The Administrative Tribunal at the International Labour Organisation (ILOAT) cannot stop corruption of this scale -- a corruption that's actively encouraged by lobbyists

Published a week ago; European Patent Office (EPO) staff has cautioned about this for many years already

Summary: Europe's second-largest institution (the one which grants monopolies to corporations from all around the world) is being assassinated and its staff is being cast aside, making way for people who just approve almost every request for monopoly; the International Labour Organisation isn't helping

THE notorious regime of Benoît Battistelli and António Campinos has just bragged about "unitary" European Patents (with illegal and unconstitutional "unitary" effect), but maybe that serves to distract/divert attention away from a growing crisis at the EPO, where neither laws nor skills exist anymore. They've driven away some of the best examiners, replacing some of them with grossly underpaid scabs, obviously in violation of the European Patent Convention (EPC). Today's EPO just a patent-granting factory. The rules or the guidelines mandate this. Examiners cannot follow the laws (EPC) and instead follow abusive line managers, who are the enablers of a corrupt regime. They even grant European software patents and they hope to have enough kangaroos for "judges", in effect bypassing national patent courts. It's illegal, but EU officials don't seem to mind; some key people in the European Commission actively participate in this agenda and they're close allies (accomplices) of Battistelli. It's no exaggeration to say that a lot of the EPO's resign of crime, long tolerated by the German government (and the Dutch government too engaged in passive corruption), has found its way into the EU. Those of us who love the EU are shocked by what's happening! Why is the EU doing this to itself? Even the EUIPO (EU agency) has just propelled a Battistelli/Campinos associate to the very top. What will come next? One can only dread the fate of the EU.

"The "NO Career System" was in effect upheld by inaction."Either way, over in Geneva (not EU) there was an important development some weeks ago. We had alluded to it for 3 weeks prior but waited to hear the interpretation from the staff representatives, who understand these issues very well.

Some days ago the staff was finally informed about the outcome. The "NO Career System" was in effect upheld by inaction. Here is what staff was told by the Central Staff Committee:

ILOAT Judgments on the EPO Career System: Complaints dismissed

Dear Colleagues,

On 7 July 2023, the Tribunal delivered three judgments 4710, 4711 and 4712 dismissing complaints against the EPO career system (CA/D 10/14).

In its public delivery, the Tribunal stressed that the abolition of seniority step advancement does not breach acquired rights “as the former salary is preserved and future step advancements are not precluded”. The transitional measures included in the reform were found to “fall within the discretion of the Organisation, do not appear unreasonable and cannot be annulled by the Tribunal”. It considers that “it is not in the Tribunals’ purview to impose different transitional measures.“

The Tribunal recalled that “an Organisation has wide discretion when altering salary structures and grading systems and classifying officials individually”.

Senior management who tested the limits of Employment Law may be satisfied with the Tribunal’s ruling. However, the EPO career system has shown to negatively affect the engagement of staff and the quality of our work – and thereby the EPO’s only task to grant legally sound patents. It remains the worst career system among International Organisations.

The Tribunal has now ruined the hopes of EPO staff who were still looking forward to judgements restoring their career expectations. The Tribunal apparently intends to limit its review to the implementation of the EPO career system for specific individual cases. This situation will undoubtedly increase the disengagement of EPO staff and the EPO will continue to lose from it.

How does that benefit Europe? How does that benefit the EPO? Who does this benefit? The plotters of financialisation? There are several other schemes, notably BTT, which are an assault on the EPO.

Heck, EPO managers now heckle or blatantly defame their own staff! This cheesy video of theirs has been watched many thousands of times since (it's still very popular 2 week later; it's disturbing to EPO stakeholders too).

