European Patent Office (EPO) Series: The Solution of No Choice: A Shortlist of One
Previous Parts:
Part 33
The procedure which led to the appointment of António Campinos as President of the Alicante-based EU trademark agency OHIM relied on a "single candidate shortlist" to eliminate any potential rivals.
In the last part we saw how the head of the French INPI Benoît Battistelli had to submit to a complex and protracted election procedure before he was finally crowned as the Sun-King of EPOnia in March 2010. In contrast to Battistelli's uphill struggle at the EPO, his Portuguese protégé, António Campinos, had a much smoother ride when he secured his appointment as President of the Alicante-based EU trademark agency OHIM in June of the same year.
We already gave a summary account of the procedure leading to the OHIM appointment but this time round we want to take a closer look at the details to enable our readers to fully appreciate the tour de force which Campinos managed to pull off on that occasion.
Before diving into the details it seems like a useful exercise to review some relevant aspects of the governance structures of the OHIM (subsequently rebranded as EUIPO in 2016).
The executive director or "President" and other senior officials of OHIM/EUIPO are appointed by the Council of the European Union (also known informally as the "Council of Ministers"). The Council is a collegiate intergovernmental body composed of ministers from the governments of the EU's member states. The composition for any particular session will depend on the topics under consideration. When dealing with matters concerning the OHIM/EUIPO the competent ministers will normally be those with responsibility for the national "IP" offices of the member states.
Senior officials are appointed on the basis of a shortlist of candidates drawn up by the agency's governing body, the Management Board (formerly known as the Administrative Board prior to the 2016 "EUIPO" rebranding exercise) which plays a role in the agency's governance analogous to that of the EPO's Administrative Council.
However, there is one small but significant difference. At the OHIM/EUIPO the buck ultimately stops not at the Board (mainly composed of national civil servants) but rather at the Council of Ministers. In other words, at OHIM/EUIPO the decision-making entity responsible for the top appointments is a ministerial body (composed of elected representatives) rather than a quango of unelected civil servants.
Nevertheless, in the case of OHIM/EUIPO the Board exercises significant influence over these appointments insofar as it is responsible for making a pre-selection in the form of a shortlist of candidates on which the Council of Ministers then decides.
Indeed, as we will see in due course, back in 2010 Campinos and his amigos on the Administrative Board made use of a cunning procedural trick to usurp the decision-making power of the Council of Ministers.
Having explained the institutional framework governing the decision-making process, we can now move on to give a blow-by-blow account of the procedure which led to Campinos being appointed as OHIM President in 2010.
We begin by recalling that the term of office of the second OHIM President, the Dutchman Wubbo de Boer, was due to end in September 2010. The search for a successor to de Boer officially commenced at the 37th Meeting of the Administrative Board held on 4th and 5th May 2009 when it was decided to launch a selection procedure and publish a vacancy notice for the post of President and a number of other senior positions.
Source: 2009.05.4-5 - OHIM AB37
At its 37th Meeting held on 4th and 5th May 2009 the OHIM Management Board decided to launch a selection procedure and publish a vacancy notice for the post of President and a number of other senior positions.
The vacancy notice for the post of President was published in the EU's Official Journal on 1st October 2009 and the notice stipulated that the deadline for applications was 29th October 2009.
Source: 2009.10.01 - OHIM VACANCY NOTICE
At its 38th Meeting held on 17th November 2009, the Administrative Board decided on the composition of an "Advisory Committee for the Evaluation of Applications" for the posts of President of the Office and other senior positions (decision CA-09-17).
Source: 2009.11.17 - OHIM AB38
At its 39th Meeting held on 12th and 13th April 2010, the Administrative Board took a series of decisions concerning the applications for the post of President of the Office. It began by adopting the list of admissible applications (decision CA-10-06) and then proceeded to draw up "by one round of eliminatory votes" a shortlist of one candidate for the post (decision CA-10-07). This was followed by the adoption of the single candidate shortlist "by a majority of three-quarters" and a decision to submit it to the Council of the European Union (decision CA-10-08).
Source: 2020.04.12-13 OHIM AB39
The various decision documents referred to above – CA-09-17, CA-10-06, CA-10-07 and CA-10-08 – are likely to contain further information about the procedure, in particular the composition of the "Advisory Committee for the Evaluation of Applications" (CA-09-17). These documents are not currently accessible online. It is possible that they could be obtained from the EUIPO via a "freedom of information" request but they are not necessary to establish the relevant details of how the procedure was conducted. For this purpose the "Summary of the Decisions" taken at the 39th Meeting of the Administrative Board provides more than enough information.
At its 39th Meeting held on 12th and 13th April 2010 the OHIM Management Board drew up and adopted a shortlist of one candidate for submission to the Council of the European Union.
The decisions taken at the 39th Meeting were evidently adopted on 12th April 2010 because on the very same day a posting appeared on the IPKat website under the title "Breaking news: OHIM Board decision on Top Dogs".
The IPKat posting made reference to the following announcement which had been published on the OHIM website:
"The Administrative Board has prepared a list with a single candidate (Mr Campinos) to be appointed by the Council as President of OHIM. [...]"
The posting also mentioned in passing that "Antonio is currently Chairperson of the Administrative Board […]" but no attempt was made to explore this interesting "coincidence" any further.
On 13th April 2010, World Trademark Review published an article entitled "OHIM's perplexing management strikes again, denies Council a voice over President".
Source: 2010.04.13 - WTR - OHIM's perplexing management
This article which reported on the OHIM announcement in a somewhat more critical tone is behind a paywall but the gist of it can be gleaned from the headnote which is on open access:
"The race for the new President of OHIM seems all but over. Yesterday's surprise announcement means that António Campinos has won so much support from OHIM's Administrative Board that only his name will be forwarded for consideration by the European Council. OHIM's rules have created a potentially sticky situation as they have led to the Board giving the Council no choice: it must appoint Campinos or no one."
An article published by World Trademark Review on 13th April 2020 claimed that the OHIM Management Board had denied the Council a voice over the appointment of the President.
Some additional details can be found in an article published by Managing Intellectual Property on 30th April 2010 "OHIM presidential candidate emerges".
"Although OHIM did not publish the names of the candidates for the three posts, Managing IP understands that there were at least 19 applications for the post of president […]".
Source: 2010.04.30 - MIP - OHIM presidential candidate
When the dots are joined the following picture emerges:
- At least 19 applications were received for the post of OHIM President.
- The Administrative Board – chaired by António Campinos – was tasked with drawing up a shortlist of candidates for submission to the Council of the European Union.
- Following "one round of eliminatory votes", the Administrative Board drew up a shortlist which contained a single name.
- The name on the list was none other than that of the Board's chairman: António Campinos.
We will leave our readers to draw their own conclusions about this textbook example of "a non-competitive selection procedure".
As we shall see in the next part, the deployment of the "shortlist of one" by Campinos in his 2010 appointment procedure was regarded by OHIM insiders as such a masterstroke that it thereafter became established as the solution of choice – or perhaps more accurately, "the solution of no choice" – when it came to filling the top jobs in Alicante. █