of the most nonsensical parts of it (I have read many documents related to this, so I’m capable or responding to some points), but it would be very time-consuming a task given the length of the letter.

European Patent Office | 8029B MUNICH | GERMANY

By courier

Ms E. Hardon
An der Hauptfeuerwache 4
80331 München

Decision of the President – file number RR 2016-0020

Dear Ms Hardon,

On your request for review dated 28 January 2016 against the President’s decision dated 15 January 2016 following the disciplinary procedure D8/2015,

the President takes the following

Decision

Your request is partially granted. The decision to dismiss you, in accordance with the Disciplinary Committee’s opinion is maintained. However no reduction of pension rights will apply.

Rationale

Receivability

Your request for review is treated as receivable insofar it relates to the aforementioned decision of 15 January 2016.

As far as the earlier decision to downgrade you is concerned, it is noted that the matter is currently pending before the Administrative Tribunal of the International

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Labour Organisation and you cannot hereby attempt to reopen another procedural route against said decision.

Procedural Objections and Merits

It has been concluded that your request for review is unfounded in all respects.

Having reviewed your submissions, it is concluded that the disciplinary procedure is not tainted by any procedural or any other flaw and that your rights as defendant have at all times been observed by the Office and the Disciplinary Committee.

Your specific procedural objections filed with your request for review and also those previously articulated in a letter dated 02.12.2015 sent on your behalf by RAin Okyay, have been reviewed carefully.

As regards your allegations of bias, there are no grounds to shed doubts on the Disciplinary Committee’s impartiality. In particular, the participation of Mr C. McGinley as a member of the Disciplinary Committee following the drawing of his name at the lots was fully lawful. Contrary to your assertions at paragraphs 24-25 of your request for review, no conflict of interest could be established. Mr McGinley transparently disclosed the background of the episode you invoke to the Disciplinary Committee, which accepted these explanations after balancing them against your objection. The Committee unanimously concluded that there were no reasons to recuse Mr McGinley from his capacity in the Committee and you have not brought forward any new argument in your request for review which could justify concluding otherwise.

Concerning the procedural means at your disposal, you have provided no new arguments to undermine the conclusion that the investigation and disciplinary procedure followed due process. It is particularly noted that you have chosen not to avail yourself of the opportunity given to you of attending a further oral hearing scheduled for 8 January 2016. Moreover, whereas you criticise the

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review procedure at your disposal, you do not really bring forward any elaborated as well as substantiated argumentation in support of your position.

As to your allegation that you have been subject to institutional harassment, it is hereby strongly rebutted: the situation you find yourself in results from your own deliberate choice of an unacceptable behaviour as per the applicable standards of conduct, which you regretfully continue to try to justify. Your serious misconduct cannot however be left unpunished.

With regard to the first set of charges the following is noted:

The investigation against you under C-62b was a separate matter from the investigation C-62 concerning a member of the Board of Appeal. The material gathered in support of case C-62b was sufficient to substantiate the charges brought against you. The President of the Office has full disciplinary authority under Art. 10 EPC overall staff for which he is the appointing authority, including yourself. There is no conflict with any other independent procedure initiated by or pending before the Administrative Council. It was noted, when reviewing your submissions, that the Disciplinary Committee reached the same conclusion, unanimously, in para. 44-45 of its opinion.

As regards the content of the C-62b file, the following is noted:

Before the delivery of the preliminary findings of the Investigative Unit, you were duly invited to an interview with the aim to hear your comments on the matter. You decided however not to avail yourself of it. As a result the preliminary findings were drafted without any defence comments from your side.

On 16.11.2015 the President received these preliminary findings pursuant to Art. 4 (7) of Circular No. 342. These findings had already been sent to you earlier on the same day and you were provided with a deadline of seven days to submit your comments, in compliance with Art. 18 (1) of Circular No. 342. You were thereby given a second opportunity to be heard. The preliminary findings

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showed clear evidence of serious misconduct relating to an organised campaign of destructive attacks upon the reputation of the EPO, its governing bodies and individuals. There were thus sufficient grounds for the Investigative Unit to inform the President thereby giving him the opportunity to protect the Office’s interests. It is also noted that in this second opportunity to be heard you submitted your written comments in response to these allegations, but, after considering those comments, these allegations were still regarded as well-founded and justified disciplinary action. It is thus concluded that the rights of the defence were fully respected.

