As of last night, based on the timestamp in the page, the Association of the Members of the Boards of Appeal (AMBA) had this to say as Battistelli's attacks on the boards intensify (they don't mention Battistelli specifically, for the sake pf diplomacy):
Open Letter to all Stakeholders with an Interest in Maintaining the Boards of Appeal of the EPO as an Independent Judicial Body
The Boards of Appeal (BoA) are the body within the organisational structure of the European Patent Office taking final decisions on appeals against decisions refusing patent applications and revoking patents. Thus, they must meet the requirements of TRIPS and national constitutional law “Rechtsweggarantie/Access to justice”.
After two years of work, the European Patent Office has produced a proposal for re-structuring the BoA. The President will put this to a vote by the Administrative Council (AC) at the end of June.
The aim is to increase the BoA’s independence, within the limits imposed by the EPC. However, while some aspects of the proposal have a superficial appeal, even minimal reflection on the principles underlying judicial independence shows that the proposals are very wide of the goal, namely to increase the functional independence of the BoA without changing the EPC.
The issue came to the fore after the Enlarged Board’s decision R 19/12 in which the Enlarged Board of Appeal (EBA) decided that its Chairman, who is simultaneously Vice-President of the BoA, was not independent because of his administrative functions within the Office. That the proposals represent a serious deterioration, as compared to the situation before that decision, is evident from the following.
The status quo before R 19/12
- The President’s respect for the BoA’s judicial independence meant he did not intervene in their functioning, and de facto delegated his powers to the Vice-President, on the basis of Article 10(2)(i) EPC.
- The BoA were responsible for selecting members and chairmen, and the President then proposed their appointment by the AC.
- At the end of a member’s five-year term, re-appointment was the default, in the absence of serious reasons.
- The Rules of Procedure of the BoA were adopted by the Presidium, subject to the approval of the AC. The President played no part.
- The Office President shared the responsibility with the AC of selecting and appointing the BoA Vice-President, who is simultaneously the Chairman of the EBA – the highest judicial position in the European patent system.
The proposal
- Delegation
- The President of the Office’s “act of delegation” aims at clarifying his lack of influence over the BoA, but in fact makes clear that he can and will intervene for any number of reasons, including whenever he considers the “interests of the Office” to be at stake.
- Independence
- The proposal does not codify any new guarantee of independence.
- There is a problem of external independence. Apart from being accountable to the AC, the President of the BoA is bound also by the BoAC’s “guidance” and “objectives”, and holds his powers only so long as the President of the Office deems fit.
- There is a problem of internal independence. Key judicial tasks are placed in the hands of a single person, the BoA President. This is aggravated by the following point.
- The AC can only appoint a President of the BoA that the President of the Office proposes because the latter retains his power to propose the appointment of the Chairman of the Enlarged Board of Appeal.
- Shoehorning the career structure of the BoA members into the performance-based system of the rest of the Office ignores the BoA’s judicial nature. It also produces strange, not to say inexplicable, results: young members start on unusually high grades and experienced members are downgraded.
- Security of tenure
- There is, de facto, a loss of security of tenure because re-appointment is subject to a positive recommendation in the light of unspecified reporting and performance criteria.
- The advisory body to the AC (BoAC)
- The BoAC is to “monitor the independence” of the BoA, but has no means of guaranteeing it, or, indeed, clarity as to what such monitoring entails.
- The BoAC is responsible for “guiding” and “controlling” the President of the BoA regarding general objectives, performance criteria, the annual report, the budget request and its execution, and even criteria for the distribution of cases, an area that currently falls within the power of the Presidium.
- The President of the Office is entitled to participate in all meetings of the BoAC.
- The BoAC, rather than the Presidium, adopts the Rules of Procedure of the BoA after consulting the Office President.
Conclusion
In the Boards’ view, if this proposal is adopted in its present form, it will inevitably result in further challenges before constitutional courts and before the Enlarged Board as in R 19/12.
In our view, it would be far better to reject this proposal and accept that the problem underlying R 19/12 has in fact already be resolved by the Vice-President’s withdrawal from management activities.
Additional considerations
This reform has not proceeded in a way commensurate with the importance or status of the BoA and the user and public interest. There has been a lack of transparency and any meaningful consultation, as can be deduced from the following:
- The ideas in the project have essentially not changed since the original paper CA/16/15, which was criticised by the Boards, users and some delegates of the Administrative Council.
- The “consultation” with the BoA amounted to no more than discussing our proposals, no aspect of which was incorporated, and last minute discussion of finished drafts, which were not changed at all.
- No meaningful consultation took place with any stakeholder. The on-line user consultation invited users to give answers to leading questions about invented problems, and the responses were then misrepresented.
- The proposal contains several aspects that the AC had regarded as secondary (efficiency, location) or had not been aware of at all (fees).
- A new location is being pursued without any contact with the BoA.
- An efficiency study of the BoA was commissioned without informing either the BoA or the AC.
Further information can be found on the AMBA website and in particular in an information pack that formed the basis of a recent panel discussion event in Munich where distinguished judges debated the principles of judicial independence and their application to the BoA.
We encourage any stakeholder with an interest in this matter to make their views known to their national delegations in the AC, who already have access to the proposal.
Yours faithfully,
The Association of Members of the Boards of Appeal