The full interpretation of the decision above is included below as HTML/plain text/GemText. It's 4 pages in length and dated 3 days ago:

Zentraler Personalausschuss Central Staff Committee Le Comité Central du Personnel

Munich, 21.07.2023 sc23101cp

ILOAT Judgments on the EPO Career System

Complaints dismissed

On 7 July 2023, the Tribunal delivered three judgments 4710¹, 4711² and 4712³ dismissing complaints⁴ against the EPO career system (CA/D 10/14). In its public delivery, the Tribunal stressed that the abolition of seniority step advancement does not breach acquired rights “as the former salary is preserved and future step advancements are not precluded”. The transitional measures included in the reform were found to “fall within the discretion of the Organisation, do not appear unreasonable and cannot be annulled by the Tribunal”. It considers that “it is not in the Tribunals’ purview to impose different transitional measures.“ The Tribunal recalled that “an Organisation has wide discretion when altering salary structures and grading systems and classifying officials individually”. This paper provides more details.

On the abolition of seniority based step advancement

Since the foundation of the European Patent Office in 1977, the Service Regulations⁵ guaranteed in Article 48 incremental steps every one or two years. The powers of the President are restricted in the EPC in Article 10(2)(g) pursuant to which the President “shall appoint the employees and decide on their promotion” only.

This career system ensured balance in rewarding performance without leaving out obligatory steps or essential parts of the examination for duly taking decisions pursuant to Article 97(1) and (2) EPC and was not called into question when the Contracting States revised the EPC in 2000.

Until recently, the EPO even advertised the seniority based step advancement on its website in the section dedicated to future job applicants and presented the Service Regulations as the “contract of employment” handed out at the time of recruitment.

In 2014, Mr Battistelli tabled his career reform CA/D 10/14 abolishing the seniority based step advancement by replacing Article 48 ServRegs as follows (emphasis added):

(1) Within the budgetary limits available, depending on performance and demonstration of the expected competencies, an advancement of up to two steps in grade may take place every year. (2) The appointing authority may lay down further terms and conditions for step advancement.

In practice, budgetary limits are decided by the Council each year and the President, in his Guidelines on Rewards, usually even further reduces the available budget by setting a quota on steps and promotions.

__________ ¹ Judgment 4710 rules on a complaint challenging the general decision CA/D 10/14 insofar it abolishes the seniority based step advancement; ² Judgment 4711 rules on a complaint challenging the implementing decisions to abolish the seniority based step advancement; ³ Judgment 4712 rules on a complaint challenging the transposition of the complainant into the new career system. ⁴ “Internal appeals against the NCS and the Abolition of the Invalidity Lump Sum”, CSC paper of 19 March 2021 (sc20136cp) ⁵ CA/D 9/77, page 60/196

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For this reason alone, the EPO career system is far from ensuring an objective reward of performance.

The complaints filed against the reform argued, inter alia, a breach of an acquired right and legitimate expectations.

On acquired rights and legitimate expectations According to the Tribunal’s case law (Judgment 4711, cons. 8, page 12/13), “the amendment of a provision governing an official’s situation to her or his detriment constitutes a breach of an acquired right only when such an amendment adversely affects the balance of contractual obligations, or alters fundamental terms of employment in consideration of which the official accepted an appointment, or which subsequently induced her or him to stay on”.

The Tribunal found that (Judgment 4711, cons. 8, page 14): − “the step advancement system was not suppressed, but only modified in its requirements”, − “the previous salary [...] has been preserved by the transitional provisions”, − ”the reason for the change was clearly explained by the Organisation and does not appear to be unreasonable”.

The Tribunal justified its consideration on acquired rights by referring to Judgment relating to changes of the career system at the CERN. However, the latter did not involve an abolition of seniority based step advancement. CERN is also of a different nature than the EPO. The EPO is a legal authority which should be protected from wrong incentives deviating it from its duties.

The Tribunal observed (Judgment 4711, cons. 9, page 10) that “it is not appropriate to raise an issue of legitimate expectations based on practice, as in the present case the previous automatic step advancement was not based on a practice, but instead on an express Service Regulation (former Article 48).” and hence discarded the arguments for the same reasons as those concerning the issue of acquired rights.

Finally, the Tribunal did not comment on the evidence that Article 10(2)(g) EPC only empowers the President to decide on promotions and not on steps.

