02.12.22

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The EPO’s Overseer/Overseen Collusion — Part XLIX: The Rise and Fall of Battistelli’s “Social Democracy”…

Posted in Courtroom, Europe, Law, Patents at 1:07 am by Dr. Roy Schestowitz

Series parts:

  1. The EPO’s Overseer/Overseen Collusion — Part I: Let the Sunshine In!
  2. The EPO’s Overseer/Overseen Collusion — Part II: A “Unanimous” Endorsement?
  3. The EPO’s Overseer/Overseen Collusion — Part III: Three Missing Votes
  4. The EPO’s Overseer/Overseen Collusion — Part IV: The Founding States
  5. The EPO’s Overseer/Overseen Collusion — Part V: Germany Says “Ja”
  6. The EPO’s Overseer/Overseen Collusion — Part VI: A Distinct Lack of Dutch Courage
  7. The EPO’s Overseer/Overseen Collusion — Part VII: Luxembourgish Laxity
  8. The EPO’s Overseer/Overseen Collusion — Part VIII: Perfidious Albion and Pusillanimous Hibernia
  9. The EPO’s Overseer/Overseen Collusion — Part IX: More Holes Than Swiss Cheese
  10. The EPO’s Overseer/Overseen Collusion — Part X: Introducing the Controversial Christian Bock
  11. The EPO’s Overseer/Overseen Collusion — Part XI: “General Bock” – Battistelli’s Swiss Apprentice?
  12. The EPO’s Overseer/Overseen Collusion — Part XII: The French Connection
  13. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli’s Iberian Facilitators – Spain
  14. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli’s Iberian Facilitators – Portugal
  15. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…
  16. The EPO’s Overseer/Overseen Collusion — Part XVI: The Demise of the Austrian Double-Dipper
  17. The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc
  18. The EPO’s Overseer/Overseen Collusion — Part XVIII: Helsinki’s Accord
  19. The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States
  20. The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group
  21. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”
  22. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League – North Macedonia and Albania
  23. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League – Bulgaria
  24. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League – Romania
  25. The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League – Fresh Blood or Same Old, Same Old?
  26. The EPO’s Overseer/Overseen Collusion — Part XXVI: A Trojan Horse on the Budget and Finance Committee
  27. The EPO’s Overseer/Overseen Collusion — Part XXVII: Cypriot Complicity
  28. The EPO’s Overseer/Overseen Collusion — Part XXVIII: Benoît and António’s Loyal “Habibi”
  29. The EPO’s Overseer/Overseen Collusion — Part IXXX: The EPOnian Micro-States – Monaco and Malta
  30. The EPO’s Overseer/Overseen Collusion — Part XXX: San Marino and the Perfidious Betrayal of Liberty
  31. The EPO’s Overseer/Overseen Collusion — Part XXXI: The Abstentionists
  32. The EPO’s Overseer/Overseen Collusion — Part XXXII: “Plucky Little Belgium”?
  33. The EPO’s Overseer/Overseen Collusion — Part XXXIII: Swedish Scepticism
  34. The EPO’s Overseer/Overseen Collusion — Part XXXIV: An “Extremely Dubious” Proposal
  35. The EPO’s Overseer/Overseen Collusion — Part XXXV: Slovakian Scruples
  36. The EPO’s Overseer/Overseen Collusion — Part XXXVI: Serbian Sour Grapes
  37. The EPO’s Overseer/Overseen Collusion — Part XXXVII: Stubbornly Independent Slovenia
  38. The EPO’s Overseer/Overseen Collusion — Part XXXVIII: Ensnared in the Tentacles of the SAZAS Octopus
  39. The EPO’s Overseer/Overseen Collusion — Part XXXIX: On the Slippery Slope to Capture
  40. The EPO’s Overseer/Overseen Collusion — Part XXXX: The Idiosyncratic Italians
  41. The EPO’s Overseer/Overseen Collusion — Part XXXXI: Public Service or Self-Service?
  42. The EPO’s Overseer/Overseen Collusion — Part XXXXII: A Parcel of Rogues?
  43. The EPO’s Overseer/Overseen Collusion — Part XXXXIII: A Legal No-Man’s Land
  44. The EPO’s Overseer/Overseen Collusion — Part XXXXIV: Immunity = Impunity?
  45. The EPO’s Overseer/Overseen Collusion — Part XXXXV: In the Shadow of “Waite and Kennedy”
  46. The EPO’s Overseer/Overseen Collusion — Part XXXXVI: An Erosion of Fundamental Rights Protection?
  47. The EPO’s Overseer/Overseen Collusion — Part XLVII: Institutionalised Injustice at the EPO?
  48. The EPO’s Overseer/Overseen Collusion — Part XLVIII: The Unkindest Cut of All
  49. YOU ARE HERE ☞ The Rise and Fall of Battistelli’s “Social Democracy”…

