Jesper Kongstad. Photo from the Nordic Patent Institute.
KONGSTAD was the subject of our coverage before. We mentioned him in previous parts of exclusive EPO scandal stories. Mr Jesper Kongstad had already been mentioned in several past posts because he's suspected to have played a role in an inadequate appointment, potentially motivated by nepotism. The suspicion is not a one-man whisper campaign. Staff at the EPO too seems to be concerned. The EPO is not new to scandals.
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, the Managing Director of Transparency International (TI), which calls itself a "global coalition against corruption".
EPO & Transparency
Summary
Transparency International (TI) critically examines how national political systems all around the world address corruption risks and foster integrity. They publish and encourage best practice in integrity and expose the effects of conflicts of interest and lack of transparency. Recently, TI also assessed how the EU institutions deal with ethics, how they ensure transparency and accountability, and how they ultimately prevent corruption. The Central Staff Committee suggested to the EPO Administrative Council that a similar study be done for the EPO. TI has signaled its interest in the matter. But until now the Council cloaks itself in silence.
The governance of the EPO
The EPO still has the governance system that it was created with. Oversight is in the hands of the Administrative Council. The Heads of the national delegations in the Administrative Council are almost without exception heads of national patent offices. The delegates are in a situation of conflict of interests since the EPO is at the same time the main competitor and a major source of income for the national patent offices. The meetings of the Administrative Council and the majority of its documents are not open to the public. Maybe significantly the Office has started to publish the salaries of its staff, but the salary and benefits of the President are not disclosed, not even to the Administrative Council.
The European Patent Organisation sets its own financial regulations, independent from national or European law1. Adherence to these rules is controlled by a Board of Auditors of consisting of three individuals who are appointed by and reporting to the Administrative Council, on 5-year renewable contracts. Their reports (CA/20/yy) tend to be rather mild and the (few) critical comments are routinely ignored by the Office. The most recently appointed auditor is a close co-worker of Mr Battistelli from his time in the French patent office. Maybe not surprisingly, the most recent Audit report (CA/20/14) is even milder than usual. An attempt by the Brimelow administration to strengthen the audit system through the creation of an Audit Committee2 was supported by Mr Battistelli in his function of Chairman of the Council, but annulled by him as soon as he became President of the Office3. Note that the Organisation’s immunity blocks third parties from effectively challenging its financial decisions. The Staff Committee challenged the decision of the Office to use a direct placement procedure in favour of an external consultancy. The Board of Auditors even agreed that an invitation to tender would have been justified. Even if clearly justified, the complaint was recently dismissed by ILO-AT as irreceivable4.
______ 1 Article 50 EPC 2 Bossung, Otto. "The Return of European Patent Law in the European Union". IIC 27 (3/1996). Retrieved June 30, 2012. 3 CA/140/08 €«Audit Committee: possible models€», resp. CA/55/11, €«Disbanding the audit committee€»
Immunity, or impunity?
The lack of transparency and the lack of truly independent financial and political control would seem to pose a serious risk for the integrity of the EPO and consequently for the European patent system. This is particularly worrying at a time that the EPO is to be given the additional responsibilities for the Unitary Patent. The staff representation has repeatedly requested a discussion on, and a modernisation of, the governance of the Organisation5, thus far to no avail.
Transparency International
Transparency International is a global civil society organization that aims at stopping corruption and promoting transparency, accountability and integrity at all levels and across all sectors of society6. TI has developed a methodology to assess how well national governments ensure the integrity of their institutions. The beauty of the methodology is that it is systemic. It does not rely on leaks and/or scandals but assesses whether the necessary legislation and mechanisms are in place to prevent, detect and combat corruption, and abuse of power. They check how well these mechanisms function in practice. An adapted version of this methodology has been used to assess various EU institutions. For the EU institutions Transparency International found that the EU has done a lot to put their house in order in recent years, but that strong foundations are being undermined by complex rules, complacency, and a lack of follow-up7.
What is the Council waiting for?
With a letter dated 6 June 20148 the Central Staff Committee (CSC) again raised the issue with the Chairman of the Administrative Council. The CSC drew the attention of the Council to the report of Transparency International on the EU Institutions and suggested that a similar study be done for the EPO. We note that the EU institutions cooperated with the Transparency study. Transparency International has reacted to the letter of the CSC9. It has offered its support and experience in promoting a culture of integrity and good governance in the EPOrg. Just recently Transparency International sent a reminder of its letter to the Council.
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_____ 4 ILO-AT 3343 5 CA/93/07 €«Governance of the EPO: a staff perspective€», 6 http://www.transparency.org/whatwedo?gclid=CJWu5eC5tsACFa7KtAodXRoA2A 7 http://www.transparencyinternational.eu/wp-content/uploads/2014/04/EUIS_press_release.pdf 8 http://www.epostaff.org/archive/sc14139cl.pdf 9 see annex
"For the time being the situation is clear; an external audit is being ignored by the Administrative Council."Curiously enough, as also reported by WIPR just a few weeks later, there was a "[m]ysterious departure for EPO communications chief" (i.e. PR). "According to sources," says the article, "a recently uncovered trademark application at the German Patent and Trademark Office in Schröder’s name bearing the words “f**k the US” may have been a contributing factor."
A source tells us a slightly different story however. Some believe that Battistelli is planning to maneuver another French "crony" (Vincent Bénard, formerly of Airbus) into this key PR position, meaning that the previous occupant of the position, Oswald Schroeder, had to be "eliminated". Whether he was set up or fell into a trap due to his own stupidity one cannot say for sure. "Oswald Schröder left “by mutual consent” on October 10," says the article. It seems like he got pushed out. One just need to put some of the details found within the article together.
Battistelli's regime can now tighten its grip and surround itself with more cronies that can perhaps push out challenges, such as Transparency International's. ⬆