The European Patent Office (EPO) isn't recuperating; instead it's trying to just silence causes or sources of dissent

Summary: The EPO is still being run in the spirit of Battistelli; nothing has really changed as the same group of people manages the EPO 'asylum'

YESTERDAY (we're not sure what time exactly) EPO Flier's publication number 46 ("staff reporting and careers") was released. Some readers told us about it. It doesn't look too good for António Campinos because it took 2-4 years of Battistelli before things truly boiled over. Campinos does 'better' (actually worse) than this because people are fed up within only a number of months. He is running out of time as people run out of patience. EPO corruption isn't being tackled; instead it is being swept under the rug, the Office becomes more secretive, and the CSC (not just the union, SUEPO) gets gagged like never before. We've covered evidence to that effect several times since last summer. Campinos himself has not even blogged for a rather long time. Is silence his primary strategy now? He ought to know that it won't work; not for long anyway... not for another 4.5 years. People want to see actions, not mere words, and at the moment they aren't even seeing words. Campinos has repeatedly stonewalled representatives.

The latest EPO Flier publication says this:

28 January 2019

EPO FLIER No. 46

The EPO-FLIER wants to provide staff with uncensored, independent information at times of social conflict

Staff reporting and careers at the EPO: a system that ignores most of the staff

Current system

The current reporting and careers systems at the EPO are not formally linked to each other. This great idea was introduced by Benoît Battistelli but the person holding the pen was probably the current PD 4.3, Elodie Bergot.

The reporting system is based on objectives set by the line manager at the beginning of the year. At the beginning of the next year, the line manager must say whether each objective was met, not met, or exceeded. That’s it. At the end of the report, he can add some comments. He also has to assess the staff member’s core competences and give an overall comment on those.

Separately, line managers have to recommend staff for a career step, a promotion or a bonus. They have no guidance on how to choose what to recommend for which staff members other than being told how much budget they have for steps or promotions and how much they have for bonuses. In this system, it will be reasonably straightforward for the line managers to decide what they should recommend for the very high performers. It is also clear that they will not recommend very low performers for a promotion or bonus¹. But what should they do for the majority of staff, the people in between, who do a good day’s work and give their best to deliver on their objectives? How often should they propose a step, a promotion and a bonus? How should they decide between colleague A and colleague B, who perform equally well? Without clear guidance, it is inevitable that individual colleagues receive a step reward, or not, based on arbitrary criteria. When asked to defend their decisions, some line and team managers have said that performance and reward are not directly linked.² This is not a surprise because Battistelli broke the link between performance and reward.

This uncertainty is demotivating for staff and line managers. There is no transparency on the rewards for a good performance. Over the years, this system will grind everyone – except the high flyers – down and lead to an overall drop in motivation levels, and performance.

President’s meeting with line managers

On 5 November 2018, the president called a meeting of all line managers, with video links between all places of employment. From what we have heard, he tried his best to be positive about the current system and promised that some adjustments were in the pipeline to make it even better. But he failed to answer questions satisfactorily, and the line managers (many of them) reportedly left feeling very frustrated and not “listened to”.

So what happened to the expected new system?

Despite the big meeting and the big announcement about the new, improved system, nothing was implemented before the end of 2018. ILO case law prohibits changing the reporting system in the middle of the reporting period. So this is a big loss of face for those who made the announcement to line managers and it means no new system can enter into force before 1 January 2020.

We don’t know what happened that led to the president putting on the brakes. We hope that he reflected and understood that the problems will not be solved with simple adjustments and that the careers and reporting systems need a complete overhaul. The about-turn is in any case an embarrassment for PD 4.3 and the team working on this matter.

¹ Since a new fast-track procedure for judging on employee’s professional incompetence entered into force (see CA/D 7/17), colleagues who fail to reach their target twice are at risk of being classified incompetent and dismissed. Here, neither the criteria nor the legal framework are clear. See the recent CSC paper “Article 52 Service Regulations – No news, bad news?” (sc19005cp, 18.01.2018), the CSC report on the GCC meeting of 18.12.2018 (sc19002cp, 16.01.2019) on a colleague dismissed last year for professional incompetence, and EPO staff should not be treated as ‘second-class European civil servants’, says CSC (Barney Dixon, IPPro, 22.01.2018).