A sick rose
The “sick rose” of EPOnian “Social Democracy” finally wilted beyond recovery following delivery of ILOAT Judgment No. 4482 on 27 January 2022.

Summary: Son-of-a-socialist António Campinos, who turned his back on social causes and instead became a vassal of that multinational litigation/monopolies cabal, has a chaotic situation in his hands, with impending industrial action and a crisis of legitimacy for the EPO’s overseeing body

In the last part we saw how a former judge of the European Court of Human Rights, Sir Paul Mahoney, played a key role in suppressing the fundamental rights of EPO staff when he endorsed a majority opinion of the appeals committee dismissing a challenge to Battistelli’s "Strike Regulations" in May 2019.

But Mahoney’s complicity in the rubber-stamping of the controversial “Strike Regulations” was not his only perfidious betrayal of EPO staff.

In March 2020, the appeals committee which he chaired also gave a clean bill of legal health to another liberticidal “reform” promoted by Team Battistelli, namely the bizarrely mislabelled "Social Democracy" project.

This contentious “reform” of EPO staff representation was proposed to the Administrative Council by Battistelli in a document bearing the surreal Orwellian title of “Social democracy at the European Patent Office” (CA/4/14 of 10 March 2014 [PDF]).

According to Battistelli the purpose of this “reform” was to “fill a legal vacuum, adapt and modernise [the EPO] social framework and provide improvements for a more efficient management of the Office.

Battistelli’s proposal was adopted by the Administrative Council as decision CA/D 2/14 on 28 March 2014. [PDF]

As the official record shows, CA/D 2/14 [PDF] was yet another dubious proposal from Team Battistelli which was "unanimously approved" by the Administrative Council with only a handful of abstentions.

The record on Battistelli's 'Social Democracy' at EPO
The official record shows that Battistelli’s “Social Democracy” proposal was “unanimously approved” by the Council delegates in March 2014 with only a handful of abstentions.

The amendments to the EPO’s Service Regulations which were approved by CA/D 2/4 had a far-reaching impact on the prerogatives and functions of staff representatives and the electoral rights of every staff member.

Under the old provisions, EPO staff had the right to participate directly in the determination of the rules governing the election of local and central Staff Committee members. The election rules were adopted by a general assembly of permanent employees.

CA/D 2/14 unilaterally abrogated these provisions.

Under the new régime of “Social Democracy”, the President of the Office was granted the sole power to determine the rules governing the election of the Staff Committee. EPO employees were henceforth deprived of any say in the matter.

It took Mahoney’s appeals committee almost six years to issue an opinion on the legal challenges which EPO Staff had filed against Battistelli’s “Social Democracy”.

When the appeals committee finally issued its opinion on 5 March 2020, the majority of its members concluded that “no illegality was established”.

“It took Mahoney’s appeals committee almost six years to issue an opinion on the legal challenges which EPO Staff had filed against Battistelli’s “Social Democracy”.”However, the ILOAT took a significantly different view of the matter almost two years later, on 27 January 2022, when the Tribunal announced the judgments of its 133rd Session (held from 18 October to 23 November 2021).

Amongst these judgments was No. 4482 (local copy [PDF]) which ruled that Battistelli’s “Social Democracy” violated the fundamental right of EPO staff to freedom of association:

The regime in place before decision CA/D 2/14 for the conduct of elections respected the right of staff to freely associate and the new regime did not. The reason given in its pleas by the EPO for the material changes within that organisation in 2014 presently being discussed, does not withstand scrutiny.