On the link between appraisal and step advancement The Tribunal stated (Judgment 4711, cons. 9, page 15):

− “Opportunities for future step advancement are not precluded to staff members. Nor did the complainant prove that the new system makes it impossible or unreasonably difficult to achieve a step advancement based on appraisal of performance and on expected competencies. Even though the new system is not automatic, neither is it left to an unfettered discretion. Indeed, it is based on performance and expected competencies, which are to be assessed according to an objective appraisal system.” (emphasis added)

− “The reference made by Article 48(1) to performance and expected competencies as requirements for step advancements entails that the periodic step advancements must be based on a performance appraisal system, established prior to the periodic specific assessment for step advancement.” (emphasis added)

− “Article 48(2), in vesting the President with the power to establish terms and conditions, requires that the President clarify in advance, by means of implementing decisions, the criteria for assessing performance and expected competencies in order to achieve the step advancement.” (emphasis added)

The Tribunal did not comment on the evidence submitted by the complainant that the EPO repeatedly changed its performance appraisal system after the performance year, continues to publish its Guidelines on Rewards after the performance year and that these Guidelines on Rewards mention that “there is no

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automatic link between appraisal reports and the reward exercise”⁶. Finally, the Tribunal did also not comment on the reward history of the complainant and the financial prejudice caused despite satisfying performance.

On the budget and the quota on steps and promotions The Tribunal found that:

− “As to the budgetary constraint, it is a natural limit in any organisation, and it does not make the step advancement unforeseeable.” (Judgment 4711, cons. 9, page 15) − “[...] the President did not establish a financial ceiling by his own motion, as the budgetary limit was already provided for by Article 48(1). Article 48(2) of the Service Regulations is therefore consistent with Article 10(2)(a) of the EPC, pursuant to which the President “shall take all necessary steps to ensure the functioning of the European Patent Office”. (Judgment 4711, cons. 7, page 12)

On the transitional measures The complainant argued on the lack of transitional measures, based, inter alia, on the fact that in his case 8 out of 12 months of seniority in grade and step at the time of entry into force of the New Career System on 1 January 2015 had not been taken into account and that no measures had been taken to mitigate the negative consequences of the new career system,

The Tribunal stated that the transitional measures consisting in preserving the salary as “included in the reform of the career system fall within the discretion of the Organisation, do not appear unreasonable and cannot therefore be annulled by the Tribunal” and that “[i]n any case, it is not within the Tribunal’s purview to impose different transitional measures” (Judgment 4711, cons. 10, page 16).

On the transposition, the 50-Euro rule On 1 July 2015, all employees except former A4(2) employees earning more than G13(5) were transposed into the new grading structure G1-G17. Employees were notified of their new grade and step in a transposition letter.

CA/D 10/14, Article 56(3) defined the so-called “50-Euro rule”:

“An employee whose basic salary falls between two steps within the same grade in the new salary scales shall be assigned to the higher one, provided that the difference between the employee’s basic salary and the basic salary for the next immediate higher step is equal to or less than [...] 50 [euros]. In all other cases, the employee shall be assigned to the lower step.”

This resulted in most of the staff having been transposed to a grade and step with a lower basic salary. The rule led to an unfair situation, as in the new career system the complainant was aligned with more junior colleagues, in breach of the principle of equal treatment. In addition, a future step advancement would not result in a full step being rewarded but only a fraction of the step.

