SIX months ago the Central Staff Committee of the EPO released a chain of letters/correspondence about the "functioning of the ApC" (Appeals Committee), taking note of several issues that persist since the Benoît Battistelli era. Of course, as usual, António Campinos does nothing to address such issues. He is to Battistelli what Fanta was to Cola.
Letter to the President indicating five key elements for the Appeals Committee
The proper functioning of the Appeals Committee (ApC) has been a recurring topic in discussions with the President, both orally and in writing. Among others we have insisted to be involved in the “Appointment of the Chair and two Vice-Chairs of the ApC” (see our letter of 31 January and our reminder of 3 April 2020 ) to be made before 5 October 2020. However, until now we have not received any real commitment from the President.
In his recent letter of 22 April 2020, the President refers once again only to his commitment to keep us informed on the round of appointments in 2020 (see his letter of 12 November in reply to our request letter of 24 July 2019 on “Transparency in duty allowances and appointing procedures for the ApC”). He mentions then further the necessity of discussions with all stakeholders to improve the functioning of the ApC before submitting proposals to the Administrative Council.
To this end, we listed five key elements for the neutrality and good functioning of the ApC:
The nominations of the Chair and the Vice-Chairs of the ApC should be based on mutual agreement between the President and the Central Staff Committee and should respect diversity;
All staff members should be eligible to function as members of the ApC;
The independence of the members should be protected by the Service Regulations;
The procedure before the ApC should be guided at all stages by the principles of fairness and equal treatment. Proper fact finding and the right to be heard are mandatory principles, in line with the case law of the Tribunal;
Members of the ApC should be given enough time in order to perform their duties properly.
We informed the President that we are ready to embark immediately into discussions in a small working group and nominated our representatives.
We look forward to being invited soon to a kick-off meeting.
Reference: sc20015cl-0.3.1/5.2 Date: 31.01.2020
European Patent Office | 80298 MUNICH | GERMANY Mr António Campinos President of the EPO
ISAR - R.1081
Appointment of the chair and two vice-chairs of the Internal Appeals Committee pursuant to Article 111(2) ServRegs
Dear Mr. President,
You will appoint the chair and two vice-chairs of the Internal Appeals Committee before 5 October 2020. The Administrative Council will also make appointments for their Appeals Committee pursuant to Article 111(1) of the Service Regulations.
The CSC is convinced that the good functioning of the Appeals Committee is of particular importance in order to ensure social peace and legal certainty in the Office and to avoid further litigation before the Administrative Tribunal of the International Labour Organisation. This requires that staff must trust and accept the proceedings and the opinions delivered by the Appeals Committee. This is why the persons whom you will appoint will have a very important role to play.
The CSC is willing to play its part constructively and therefore asks for participation in the forthcoming selection of the chair and vice-chairs. In view of the time remaining, the CSC would very much welcome an early start of the selection process and in particular an early publication of the vacancy notices for the positions of chair and vice-chairs.
Yours sincerely,
Joachim Michels
Chairman of the Central Staff Committee
Annex.: Letter to Mr J. Kratochvíl, Chairman of the Administrative Council
Reference:sc20016cn-0.3.1/5.2 Date: 31.01.2020
European Patent Office | 80298 MUNICH | GERMANY
Chairman Administrative Council Mr Josef Kratochvíl
Room – R. 1041
Appointment of the chair and two vice-chairs of the Appeals Committee pursuant to Article 111(1) ServRegs
Dear Mr Kratochvíl,
The appointment of the chair and two vice-chairs of the Appeals Committee pursuant to Article 111(1) ServRegs dealing with appeals against decisions taken by the Administrative Council must be made by 5 October at the latest.
The President of the Office will also have to make appointments pursuant to Article 111(2) ServRegs. We have informed him of our willingness to play a constructive role in the selection process (see attachment) because we consider the involvement of the Staff Committee in the selection of chairpersons to be highly desirable in order to ensure a high level of acceptance of the appeals system by staff.
We would very much welcome the earliest possible start of the selection procedure, in particular the early publication of the vacancy notices. We hope to receive positive notification and we thank you for your kind consideration.
