A terrified and/or complicit Administrative Council has been persuaded by the Office to break the rules and help break the law. This is Battistelli's truly ugly legacy at the EPO (the Administrative Council ought to sack Battistelli, but it looks as though financial strings now exist to prevent this).
"The EPO is now indistinguishable from state-sponsored Mafia or vigilantes, where the state is the equivalent of the Administrative Council (unwilling to step in to intervene or put an end to gross injustices)."Today the Administrative Council is meeting and right now there is a protest by staff (the weather in Munich seems acceptable for a change). They have so much to be angry about and Battistelli has so much to be punished for (if his immunity gets removed as it ought to). He is breaking even his own rules at every turn.
The one truly interesting discussion at IP Kat right now revolves around the leaked decision (we even translated the whole thing into Spanish -- all 33 pages of it). To quote one new comment:
So let me get this right. You are suggesting that the ability of the President of the EPO to initiate disciplinary proceedings and/or impose a "house ban" against a member of a BoA (which was the basis of the EBoA perceiving the President's letter as a "threat") means that the BoAs are not "independent" from the rest of the Office.
Have I understood that correctly? If so, are you not talking more about a perception of independence? I would rather have thought that the EBoA rather demonstrated their independence in this case, by not taking the decision that the President so clearly wanted.
Of course, the point about perception of independence is an important one to address, and so I would suggest that it is essential that the procedure for removing a member of the BoA is changed (again) to eliminate all possible influence of the President of the Office on the process.
Headache old chap it might be that the construction noise is befuddling one's brain ?
Unless I am very much mistaken the term "judicial review" when used in an international treaty like TRIPS means the review of an administrative or other decision by a judicial instance. https://en.wikipedia.org/wiki/Judicial_review
A "judicial instance" is commonly understood to refer to a tribunal which is independent of interference by other branches in particular the executive.
If the BoA are not free from interference by the executive then arguably they no longer comply with the TRIPS requirement.
Compliance with TRIPS is not the EPO's problem. But it could be a problem for the member states.
If you can't or don't want to understand that I suggest that you concentrate your mind on trying to fulfill your five-year plan targets and leave such issues to others. Just don't blame me when your government is sued by the US or some other non-European state for breach of TRIPS.
Where does TRIPS limit itself to states having the judicial powers independent? It is NOT a requirement, however much we westerners want that to be.... See Poland, as example....
Also: Compliance with TRIPS is not the EPO's problem. But it could be a problem for the member states.
Do the member states care, if they do not even care for breaches of the ECHR?
"I would rather have thought that the EBoA rather demonstrated their independence in this case, by not taking the decision that the President so clearly wanted."
The EBoA apparently was forced to terminate the proceedings because their envisaged course brought a threat upon them. Termination of the proceedings and not taking a decision on the substantive merits was the only option because both, an "unlawful" and a "lawful" decision in any case would have been vitiated (items 44-46 of the decision).
This, in my view, cannot be called "independent".
Following your suggestion in principle the EBoA€´s proceedings could always be forced to be terminated without issuing a decision on substantive merits merely by threatening the Board€´s members.
Such a decision (termination of the proceedings), however, would be the direct result of the threat. Since the threat can be brought upon the members at will of the threatening party such an outcome of the proceedings (termination of the proceedings) could be brought about by the threatening party irrespective of any substantive merits of the respective case and fully at the discretion of the said threatening party.
In such a case the threatening party would be in the "driving seat" and by no means can it be concluded that under such circumstances the EBoA is independent.
As long as a threat can be used by either a party to the proceedings or a third party to determine the outcome of the said proceedings (i.e. to cause termination of the proceedings at will by threatening the judges) I believe the judges cannot be independent.
I think in the present case they were impartial (The decision also does not at all read that they took position for any of the parties involved) but in order to be independent they would have had to be in a position to conduct the proceedings in a manner the board saw fit. This they were not. Had they been the outcome might have been different and a decision whereby they take position for any of the parties involved would most probably have been the outcome.
I don't agree with you [...] As I see it, they terminated the proceedings because of the threat of the president. Since the proceedings could not be continued, they could not propose dismissal - as they were requested to.
If next time they will be able to hold proceedings in public and hear the witnesses of the IU, there should be no reason why they will not be able issue a decision on the merit of the accusations.
The guy cannot remain in a limbo without his name being cleared - or not.
Why do you think that their decision precludes another attempt by the AC - i.e., Battistelli?
There is only one party other than the appointing authority that can propose to the appointing authority disciplinary measures in respect of the EBA members. Therefore, when that only other exceptional party indicates that it considers the EBA to be wrong and further indicates that it intends to apply measures available thereto, then the one arguing that there is no threat to the EBA is hard-pressed to explain why the members of the EBA should not feel threatened.
The members of the EBA should not feel threatened by any party other than the appointing authority which at the same time does not have the right to propose to the appointing authority any disciplinary action. This can be accepted. However, the only exceptional party that enjoys the explicit right to propose the disciplinary measures to the AC also "enjoys" the responsibility not to use it as a threat to the EBA.
If I wrote to the EBA that I considered their decision wrong and that I would propose disciplinary measures to the AC, the EBA would and should laugh at me, but the EBA cannot do that in case of the one exceptional party. Thus, as I do not have the right to propose any disciplinary measures, I do not have the responsibility. I can freely indicate that I will propose disciplinary measures, but this, coming from me, is not a threat to the EBA. This, coming from you-know-whom, is a bit different.