The Tribunal merely ruled that “[a]n organisation has wide discretion when altering salary structures and grading systems and classifying officials individually. Decisions on such matters are therefore subject to only limited review by the Tribunal [...]”. “The ‘50-Euro rule’ is neither illogical nor disproportionate, nor tainted by error of fact or law, nor by abuse of authority. It was not unrealistic or inapplicable, since, as a matter of fact, it appears from the record that it was applied to a number of cases. It was justified by the need to avoid that the transposition in the new career system would result in a generalized and automatic passage to a higher step” (Judgment , cons. 6)

__________ ⁶ see e.g. Guidelines for Reward 2023 section IV

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On the consultation The consultation process on the reform of the EPO career system took place in 2014. At the time, Mr Battistelli had unlawfully⁷ limited the right to strike, interfered with staff committee elections⁸ and banned staff committees and unions from sending mass-emails⁹ (a limitation still unlawfully maintained by Mr Campinos). The complainant’s arguments, which were supported by a large amount of evidence, included the following:

Mr Battistelli had appointed as members of the General Consultative Committee (GCC) his Vice-Presidents although the Service Regulations did not allow him to do so¹⁰. Vice-Presidents are already bound by agreements and decisions made by the President in the Management Advisory Committee (MAC) and hence find themselves in a conflict of interest and obviously lack impartiality. The two meetings of the General Consultative Committee (GCC) occurred in a tense climate. Mr Battistelli had posted two external security guards outside the room¹¹. Staff representatives had very limited possibilities to ask questions on the reform and their comments were automatically rejected by Mr Battistelli chairing the meeting. To one staff representative, Mr Battistelli said: “We don’t care about your opinion Mr Rosé” (“On s’en fout de votre opinion Mr Rosé”) and eventually threatened to expel him from the room. No expert was allowed to participate in the meeting of the GCC. The content of the reform, and especially the abolition of seniority-based step advancement and the quota-based reward exercise, had never been presented to the working groups. Mr Battistelli refused to place the counter-proposal of the Central Staff Committee on the agenda of the meeting and did not allow a discussion on it. It was by far, the worst consultation on a reform so fundamental for EPO staff.

The Tribunal did not comment on the large amount of evidence of bad faith shown by the Office during the consultation. Concerning the presence of Vice-Presidents both in the MAC and the GCC, the Tribunal ruled that even if a “draft reform” were presented to the MAC, a draft reform cannot be considered “a decision” or “an agreement” taken in the MAC and having binding effects on its member (Judgment 4711, cons. 5, page 8). It furthermore interpreted the EPO Service Regulations in a manner favourable to the Office, ignored the contradictions and rejected the argument of lack of impartiality (Judgment 4711, cons. 5, page 7). The mere existence of two working groups and a period of 1 month between two GCC meetings was found to be a “sufficient timespan to understand the meaning and the impact of the reform” (Judgment 4711, cons. 5, page 9). It concluded that there is also no obligation to table a counter-proposal from the staff representation in the GCC.

Conclusion Senior management who tested the limits of Employment Law may be satisfied with the Tribunal’s ruling. However, the EPO career system has shown to negatively affect the engagement of staff and the quality of our work – and thereby the EPO’s only task to grant legally sound patents¹². It remains the worst career system among International Organisations.

The Tribunal has now ruined the hopes of EPO staff who were still looking forward to judgements restoring their career expectations. The Tribunal apparently intends to limit its review to the implementation of the NCS for specific individual cases. This situation will undoubtedly increase the disengagement of EPO staff and the EPO will continue to lose from it.

The Central Staff Committee

__________ ⁷ see Judgments 4330-4335 ⁸ see Judgment 4482 ⁹ see Judgment 4551 ¹⁰ Article 1(5) ServRegs at the time, stated that “These Service Regulations shall apply to the President and vice-presidents employed on contract only in so far as there is express provision to that effect in their contract of employment.” therefore excluding VPs from being appointed to statutory bodies according to Articles 2(2) and hence to the GCC, Article 38(1) ¹¹ “Flash report on the GCC meeting of 19 November 2014”, CSC paper of 19 November 2014 (sc14287cp) ¹² Article 1 EPC

Notice how, in page 4, they note that Campinos continues not to obey the Tribunal's rulings, except when they suit him. What if his father knew he had raised an unlaw? The EPO is run by criminals (basically). This one is even shouting at staff, "I AM THE FUCKING PRESIDENT!" (worse than Battistelli)

Is this the best the EU has had to offer? ⬆