European Patent Office (EPO) Series: Legal Concerns and Suspicions of Irregularities
Previous Parts:
Part 35
The "unstoppable rise" of João Negrão at EUIPO – from Director
of International Cooperation and Legal Affairs in 2011 to President
of the EUIPO Boards of Appeal in 2020 and culminating in his
appointment as Executive Director in 2023 – has been dogged by
controversy. The manner in which the internal selection procedures
were conducted gave rise to many questions about his impressive
"career progression" which remain unanswered.
In the last part we saw how João Negrão's appointment as President of the EUIPO Boards of Appeal in 2020 was greeted with jubilation by his sponsors in the Portuguese political establishment. However, not everybody else was happy about the manner in which the selection procedure had been conducted.
Despite the mantle of secrecy surrounding the procedure it emerged that there had been "17 candidates from 8 Member States" and that Negrão had somehow managed to end up as the sole name on the shortlist drawn up by the EUIPO Management Board for submission to the Council of Ministers.
This is eerily reminiscent of the selection procedure which led to the appointment of Negrão's Portuguese compatriot António Campinos as OHIM President in 2010. We recall that on that occasion there were reportedly at least 19 applications for the position of OHIM President which the Administrative Board mysteriously managed to reduce to a "shortlist of one" after a single round of "eliminatory voting".
There is, however, one significant difference between the 2010 selection procedure involving Campinos and the 2020 procedure involving Negrão. The 2020 selection procedure was conducted with significantly more "confidentiality" – in other words, a great deal more secrecy and even less transparency – than the 2010 procedure.
For some reason which remains unclear, at its 46th Meeting on 19th November 2013, the OHIM Administrative Board under the chairmanship of the Hungarian delegate Mihály Zoltán Ficsor (now Principal Director for Legal Affairs at the EPO) started to adopt a practice of classifying more and more agenda items as "confidential".
After that point in time the categorisation "Confidential agenda item" appears with increasing frequency in the official summary of decisions published by the Board after each meeting. This categorisation was applied in particular to decisions concerning selection procedures for senior managerial positions.
This practice, which was initiated under Ficsor's chairmanship in 2013, has been continued to the present day by the EUIPO Management Board (the successor to the OHIM Administrative Board following the 2016 rebranding exercise).
In the case of the 2020 selection procedure, the relevant document is MB/20/S09/1.1/EN(O) – the "Summary of the non-confidential decisions taken by the Management Board" at its 9th Meeting which took place in Alicante on 3rd June 2020. This document lists nine items MB-20-12 to MB-20-20, each of which is categorised as a "Confidential agenda item".
Source: 2020.06.03 - EUIPO MB9 - Summary
What this means in plain English is that the Management Board effectively suppressed the public release of any information relating to the 2020 selection procedure which resulted in Negrão's appointment as President of the Boards of Appeal.
The items MB-20-12 to MB-20-20 listed in the official summary
issued by the EUIPO Management Board following its 9th
Meeting on 3rd June 2020 are all categorised as
"confidential".
We recall that back in 2010 the OHIM Administrative Board did not attempt to conceal the fact that it had drawn up a "shortlist of one" whereas a decade later in 2020 it seemed to be doing its best to ensure that all relevant details of the selection procedure remained firmly under wraps and behind closed doors.
When official bodies start behaving in such a secretive manner it is generally a sign that they have something to hide. As we shall see in due course, when it comes to senior managerial appointments at the EUIPO such suspicions appear to be entirely justified.
In an earlier part of this series we mentioned that an article published by World Trademark Review in April 2010 expressed reservations about the deployment of a "shortlist of one" in the selection procedure which led to the appointment of António Campinos as OHIM President. But nobody seemed to be interested in pursuing the matter any further at the time and there was no discernible political fallout from the affair. In the end, Campinos was left in peace and allowed to get on with his new job in Alicante.
However, in 2020 things were somewhat different. Although Negrão's appointment as President of the EUIPO Boards of Appeal does not seem to have been subject to any negative press coverage at the time, the manner in which the selection procedure had been conducted did raise some eyebrows in EU political circles outside of the EUIPO "insider" bubble.