Throughout the investigation and the disciplinary procedure you had every opportunity to defend yourself as you wished and to rely upon or submit evidence to rebut the allegations made. You enjoyed the support of a number of lawyers and your rights both as respondent and defendant were fully respected. Contrary to your assertions, there are no grounds to believe that the accusations were “patched together”, inadequate or manipulated by the Office. It is apparent from the disciplinary file that there were several incidents of severe misconduct which were brought to light during the investigations. There was no reason to bring them before the Disciplinary Committee in separate or parallel procedures. It is worth noting also that some of the conduct subject of these charges occurred and continued during the actual proceedings and therefore fell naturally within the competence of the specific Disciplinary Committee.

In reviewing your submissions, it is again noted that the Disciplinary Committee reached the same conclusion, stating in para. 5 of its opinion that the use of Art. 4 (7) of Circular No. 342, “did not impact on the substance of D 8 /2015, and indeed the Defence had ample opportunity to present their case during the Hearing”.

As regards your claim from para. 16 of your request for review, you seek to invoke a separate procedure pending before a different body and against a different staff member, with its own factual background. The findings of the Enlarged Board of Appeal in that separate procedure are not relevant to your

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case. It is not considered appropriate for the Office to make any further comments on that matter save to point out that the decision of the Enlarged Board of Appeals you have attached to your request is related to confidential proceedings. The Office observes with concern that in a case where you have been found, by the unanimous opinion of its Disciplinary Committee, to have breached the fundamental rules of confidentiality of your employment, you continue to show a disregard for the conditions of confidentiality governing documents pertaining to an internal confidential process. It is noted that you persisted in referring to that document at the oral hearing of the Disciplinary Committee despite repeated warnings from the Chair of the Disciplinary Committee to desist. Your legal representative, similarly, and despite warnings regarding the confidential nature of this material, persistently cited from it (para. 7 of the Committee’s opinion). The Office is thus obliged to reserve its right to take any appropriate steps under the Service Regulations as regards this wrongful, unauthorised disclosure.

Moreover, in response to paragraph 16 of RAin Okyay’s letter of 02.12.2015, it is worth emphasising that the Investigative Unit did not access or survey your private e-mail account as specified by Ms Okyay. It merely relied upon information already available to it from 2014 HTML snapshots of an anonymous account of the subject staff member in case C-62 – in this respect, the fact that the date of 2015 appears is merely linked to the access/printing date for the HTML file for this report, and does not signify the date when it was obtained.

During the entire process, as explained also before the Disciplinary Committee and as fully endorsed by its members, all investigative steps were in any event covered in their entirety by the permission of the Data Protection Officer of the Office and thus all evidence collected was fully admissible in the investigation and disciplinary procedures.

II.

As regards the second set of charges concerning your threatening behaviour towards other elected staff representatives, it is worth recalling that while staff

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and union representatives benefit from a degree of latitude when exercising their freedom of expression in that role, they are bound by the standard of conduct applicable to all Office employees as international officials. A breach of such standards, whatever the forum in which it occurs, is a matter of legitimate interest to the Office as employer. Misconduct of staff and union representatives indeed cannot be considered solely a matter for handling by the staff and union representation. Hence your contention that the investigation into your conduct and subsequent disciplinary action breach the principles of confidentiality and freedom of association is misplaced (see ILOAT Judgment No 54, consideration 6).

The fact that the statement giving rise to the disciplinary procedure was made during a meeting of the Local Staff Committee in Munich is therefore not, without more, an answer to the charge made. The statement was made in the premises of the Office and amongst employees of the Office who all remain protected and bound by the ServRegs and Circular No. 341 at all times, regardless of their function or area of activity. The Office moreover has a legal obligation to protect those present from intimidation including by your words or actions and any verbal or physical threats.

It is noted that the Disciplinary Committee took great care, as it made clear in paragraph 4 of its Opinion, to consider only matters which went well beyond any reasonable definition of the duties of a staff or union representative. Your suggestion that your behaviour was normal as part of a lively discussion cannot be accepted.

Having reviewed your submissions in paragraphs 17 to 25, it remains the Office’s position that the statement which you made, twice, to your colleagues and the accompanying hand gesture, threatened the dignity of your colleagues, Contrary to what you suggest, your statements and the accompanying hand gesture have been sufficiently evidenced throughout the investigation and disciplinary proceedings. It is further considered that the statement was made in full knowledge that it would stand to impair their ability to fulfil their functions as

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elected representatives on behalf of other employees, and in furtherance of employer-employee relations. It was the Office’s clear duty to investigate such an incident, and respond to it appropriately.