² See “New Career System in 2018: from bad to worse” (SUEPO The Hague, 17.01.2019, su19003hp)

SUEPO has meanwhile published a link to Kluwer Patent Blog (article published 27/1/2019) and the comments in particular are rather damning; all of them show lack of trust in Campinos; the most optimistic among them just argue he might need more time. Well, how long?

From the anonymous author of this post we have a reference to a recent CSC letter (not the one we've just published):

A letter from the Central Staff Committee, in the meantime, shows that EPO president Campinos’ Listening to the staff has certainly not always led to improvements for EPO employees. The CSC sent a letter to Campinos last Friday about the ‘very inconsiderate treatment’ of several colleagues and about ‘chaotic’ HR management. ‘Staff are seen as, and treated like a faceless commodity – just like pawns on a check-board.

Departmental reorganisations allegedly necessitating multiple sequential transfers in a very short period are proposals which concern ‘the conditions of employment of the whole or part of staff’ (Article 38(2) first bullet ServRegs) and should have been subject to GCC consultation. We consider the non consultation of the GCC when staff is so affected to be, at the very least, a breach of the Service Regulations, but more importantly, a failing of the duty of care that the Office has to its staff. Neither the CSC, nor the affected staff, has been consulted in any way. The treatment which the affected staff members are receiving at present – if maintained – would constitute a new low in staff/management relations. And this is happening at a time when we had finally hoped to see an improvement.

We are taken aback by the total absence of “Fingerspitzengefühl” in the approach to the colleagues. The heavy-handed style of communication merely breeds distress and demotivation, and we have been confronted with several of our colleagues in tears.’

On Campinos, one person then says: "HE DID NOTHING since he arrived, full stop."

Here's the full comment:

Many thanks for reporting to the Public what happens at EPO.

EPO HR practices have indeed not changed an inch since arrival of Mr Campinos (he is said to have absolutely no empathy towards “joe-average” staff members’ issues behind closed doors and he only wants to be seen as a “friendly and accessible chef” in Public).

He lets Bergot run the shop and she does it with her usual level of incompetence. Forced transfers were one of the key elements found contributing to the dangerous HR organisation at France Telecom (an illustration of the duo Battistelli – Bergot’s concrete achievements https://www.politico.eu/article/labor-relations-turn-toxic-in-the-european-patent-office/).

Bergot is responsible for all this.

Campinos finds the “new career” (which is a nightmare for staff as it not only does not reward staff for the efforts done but also attributes unhealthy incentives (focussing too much on quantity vs quality). He has not done anything concrete about the quality of the work done except pretending that he will do something soon. He has done nothing regarding Els Hardon and Laurent Prunier who are still held hostages for wrong-doings they have not committed.

HE DID NOTHING since he arrived, full stop.

One may expect that a new drama will for sure occur e.g. new suicide. The question is not if but when since indeed the fear factor remains the same and it is still coupled to far too high production pressure. This is depressing.

MaxDrei, who used to comment in IP Kat (before they gagged themselves on the subject of EPO corruption), then became the optimist of the bunch (he's an attorney as far as we're aware):

Being an optimist, I seize on these words:

“… the three new vice presidents Nellie Simon, Christoph Ernst and Stephen Rowan, who were elected last October and started in office on 1 January 2019, might be able to change things for the better.”

If I understand it right, Ms Simon will be Bergot’s supervisor. Simon studied at the LSE. Has she got the strength to set Bergot straight? Rowan is a Brit and Ernst is a German lawyer. Suppose all three new VP’s have respect for the Rule of Law. Suppose that President Campinos has been biding his time, gathering his forces and that he regards his three new VP’s as “the cavalry” which will enable him to act in the cause of restoring decency within the rogue State of Eponia, and patching up its reputation in the outside world.

Can we realistically hope along those lines?

In reply, one person said, "you mean the very same Dr Ernst who supported Battistelli all along when he was violating the Rule of Law (Pr Bross was clear enough wasn’t he)?"

Here it is:

question MaxDrei : you sincerely place hopes in Dr Ernst ?

you mean the very same Dr Ernst who supported Battistelli all along when he was violating the Rule of Law (Pr Bross was clear enough wasn’t he)?

Would this mean that Mr Campino alone has neither the courage or the strength or the will to instruct Mrs Bergot to behave (since obviously with the forced transfers and the continuation of her HR policies mainly based on by fear and retaliation she is not behaving) ?