As a matter of fact, some MEPs were sufficiently concerned to commission an opinion from the European Parliament’s Legal Service about the use of the "single candidate shortlist" in selection procedures for senior EUIPO management positions where the final decision of appointment lay with the Council of Ministers.
The Legal Service found that the EUIPO Management Board’s ability to propose a single candidate was not in itself a violation of EU law and that it could be justified in certain circumstances. Nevertheless, the practice did raise legal concerns insofar as it effectively limited the Council’s decision-making power. The nomination of a single candidate by the Board was considered to undermine the Council's statutory right of choice and violate the principle of genuine competition enshrined in the EU Trademark Regulation which provides the statutory basis for the EUIPO.
As far as can be determined, the legal opinion itself is not publicly accessible but its contents were referred to in a written question concerning the 2023 selection procedure for the position of EUIPO Executive Director which was submitted to the European Commission by the Irish MEP Seán Kelly on 5th June 2023.
Source: E-9-2023-001698 QUESTION EN
In his written question Kelly asked the Commission how it intended "to supervise the ongoing selection process for a new EUIPO Executive Director and ensure that it is open, transparent, fair …". He also asked the Commission whether it agreed with the 2020 opinion of Parliament’s Legal Service that "as part of the process, the EUIPO Management Board should propose more than one candidate to the Council in order not to limit the Council’s decision-making power".
The answer from Thierry Breton on behalf of the European Commission dated 14th August 2023 is full of the typically bland and vacuous official humbug which the Commission routinely serves up in response to such queries.
Source: E-9-2023-001698 ANSWER EN
Breton's answer begins by referring to "the role of the Commission in the ongoing selection process", in particular its two representatives on the EUIPO Management Board and its observer’s seat in the EUIPO Preparatory Subcommittee – all of which, according to Breton, contributed "to ensuring an open and transparent selection procedure". The answer concludes by noting that: "In line with Article 158(2) of the EUTMR, the Management Board had pre-selected a list of more than one candidate in its meeting of 6 June 2023."
Source: 2023.06.06 - EUIPO MB16 Summary
On 5th May 2023, Seán Kelly MEP (left) submitted a
written question to the European Commission about the selection
procedure for the post of EUIPO Executive Director. The "answer"
from Thierry Breton (right) on behalf of the European Commission
dated 14th August 2023 was full of the typically bland
and vacuous official humbug which the Commission routinely serves
up in response to such queries.
Source: 2023-06-05 - MIP - Irish MEP - EUIPO race
Breton's claims about "an open and transparent selection procedure" deserve to be taken with a generous pinch of salt. The first thing to be noted here is that – following the same practice adopted in the case of the earlier 2020 selection procedure – the Management Board effectively suppressed the public release of all information concerning the 2023 selection procedure.
This can be confirmed by consulting MB/23/S16/1.1/EN(O) – the "Summary of the non-confidential decisions taken by the Management Board" at its 16th Meeting which took place in Alicante on 6th June 2023. That document lists ten items MB-23-06 to MB-23-15 all of which are categorised as "Confidential agenda item".
In other words, the Management Board once again effectively suppressed the public release of any official information relating to the selection procedure. So much for openness and transparency...
Breton's observation that "the Management Board had pre-selected a list of more than one candidate in its meeting of 6 June 2023" is indeed factually correct. It is no secret that the shortlist in question had three names on it: João Negrão, Etienne Sanz de Acedo and Andrea di Carlo.
The three candidates in the 2023 EUIPO leadership race, from
left to right: João Negrão, Etienne Sanz de Acedo and Andrea di
Carlo. Thanks to intense lobbying by his compatriot, EPO President
António Campinos, Negrão emerged in the pole position at the top of
the shortlist which the EUIPO Management Board submitted to the
Council of Ministers.
However, as might be expected, Breton conspicuously failed to mention the "elephant in the room", namely the well-documented interference in the EUIPO election process by Negrão's compatriot, the EPO President António Campinos.