In plain English this means that – unlike Mahoney and his appeals committee – the Tribunal had seen through the BS and legal sophistry peddled by Team Battistelli and it wasn’t amused.

ILOAT Judgment No. 4482 is noteworthy because it is the second time that the Tribunal has ruled that an EPO “reform” introduced by Team Battistelli breached the fundamental right of freedom of association.

Benoît Battistelli, Elodie Bergot, Željko Topić, and Raimund Lutz
ILOAT Judgment 4482 is noteworthy because it was the second time that the Tribunal had ruled that a “reform” introduced by Team Battistelli had breached the fundamental right of freedom of association.
Clockwise from top left: Office President Benoît Battistelli, Principal Director Elodie Bergot, Vice-Presidents Željko Topić and Raimund Lutz.

The judgment is also of significance because this time the Tribunal saw fit to strike down a decision of the Administrative Council.

“The judgment is also of significance because this time the Tribunal saw fit to strike down a decision of the Administrative Council.”In the earlier judgments of the 132nd session concerning the Strike Regulations, the Tribunal had contented itself with quashing “Circular No. 347″ which had been issued by Battistelli, and “which had the most immediate, adverse and far reaching effect on the complainants’ right to strike”.

On that occasion, the Tribunal stopped short of revoking the Administrative Council decision that had supposedly empowered Battistelli to issue the disputed Circular.

According to the three-judge panel dealing with the case in Judgment 4430: (local copy [PDF])

The position is not so clear in relation to [Administrative Council decision] CA/D 5/13 [...] While the Tribunal can examine the lawfulness of provisions of a general decision …, whether it has jurisdiction to set aside a provision of the Service Regulations is a significant legal question on which the Tribunal’s case law is unclear.

It should be resolved in an appropriate case by a plenary panel of the Tribunal constituted by seven judges, which is not presently possible.

During the subsequent 133rd Session, the Tribunal decided to grasp the nettle boldly and to resolve the “significant legal question” which it had identified in the earlier Judgment No. 4430.

For this purpose, the Tribunal assembled a plenary panel of seven judges who proceeded to annul the objectionable elements of Administrative Council decision CA/D 2/14.

The composition of the seven-member judicial panel which rendered this historic judgment was as follows:

• Michael F. Moore (Australia),
• Patrick Frydman (France),
• Hugh A. Rawlins (Saint Kitts & Nevis),
• Jacques Jamotte (Belgium),
• Clément Gascon (Canada),
• Rosanna De Nicoltis (Italy), and
• Hongyu Shen (China).

Michael F. Moore (Australia), Patrick Frydman (France), Hugh A. Rawlins (Saint Kitts & Nevis), Jacques Jamotte (Belgium), Clément Gascon (Canada), Rosanna De Nicoltis (Italy), and Hongyu Shen (China)
How many Judges does it take to overturn a decision of the EPO’s Administrative Council?
At the ILOAT, it seems that a plenary panel of seven judges is required…
Top row: Jacques Jamotte (no photo), Michael F. Moore (no photo) and Patrick Frydman.
Bottom row: Hugh A. Rawlins, Clément Gascon, Rosanna De Nicoltis and Hongyu Shen.

The judgment is worth reading in detail because it exposes the gravity of the unlawful interference in the fundamental rights of EPO staff caused by Battistelli’s “Social Democracy”.

There is a consistent line of case law of the Tribunal which makes clear, in a variety of ways, that organisations should not interfere in the affairs of a staff association or union … and the association or union must have the concomitant right to conduct its own affairs and regulate its own activities [...] It also includes the right to freely elect their own representatives. [...].

There are obvious reasons for this approach.

The role of staff associations or unions is to represent the interests of members primarily in dealing with their employing organisation on issues concerning the staff. Staff associations or unions should be able to do so unhindered or uninfluenced by the Administration of the employing organisation. Were it otherwise, the role would be compromised.

There are other less obvious reasons.

A staff association or union is likely to be more robust and thus more effective if the members perceive it to be independent and have confidence in it allied to a sense of ownership of it.

