10.11.21

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The 168th Meeting of the EPO Administrative Council as a Test of the EPO’s Oversight Mechanisms

Posted in Europe, Law, Patents at 5:04 pm by Dr. Roy Schestowitz

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EPO voting datasheet
Gallery of ‘rogues’ (2013) compared to 2021 as image | Complete HTML version of the same (the above image is not complete but merely a preview)

Summary: The Administrative Council of the European Patent Organisation is having its 168th meeting this Wednesday and we expect no expression of remorse for illegally crushing EPO staff (almost 7,000 individuals and their families) for nearly a decade; some of the culprits (10 of them to be precise) are still their nation’s public face

As the EPO‘s Administrative Council gets ready for its 168th meeting this Wednesday – 13 October 2021 – it seems like a good idea to compare the current composition of the Council to that during the 136th meeting in June 2013 when Benoît Battistelli‘s “Strike Regulations” were adopted.

Since then many of the heads of delegation have changed. However, ten delegations are still headed by the same person as in June 2013:

- Czech Republic: Josef KRATOCHVÍL
- Croatia: Ljiljana KUTEROVAC
- Iceland: Borghildur ERLINGSDÓTTIR
- Ireland: Gerard BARRETT
- Malta: Godwin WARR
- Monaco: Jean-Pierre SANTOS
- San Marino: Silvia ROSSI
- Turkey: Habip ASAN
- Belgium; Jérôme DEBRULLE
- Italy: Mauro MASI

“The current governance crisis at the EPO – triggered by the recent ILOAT judgments which struck down the “Strike Regulations” – shows how important it is to expose the workings of the Administrative Council to public scrutiny.”Two of those delegations – namely Belgium and Italy – abstained from endorsing Battistelli’s “Strike Regulations”. The other eight delegations voted in favour.

There are two further delegations where the previous head of delegation has been replaced by the person who was their deputy in June 2013.

- Finland: Antti RIIVARI (successor to Rauni HAGMAN)
- Estonia: Margus VIHER (successor to Matti PÄTS)

Both the Finnish and Estonian delegations voted in favour of Battistelli’s “Strike Regulations”.

The current governance crisis at the EPO – triggered by the recent ILOAT judgments which struck down the “Strike Regulations” – shows how important it is to expose the workings of the Administrative Council to public scrutiny.

“When exercising its legislative powers, the Council is supposed to respect the primary law of the EPC as well as international legal norms to which its contracting states subscribe.”The Administrative Council is the governing body of the organisation EPO which has been entrusted with a limited set of legislative powers. In particular, it can make amendments to the EPO’s internal employment law, codified in the “EPO Service Regulations”.

When exercising its legislative powers, the Council is supposed to respect the primary law of the EPC as well as international legal norms to which its contracting states subscribe.

However, in contrast to an elected parliamentary legislative body, the EPO’s Administrative Council is not subject to any meaningful form of public accountability if it should happen to abuse its legislative powers. It is only subject to very weak judicial oversight by the ILOAT.

As recently seen in the case of Battistelli’s “Strike Regulations”, it has taken eight years to strike down a flawed legislative measure which breached the fundamental rights of EPO staff.

It now remains to be seen how the Council in its current composition is going to react to the EPO’s governance crisis at its upcoming 168th meeting.

“It now remains to be seen how the Council in its current composition is going to react to the EPO’s governance crisis at its upcoming 168th meeting.”It can be safely assumed that Team Campinos – which appears to be in complete denial about the implications of the recent ILOAT judgments – is doing its best to feed the Council delegates a sugar-coated narrative, in the hope that they will fail to realise the seriousness of the situation.

A lot will depend on whether the Council delegates are capable of doing their own homework and thinking for themselves, or whether they just prefer to “go with the flow” and swallow the snake-oil being spoon-fed to them by António Campinos and his cronies.

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