The Disciplinary Committee’s opinion also supports the Office’s decision to investigate this incident. It advised that you had behaved in ways which were “incompatible with [your] duties as a staff member and as an elected staff representative” (para. 66 – 69 of its opinion). Under these circumstances, your grave misconduct is not excused or materially mitigated by your holding a representative post (see also the ILOAT case law J. 87 and 969).

III.

As regards the third set of your charges, you repeat your opinion in your request for review that no confidentiality was warranted in the present case and that your actions were justified to enhance transparency in a public-service organisation. It is considered that your submissions fail to understand the gravamen of this charge. You were at all times obliged, pursuant to Art 5, 14(1) and 20 ServRegs and Art 4 of Circulars No. 341 and 342 to respect the confidentiality obligations which are fundamental to any staff in investigation and disciplinary procedures. The Disciplinary Committee considered this point fully and has concluded, unanimously, that there was clear and undisputed misconduct. You not only admitted such misconduct but endorsed it openly, and declared your intention to persist with this behaviour in the future (para. 74, 79-81).

The Office maintains that these fundamental breaches of your duty of trust and confidence as an employee have been conclusively proven.

It cannot be argued, as you do, that staff has a “legitimate interest” to be fully informed not only about the initiation of investigation or disciplinary procedures but also about the details of such procedures when they concern staff or union representatives. It is on the contrary in the interest of both Office management

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and staff representation to ensure that investigation and disciplinary proceedings are handled with all due confidentiality.

Lastly, as regards the Office’s decision to terminate your service with a 20% reduction of your pension rights pursuant to Art. 93 (2) (f) in fine, the Office observes that the Disciplinary Committee’s recommendation is, of course, not, binding upon the President. Reference is made by way of example to the fact that when rejecting the conclusions and recommendations of an internal Disciplinary Committee, a President of an international organisation is obliged to provide adequate reasons for so doing.

The Office has provided sufficient reasons in its decision (cf. inter alia Parts IV and V) to explain why, contrary to the Disciplinary Committee’s recommendation, it considers the reduction is proportionate to the number and seriousness of the breaches established. The President underlined, inter alia, the repeated nature of the misconduct, its extent, the lack of any contrition or regret from your side, the public damage to the reputation of the Office and, further, the fact that you had already been sanctioned with a downgrading for a similar disciplinary misconduct in 2014. Those circumstances clearly show conduct evidencing a breakdown in the relationship of mutual trust and confidence necessary for the maintenance of the employment relationship, indeed they go well beyond such conduct in their seriousness and potentially damaging effect and hence the Office expressly rebuts the allegations that the sanction was disproportionate and arbitrary.

This having been said, after a comprehensive reassessment of your case and taking into account the length of your contribution to the Office’s service and commitment towards staff representation albeit unfortunately in the recent years through improper means which went far beyond any acceptable limits, I have decided on an ex gratia basis to partially grant your request for review and cancel the 20% reduction of your pension rights. However your unacceptable behaviour fully warrants dismissal and the decision of 15 January 2015 is thus maintained to that extent.

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Means of redress

This decision constitutes a final decision within the meaning of Article 113 of the Service Regulations.

Yours sincerely,

Benoît Battistelli

There is too much nonsense to respond to in-line without it taking a long time (and pulling a lot of references to support the response), but those who have followed this site long enough will instantaneously see the flaws. It might be enough to fool some who are inside the Council (too busy to follow it all along and read all the exchanges) and this is probably what Battistelli is counting on. For instance, Battistelli’s letter (or someone’s letter with Battistelli’s name added to) says Hardon has “chosen not to avail [her]self of the opportunity given to [her] of attending a further oral hearing scheduled for 8 January 2016.” Members of the Council (Administrative Council) must learn the whole farcical nature of the so-called ‘disciplinary’ procedure (not compatible with European law, human rights etc.) in order to understand why Hardon, with proper legal advice/consultation, doesn’t walk into the lion’s den. There is no justice there, it’s only a amphitheater like in old Rome. █

“I am not interested in power for power`s sake, but I`m interested in power that is moral, that is right and that is good.”

–Martin Luther King Jr.

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