"In March 2013," told us a source, "EPO staff representatives submitted their concerns about Circular No. 342 to the Administrative Council in the document CA/33/13."
PDF], along with context in the PDF (scroll down to the bottom). Our emphasis is added in yellow to better suit quick readers:
CA/33/13 Orig.: en
Munich, 12.03.2013
SUBJECT: Investigations Guidelines of the EPO SUBMITTED BY: President of the European Patent Office ADDRESSEES: Administrative Council (for information)
SUMMARY
This document is submitted by the staff representatives via the President of the European Patent Office, in accordance with Article 9(2.2)(b) of the Administrative Council's rules of procedure (see CA/D 8/06).
Recommendation for publication: No, in view of possible ongoing legal disputes.
On 01.01.2013 the Office adopted Guidelines for the investigation of fraud, misconduct and harassment. These Investigative Guidelines give excessive powers to the President of the EPO and to the Investigation Unit. The Investigation Guidelines fail to provide staff with basic protection against self-incrimination, incrimination of family members and violation of private property, including the home. The level of evidence required, "on the balance of probabilities" (i.e. more likely than not) is insufficient in view of the potentially grave consequences, including dismissal.
It has to be clarified if the Investigation Guidelines are in contradiction with international law, namely the European Convention on Human Rights (ECHR) and the Universal Declaration of Human Rights.
TABLE OF CONTENTS
I. INTRODUCTION II. BACK-GROUND III. MAIN ISSUES A. NO LIMITATION TO THE PRESIDENT'S POWERS TO ORDER INVESTIGATION B. NO PROTECTION AGAINST SELF-INCRIMINATION OR INCRIMINATION OF FAMILY MEMBERS. C. NO PROTECTION OF PRIVATE PROPERTY D. INSUFFICIENT LEVEL OF PROOF E. LACK OF TRANSPARENCY F. NO LEGAL ASSISTANCE DURING HEARINGS IV. CONCLUSIONS AND REQUEST ANNEX 1 CIRCULAR NO.342 ("GUIDELINES FOR INVESTIGATIONS OF THE EPO")
I. INTRODUCTION
The Central Staff Committee welcomes the initiative of the President of the EPO to establish a Code of Conduct, a Staff Dignity Policy and Investigation Guidelines. Present Circulars 341 ("Formal procedure on staff dignity") and 342 ("Guidelines for Investigations of the EPO") fail, however, to provide the right protection needed and furthermore may infringe fundamental human rights. The present document concentrates on Circular 342 (investigation guidelines), but many of the shortcomings also apply to Circular 341.
II. BACK-GROUND
In all the EPO's Member States a clear separation of power between the legislative and the operative exist. Amongst the typical safe-guards that apply is, for example, the need for a search warrant for the police to be able to enter private property.
In the EPO no such separation of powers exists. The President is in the EPO head of Internal Audit who act as the "internal police". He is also the ultimate "judge", deciding whether disciplinary measures will be taken or not. In so deciding he is not obliged to follow the recommendations of the disciplinary boards. The strong powers of the President and the Investigative Unit that reports to him are not in any way balanced by safeguards for staff subject to or involved in investigative processes. The most serious flaws are listed below. More can be found in the opinion of the General Advisory Committee (Annex 1).
III. MAIN ISSUES
A. NO LIMITATION TO THE PRESIDENT'S POWERS TO ORDER INVESTIGATION
Circular 342 foresees two triggers for the investigative process:
a) an allegation of misconduct (Art. 9(2)), or b) a request by the President (Art. 9(3)).
Such a request by the President does not require a suspicion of misconduct or other justification. According to Arts. 10 and 11, allegations of misconduct are subject to initial review and preliminary evaluation before an investigative process is started. This is not the case for requests by the President. In fact, there is nothing in the Guidelines that would hinder the President of investigating whom he wants and how he wants, with or without informing the subject of the investigation.
B. NO PROTECTION AGAINST SELF-INCRIMINATION OR INCRIMINATION OF FAMILY MEMBERS.
Circular 342 does not foresee a right to remain silent. On the contrary: according to Art. 8(1) "All persons covered by ... this Circular shall be obliged to co-operate fully with the investigative unit". According to Art. 8(3) of the Guidelines as adopted, "failure to co-operate without legal justification" may constitute misconduct and hence expose the person concerned to disciplinary proceedings. Neither the Service Regulations nor the Guidelines provide any legal basis for non-co-operation: the duty to co-operate thus seems absolute.