As we noted previously, this interference by Campinos led to a formal protest from the French government. It is also generally accepted that the lobbying efforts of Campinos in support of Negrão's candidacy helped the Portuguese candidate to emerge in the pole position at the top of the shortlist which the EUIPO Management Board submitted to the Council of Ministers.
There is a further aspect of João Negrão's disputed ascent to the top EUIPO position of Executive Director which gives additional cause for concern. This aspect involves suspicions that the selection procedures which contributed to his "career progression" at the agency were tainted by influence-peddling and cronyism.
These suspicions were articulated in an article entitled "Intellectual property: the European agency out of control" published by the French investigative outlet Medipart in January 2024.
The Mediapart article – which has already been cited in earlier parts of this series (e.g. here and here) – refers to two specific individuals, namely the former head of the Latvian IPO, Sandris Laganovskis, and the former head of the Polish IPO, Edyta Demby-Siwek.
Did Sandris Laganovskis (Latvia) and Edyta Demby-Siwek (Poland)
obtain their positions in EUIPO's senior management team as a
payoff for supporting the "career progression" of João
Negrão?
The case of Sandris Laganovskis was already reported on by Techrights back in 2021 when it was speculated that he had been specifically recruited to replace Negrão as Director for International Cooperation at EUIPO's Department of International Cooperation and Legal Affairs.
Back in 2021 one small piece of the jigsaw puzzle was missing but this was subsequently filled in by Medipart which revealed that Negrão secured his post as President of the EUIPO Boards of Appeal in 2020 thanks to the support of a Management Board selection committee one of whose members was none other than Sandris Laganovskis!
The case of Edyta Demby-Siwek was also covered by Techrights in a series about the Polish UPRP which was published last year.
The aforementioned Medipart article likewise provides some useful additional pieces of information concerning Demby-Siwek. From the article it emerges that the director of the Polish UPRP was one of a select group of Administrative Council delegates who attended a "convivial meal" organised by Campinos at EPO headquarters in Munich in October 2022 as part of his lobbying efforts in support of Negrão's candidacy. According to Medipart, the Polish delegation subsequently voted for Negrão.
Medipart also revealed that as early as March 2023 e-mail correspondence from an attaché at the Polish Embassy in the Netherlands indicated that Demby-Siwek had been lined up for an appointment as Deputy Executive Director of the EUIPO. The date of that e-mail correspondence is noteworthy because the official vacancy notice for the position in question was not published until 28th November 2023 and the deadline for applications was 9th January 2024.
Source: 2023.11.28 - EUIPO Deputy Executive Director - Vacancy notice
All of the foregoing may of course be purely coincidental but, all things considered, such "coincidences" seem quite remarkable.
Despite of all the frantic official hand-waving and strenuous denials of any irregularities in the selection procedures, suspicions that Laganovskis and Demby-Siwek may have obtained their positions in EUIPO's senior management team as a payoff for supporting the "career progression" of João Negrão continue to linger in the air.
Indeed, it could be said that the circumstances surrounding these appointments indicate the existence of a cosy symbiosis between EUIPO's senior management and the agency's governing body which is reminiscent of the notorious revolving door between the EPO's senior management and the Administrative Council.
We conclude this part by mentioning that, as reported by Medipart and later confirmed by Euronews in February 2024, the European Anti-Fraud Office OLAF received complaints relating to EUIPO which alleged amongst other things "frequent irregularities in the work of pre-selection committees, with a view to present sole candidates for selection, or to favour specific candidates".
Source: 2024.02.23 - Euronews - EUIPO OLAF Complaint
According to Euronews: "The complaints include criticism of frequent appointments of management staff of EUIPO from the agency's Managing Board and Budget Committee (MBBC), and allegations that staff involved in appointment processes were severely influenced."
It is not known at this stage whether the complaints submitted to OLAF specifically mention the cases of Laganovskis and Demby-Siwek. Nevertheless, it is noted here in passing that prior to his EUIPO appointment Laganovskis held the position of Chairman of the EUIPO Budget Committee.
In the next part, our focus will shift away from Alicante and back towards Munich as we take a look at how Campinos was lined up as Battistelli's anointed successor for the top job at the EPO in 2017. █