Yours sincerely,
Chairman of the Central Staff Committee
Annex.: letter to Mr A. Campinos; President of the EPO
Reference: sc20057cl – 0.3.1/5.2 Date: 03.04.2020
European Patent Office | 80298 MUNICH | GERMANY
Mr António Campinos President of the EPO
ISAR – Room 1081
Appointment of the chair and two vice-chairs of the Appeals Committee pursuant to Article 111(2) ServRegs (gentle reminder)
Dear Mr President, dear António,
Two months ago, the Central Staff Committee addressed a letter (see attachment) to you concerning the appointments of the chair and two vice-chairs of the Appeals Committee. These appointments should be made before 5 October 2020. The selection procedure should therefore take place as soon as possible. We then briefly discussed this issue with you in our face-to-face meeting on 13 February 2020. In that meeting you stated that you would come back to us soon regarding the appointments. Further discussions took place in the GCC meeting on 2 March 2020.
However, as of today we have still not received a response to our request to participate in the forthcoming selection of the chair and vice-chairs. We are therefore now reiterating our request with the hope that we can resolve this matter soon.
We understand that during the current pandemic holding interviews will be rather difficult. Still, we believe that early publication of the vacancy notices for the positions of chair and vice-chairs is appropriate as that will attract a larger pool of suitable candidates. We also believe that our involvement at the beginning of the appointment process would be appropriate, so that issues such as gender equality can be discussed before the vacancy notices are published. By us playing a constructive role in the selection process the level of confidence that staff has in the internal appeals procedure will also be improved.
Sincerely yours,
Joachim Michels Chairman of the Central Staff Committee
Annex CSC letter of 31 January 2020 (sc20015cl)
Mr Joachim Michels Chairman of the Central Staff Committee By email: centralSTCOM@epo.org
Your letter dated 3 April 2020
Dear Mr Chair,
I thank you for your letter dated 3 April 2020 regarding the appointment of the Chair and two Vice-Chairs of the Appeals Committee pursuant to Article 111 (2) ServRegs.
In my letter of 12 November 2019, I already committed to keep you informed about the upcoming round of appointments in 2020 and to provide the CSC updates on the selection procedure, including advance information on the names of the considered appointees prior to public announcement.
As announced in the meantime, the Office is also exploring the possibility of extending the pool of potential appointees to the Appeals Committee. This question, together with further ways to improve the functioning of the Appeals Committee (such as adequate safeguards related notably to conflict of interest, rules of replacement, possible rotation policy, creation of 4th chamber, gender diversity, etc.) needs to be analysed thoroughly and discussed with the different stakeholders before proposals are submitted to the Administrative Council.
Unfortunately, as you have rightly mentioned, due to the current situation that we are facing with the Coronavirus, the feedback expected from the Chair and Vice-Chairs on these elements take more time than initially expected. I will, of course, inform you once I have more information and would in any event welcome that we discuss the topic during our upcoming meeting.
Yours sincerely,
Antonio Campinos
Reference: sc19100cl -0.3.1/1.3.1 Date: 24.07.2019
European Patent Office | 80298 MUNICH | GERMANY
Mr António Campinos President of the EPO ISAR – Room 1081
Transparency of duty allowances and appointing procedures
Dear Mr President,
Independence requires accountability, and accountability requires transparency. Transparency therefore makes a claim of independence more credible. This is why your joint May 2019 submission to the Budget and Finance Committee (BFC) on the “Workload of the Board of Auditors and related duty allowance” (CA/F 8/19) was much appreciated by the Central Staff Committee (CSC).
In this document you provided details of the workload and paid duty allowance of the members of the Board of Auditors, emphasising both the importance of their tasks as well as their independent status. The BFC endorsed your recommendation that this important document be publicly available.
However, for other independent committees who play an important role in the Office, namely the Appeals Committee (ApC) and the Disciplinary Committee (DC), the same level of transparency does not currently apply. Indeed, the duty allowances of the Chair and Vice-Chairs of the ApC and DC are not yet clearly defined in the Service Regulations.