Any involvement by the employing organisation in its activities, including elections, would most likely affect that perception and diminish or dampen that confidence and sense of ownership.

While this latter reason should not be overstated, it nonetheless should be recognised [...]

It is also apparent from the judgment that the Tribunal took a dim view of the Administrative Council’s complicity in Battistelli’s outrageous assault on the fundamental rights of EPO staff.

“This case presents a situation where a remedy, which may intrude into the exercise of power by the Administrative Council, is appropriate to protect a fundamental right of a member of staff and, indeed, all members of staff which was a term of their appointment as officials of the EPO. The adoption of those parts of the new rules concerning elections by decision CA/D 2/14 entailed non-observance of that term of appointment.

There can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy.

It is recognised as a right by the Tribunal … It is a right recognised in the 1998 ILO Declaration on Fundamental Principles and Rights at Work, Article 2(a), as an obligation for all ILO Member States arising from the very fact of their membership in the ILO.

Freedom of association is a right recognised by the 1966 International Covenant on Civil and Political Rights, Article 22, and also by the 1966 International Covenant on Economic, Social and Cultural Rights, Article 8.

The Administrative Council of the EPO has itself recognised the importance of human rights when formulating the rights and obligations of staff. In a decision made at its 55th meeting in December 1994, which is reproduced before the text of the Service Regulations [...]

The Tribunal additionally noted that the Administrative Council’s endorsement of Battistelli’s “Social Democracy” was in “obvious and irreconcilable” contradiction to Article 30 of the EPO Service Regulations which expressly guarantees the right to “freedom of association”.

It seems quite extraordinary that Sir Paul Mahoney and his appeals committee managed to overlook all of this and failed to rebuke the Administrative Council for its complicity in breaches of fundamental rights at the EPO.

“At the 168th meeting of the Administrative Council held on October 2021, Sonya Anne Brander was appointed as the new chair of the EPO’s internal appeals committee.”Unfortunately, there isn’t much hope at this stage of finding out what Mahoney thinks about ILOAT Judgments Nos. 4430 and 4482 because he sailed off into the sunset towards the end of last year.

At the 168th meeting (warning: epo.org link) of the Administrative Council held on October 2021, Sonya Anne Brander was appointed as the new chair of the EPO’s internal appeals committee.

Brander has dual UK and Canadian citizenship and is a graduate of Dalhousie University in Halifax, Nova Scotia. Prior to her current EPO appointment, she worked for the World Health Organization (WHO) as Chair of the Global Board of Appeal, which is the WHO’s internal appeal body.

Sonya Brander
The new chair of the EPO’s internal appeals committee, Sonya Brander.

It remains to be seen whether or not Brander can make a more meaningful contribution to the restoration of justice and the rule of law at the EPO than her predecessor, Mahoney, who has been “weighed in the balance and found wanting”.

“It remains to be seen whether or not Brander can make a more meaningful contribution to the restoration of justice and the rule of law at the EPO than her predecessor, Mahoney, who has been “weighed in the balance and found wanting”.”The judgments of the 132nd and 133rd Sessions of the ILOAT confirm that Mahoney just wasn’t up to the job when it came to “speaking truth to power”.

He evidently saw it as his duty to tell the Administrative Council what it wanted to hear as opposed to what it needed to hear.

“In the final part of the present series, we shall see how Battistelli’s inglorious departure from the EPO in 2018 did not resolve the organisation’s governance crisis which continues to fester in the background as the 50th anniversary of the signing of the European Patent Convention approaches.”His term of office as head of the EPO’s internal appeals committee can only be judged as a miserable failure.

Above all else, it was irreparably blighted by his failure to take a principled stand against the “backsliding into totalitarianism” which took place at the EPO under Battistelli and his reluctance to confront the Administrative Council by taking it to task for its complicity in serious breaches of the fundamental rights of EPO Staff.

In the final part of the present series, we shall see how Battistelli’s inglorious departure from the EPO in 2018 did not resolve the organisation’s governance crisis which continues to fester in the background as the 50th anniversary of the signing of the European Patent Convention approaches.

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