AS we've just explained, Koch v EPO [1, 2, 3, 4, 5] is an important case/appeal as it shows how useless ILO-AT has become. ILO is aware of the problem (it spoke about it several times), but it has not tackled the problem. Instead, it's meeting with EPO management while snubbing staff representatives/unions. This helps show whose side ILO is taking, as one might expect from an international organisation created for and by the rich and the powerful, not the besieged and the powerless.
"This helps show whose side ILO is taking, as one might expect from an international organisation created for and by the rich and the powerful, not the besieged and the powerless."From the EPO's reply in Koch's case (AT 5-4384) we know that the Tribunal (ILO-AT) issued Judgment number 4131, and that it thereby seems to "row back" from its former standard Jurisprudence which used to be considered rather competent and decent, at least during the good old times of Justice Mary Gaudron.
While it has been the Tribunal's standard Jurisprudence that organisations may not withdraw final decisions (withdrawal would contravene the principle of good faith, for instance), see Judgment number 2906, under 8., Judgments number 994, under 14., or Judgments number 1006, under 2., as the Tribunal seemed to allow the EPO withdrawal of final decisions and "re-running" of internal appeals (IAs) on its own initiative; see Judgment number 4131, under 5. -- yet that specific case was irreceivable for a different reason (the appeal concerned an intermediate step and therefore failed), i.e. cons. 5 of Judgment 4131 was irrelevant to the decision in that case.
Yet, it would be the end of Rule of Law if the Tribunal went further in the direction set out in Judgment 4131, under 5., and allowed the EPO to withdraw final decisions and to "re-run" appeals on its own initiative, without the complainant(s) being involved, also in other cases; see the arguments in para. 22 and subsections of this reply [PDF] -- many of them are general, some more specific to Koch's case. The clear risk is that cases will go back and forth between the EPO and the Tribunal without ever being treated in substance by the Tribunal.
"The clear risk is that cases will go back and forth between the EPO and the Tribunal without ever being treated in substance by the Tribunal."Even worse: In the meantime the EPO "legalised" the unbalanced composition of the Internal Appeals Committee (IAC) which had been reproved by the Tribunal in Judgment no. 3785, under 7., i.e. participation of volunteers being nominated by the President or selected by lots(!) instead of being nominated to the IAC by the Central Staff Committee (as it used to be). And now, disturbingly, the Tribunal mentioned the IAC (of 2018 and thus composed according to the EPO's new rules from the Battistelli era) as "properly constituted" in Judgment 4131, under 3. -- which, of course, the EPO's lawyers already used against Koch, to prevent the treatment of the case in substance, though the case is already delayed for 6 years since Ms. Bergot's adverse decision of September 2013 against Koch.
On the "good" side: the remark under cons. 3 of Judgment 4131 was not relevant to that particular case, as it failed for a different reason. Yet, if this route is continued, it would also mean that the Tribunal would no longer respect the principle of non-retroactivity embraced by it in the past -- see under 22.2.8 of the reply -- and that it would help the EPO benefit from its own turpitude, not just once, but multiply, as the repetition of the IAs would be purely formal (the composition of the IAC not having changed, just having been "legalised" by the EPO). Such "re-running" would generate more delay, more work and higher costs for complainants and potentially prevent treatment of certain cases in substance (like Koch's cases, which she is unable to treat in parallel, in two instances, see para. 22.1.7 and 5.1 of the reply). ⬆