As the independence of these committees is of utmost importance, the CSC hereby requests that said duty allowances also be a matter of public record.
The CSC is furthermore of the opinion that a redesign of the appointment process for the Chairs, Alternate Chairs and Vice-Chairs of the ApC and DC is needed, so that the appointments are made with the assent of the CSC.
We remain at your disposal for further discussion of this important topic.
Sincerely yours,
Joachim Michels Chairman of the Central Staff Committee
Mr Joachim Michels Chairman Central Staff Committee
Dear Mr Chair,
Reference is made to your letter dated 24 July 2019 in which you expressed requests concerning the duty allowances and appointing procedures of the Chairs, Alternate Chair and Vice-Chairs of the Appeals Committee and Disciplinary Committee.
First, I am glad to inform you that, in accordance with your first request and as jointly agreed with the Chairs, Alternate Chair and Vice-Chairs of both Committees, the rates of duty allowances of the latter will be made public. Hence, said rates will be subject to a publication on the intranet page dedicated to Social Dialogue in the upcoming days.
I have also taken note of your request to "redesign" the procedures of appointment of the Chairs, Vice-Chairs and Alternate Chair. I would however like to emphasise that the current external Chairs have been appointed in accordance with the applicable provisions as recently adopted by the Administrative Council in June 2017. Nonetheless, in the spirit of openness and co-operation, I propose to keep you informed throughout the process with regard to the next round of appointments in 2020. The CSC will thus receive updates on the selection procedure, including advance information on the names of the considered appointees prior to public announcement.
I am confident that this will address your concerns.
Yours sincerely,
Antonio Campinos
Reference:re20081cl-0.3.1/5.2 Date: 07.05.2020
European Patent Office | 80298 MUNICH | GERMANY
Mr António Campinos President of the EPO
ISAR - R.1081
Appeals Committee – Your letter of 22 April 2020
Dear Mr President,
The functioning of the Appeals Committee (ApC) has been a recurring topic in our discussions, both orally and in writing. In your recent letter of 22 April 2020, you mentioned the necessity of discussions with all stakeholders before submitting proposals to the Administrative Council. We share the opinion that a discussion with the Central Staff Committee is both necessary and urgent.
We would like to re-iterate our understanding of the role of the ApC. While fully supporting the idea of a change of culture from litigation to dialogue in the EPO, we believe that a properly functioning ApC is indispensable for the smooth running of the Office and – as confirmed by the ILOAT – an important element of the judicial system as a whole. Properly functioning means that the ApC can deliver opinions in short time and in a neutral manner.
The opinions should reflect basic principles of law and the case law of the Tribunal. Well-founded and clearly elaborated opinions allow the President to make decisions following the (unanimous) opinions of the ApC. This gives staff members confidence in the ApC. As a consequence, conflicts are more often than not solved internally and without subsequent escalation to the ILOAT. It is unfortunate that many appellants currently perceive the ApC as being just an intermediate step which is necessary before they can lodge a complaint in Geneva.
Five elements are key for the neutrality and good functioning of the ApC:
- The nominations of the Chair and the Vice-Chairs of the ApC should be based on mutual agreement between the President and the Central Staff Committee and should respect diversity; - All staff members should be eligible to function as members of the ApC; - The independence of the members should be protected by the Service Regulations; - The procedure before the ApC should be guided at all stages by the principles of fairness and equal treatment. Proper fact finding and the right to be heard are mandatory principles, in line with the case law of the Tribunal; - Members of the ApC should be given enough time in order to perform their duties properly.
The swift delivery of opinions can be achieved by adequate staffing of the Secretariat of the ApC.
We are ready to embark immediately into discussions with you. A small working group with motivated members from both sides would be appreciated. We therefore nominate Frédérique Chambonnet and Michael Sampels (alternate: Thomas Franchitti) from our side, and look forward to being invited by you soon to a kick-off meeting.
Yours sincerely,
Joachim Michels Chairman of the Central Staff Committee
cc.: Ms Nellie Simon; Vice-President DG4 Mr Christoph Ernst; Vice-President DG5 Ms Karin Seegert; Chief of Staff