C. NO PROTECTION OF PRIVATE PROPERTY
The Guidelines explicitly foresee search and seizure of all data and materials owned by the Office or present on its premises. There is no protection against access to private material (e.g. personal mobile phones) or confidential information (e.g. medical file, appeals procedures) other than, in some specific cases, prior authorisation of the Data Protection Office. Such prior authorisation can be dispensed with if this would risk to "jeopardise the investigation". The Circular expressly foresees access to evidence located outside the Office premises (Art. 16(9)). It is stipulated that for this the investigate unit "must abide by all the applicable provisions of local law or (sic!) obtain prior written permission from the individual concerned". In view of the duty to co-operate fully (see above), it would seem that such written permission cannot be refused. Hence it would seem that investigators appointed by the EPO can search and size private property without regard of national law.
D. INSUFFICIENT LEVEL OF PROOF
The results of the fact-finding of the investigative unit form the basis for further decisions, ultimately taken by the President. If the investigative unit finds that fraud, misconduct or harassment has occurred, this could lead to disciplinary proceedings and ultimately dismissal. According to Art. 18(4)(ii), the investigative unit will base its conclusions "on a preponderance of the evidence", i.e. a merely greater than 50% likelihood that fraud, misconduct or harassment has occurred. This is an unacceptably low level of proof given the potentially serious consequences.
E. LACK OF TRANSPARENCY
According to Article 18(7) "the subject of an investigation shall receive a copy of the report if and when, on the basis of the report, disciplinary proceedings are initiated", meaning that an investigative report on a person may exist without his or her knowledge of the contents. This would not seem acceptable in any European state in 2013.
F. NO LEGAL ASSISTANCE DURING HEARINGS
The subject of an investigation does not have the right of legal assistance of his own choosing (e.g. from outside the office) during hearings. This is in contradiction to article 6 paragraph 3(c) of the ECHM.
IV. CONCLUSIONS AND REQUEST
The CSC is of the opinion that the Guidelines for Investigations confer excessive powers to the President of the EPO and the Investigative Unit without providing the corresponding guarantees and safeguards for staff as normally provided by national law in the EPO Member States.
The CSC doubts whether the Guidelines as they currently stand are in accordance with Art. 12 of the Universal Declaration of Human Rights:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
The CSC also doubts whether the Guidelines as they currently stand are in accordance with the European Convention on Human Rights (ECHR):
Article 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 6 Right to a fair trial
[...]
3. Everyone charged with a criminal offence has the following minimum rights:
[...]
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
The CSC therefore requests an independent legal evaluation of Circulars 341 and 342 of to answer the following questions:
(a) are Circulars 341 and 342 in compliance with international human rights conventions, and
(b) do Circulars 341 and 342 afford staff of the EPO a level of protection against arbitrary interference with his or her privacy, family, home or correspondence that is equivalent to that provided in the EPO Member States?
The Central Staff Committee
"In part III we are planning to look deeper into the EPO and step into the chambers of the notorious I.U.""The bottom line here," explained our source, "is that due to the apparent inaction of the Administrative Council, the President has succeeded in single-handedly imposing on the EPO a system which places unlimited power into his own hands and there is no effective system of checks and balances to prevent abuse.
"This situation is contrary to the spirit of the European Patent Convention which envisaged a European Patent Organisation based on the classical tripartite "separation of powers" model à la Montesquieu.
"From the minutes of the Diplomatic Conferences which led to the signing of the Convention in its final form in 1973, it its clear that the drafters envisaged a tripartite system consisting of a legislative body (the Administrative Council), an executive body (the Office administration headed by the President) and a judicial or quasi-judicial body (the Boards of Appeal).
"The tripartite model of governance doesn't appear to be to the liking of the current President whose preference seems to be for a more centralised autocratic system.
"The current dysfunctional developments in EPO governance were already commented upon by a number of external observers back in December 2014. For example, the German patent attorney Thorsten Bausch wrote an article entitled "Que le pouvoir arrête le pouvoir – >From Montesquieu to Battistelli" dealing with the perceived breach of the principle of the separation of powers by the President.
"Further critical observations in a similar vein have been made recently by Siegfried Broß, a retired judge of the German Federal Constitutional Court.
"The most puzzling aspect of the current situation is the role of the Administrative Council. It is unclear why they have permitted such an unfettered concentration of power in the hands of the EPO President contrary to the fundamental principles enshrined in the EPC. Either they understand what is going on and are actively colluding in it or else the President has been very successful in pulling the wool over their eyes. Whatever the truth of the matter may be, it is very difficult to avoid the impression that the Administrative Council is failing to fulfill its institutional role as envisaged by the drafters of the EPC."
In part III we are planning to look deeper into the EPO and step into the chambers of the notorious I.U. Therein we may find reasonably good explanations for at least some of the many suicides (casualties of war, namely Battistelli's war on dissent or perceived opponents). ⬆