You must be joking!

Ernst defended Battistelli for a long time as Chairman of the Administrative Council, who had previously overlooked Battistelli's financial abuses (Germany later vetoed the most controversial among Battistelli's financial instrumentations). Moreover, Battistelli's denial of patent quality's decline was later echoed by Ernst -- publicly even -- as one might expect not from a doctor but a pseudoscientist who denies climate change in spite of the overwhelming evidence and scientific consensus.

"The Convention watchdog" then wrote: "As head of the German delegation in the Administrative Council and more recently as President of the Council Mr. Ernst shares the Council’s responsibility for most of the developments in the past years. In particular, this applies to the punitive actions against the Boards of Appeal following decision R 19/12, including the failed structural reform aimed at efficiency instead of true independence, the exile of the Boards outside Munich and the handling of the Corcoran case showing that a Board member can be removed from office withoiut observing the garanties laid down in Article 23 (1) EPC. Nothing has changed in this respect. Rather, getting rid of a Board member who is not welcome to the management has become much easier: Reappointment has become dependent on a positive report and which manager will write a positive report on a person responsible for decisions not following the accepted mainstream. Dont forget, the President of the Boards is not just primus inter pares as a presiding judge should be. Rather he manages the Boards as laid down in revised Rule 12a (2) of the Implementing Regulations and his own dependency on his reappointment will not encourage him to risk conflics with the President of the Office or the Council. And the President of the Office has not lost his say when it comes to reappointment of Board members (cf. Rules 12d (3), 12c (2) EPC). The doubts about the rank of the rule of law in the EPO have not disappeared with the new President and his new team of Vice Presidents."

Concerned observer topped that up with this:

If a (serious) breach of the Service Regulations can be proven, what would be the consequences?

I think that if the boot were on the other foot (that is, if it were an employee that breached the Regulations), then it is pretty clear that disciplinary proceedings would ensue, and could lead to dismissal.

That option is unlikely to be available in this instance, as the relevant internal Committees and Boards can hardly commence proceedings against the whole Organisation. But what if it can be proven that the breach by the Organisation was directed by an individual employee (or a small collection of employees)? Does this mean that we can expect the AC to exert the disciplinary authority afforded to them under Article 11(4) EPC?

But wait! Would it not be essential for the AC to first establish whether there had indeed been a breach of the Service Regulations? Do they have the power to commission such an investigation or would they need to wait for the President to provide a report (and recommendations) on the matter? And if the AC does not need to wait for the President, what information would they need to receive in order to start taking matters into their own hands?

Based upon the AC’s prior performance, I think that it would be pointless to expect them to take action, if even if they are empowered to do so. As pointed out by Attentive, the President will certainly have his own interpretation of the Service Regulations that (no matter how unsupportable) could easily be wheeled out to provide a prima facie reason for the AC’s inaction. And it is of course unlikely that the President would investigate himself or any of his senior staff.

So we can conclude that reliance upon the provisions of the EPC is unlikely to provide legal recourse for affected EPO staff. But what about the option of taking a case to the AT of the ILO? That could be suitable if one is an individual affected by an order issued in breach of the Service Regulations and one has the time to exhaust all internal remedies before waiting many months for the ILO to take up the case. But then, by the time that the ILO issues their judgement, the (series of) forced transfers would have come to pass, meaning that the best one can hope for is a Pyrrhic victory that awards costs / damages but does not reverse transfers that have become a fait accompli.

So, in the light of the above reasoning, does this mean that EPO staff have no effective legal recourse against forced transfers EVEN IF those transfers have clearly been issued in breach of the Service Regulations? If so, is it not high time to revisit the extremely shaky reasoning of the Dutch Supreme Court and to own up to the fact that this represents a serious breach of the human rights of EPO staff, and in particular their right to COLLECTIVE bargaining (that is, a right that can NEVER be asserted before the ILO because: (1) it concerns a union, and not an individual; and (2) is intended to address the lawfulness of a provision BEFORE it comes into effect)?

Seeing the above comments (and 3 more), it's not hard to conclude that the general consensus is that Campinos is more 'hot air' than substance -- something that ought to have been evident since Battistelli lobbied rather aggressively for his appointment. Campinos isn't an alternative to Battistelli but more like "Battistelli's man" at the EPO. They're also of the same nationality, as usual... ⬆