Summary: Staff representatives at the EPO voice opposition to so-called 'reforms' which are neither desirable nor legal

THE Administrative Council (AC) of the EPO will be meeting in The Hague at the middle of the coming week and letters have been sent, as usual, to tell delegates what Battistelli is really up to and why he should be stopped. For reasons explained here before, we expect small countries (some of which are mere cities with a vote equivalent in weight to that of a country like Germany or France) to just nod mindlessly at Battistelli, but what about the rest?

Here is SUEPO's letter, which explains what Battistelli is trying to accomplish and why it must be prevented:

16 June 2017

Deficient proposals tabled to the Administrative Council of the European Patent Organisation (28-29 June meeting)

To: Ministers responsible for Intellectual Property of the EPO Member States Cc: Heads of Delegation in the Administrative Council of the EPO (by email only)

Dear Sir/Madam,

The Staff Union of the European Patent Office (SUEPO) wishes to draw your attention to the upcoming session of the Administrative Council (AC) of the EPO on 28 and 29 June 2017 and the proposals made by President Battistelli on which the representatives of the member states, including yours, will vote.

We are aware that the Central Staff Committee of the EPO is in the process of informing your national Delegate in more details of the severe deficiencies of a set of proposals tabled by the President of the EPO (CA/58/17 and CA/65/17).

1. With CA/65/17 the President of the EPO proposes a far-reaching restructuration of the EPO that violates the European Patent Convention, and will, if the AC adopts CA/C 8/17, create a risk of nullity of the patents granted under such structure as well as constitutional risks at national level.

2. A further set of proposals (CA/58/17) relating to the internal justice system of the EPO is highly problematic, because it contains regulations that

- violate fundamental rights, for instance as defined in the European Convention on Human Rights, - are not compatible with the EU law, including EU Data protection guidelines, - are not compatible with the national legal framework of EPO Member States, - entail a high risk of litigation, of disrepute of the organization, and liability of member states.

If the proposals were adopted, the Member States, through their delegates in the AC, would discharge the President of the EPO of any responsibility in those matters, and take

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responsibility for the consequences. Their own governments would, in consequence, be vicariously liable.

We thank you very much for your attention to this matter.

The Central Staff Committee too has written about it and we reproduce the letter below (a lot of staff already saw this):

Date: 16.06.2017

To the Members of the Board of the Administrative Council

Reform of the EPO justice system (CA/58/17)

Dear Delegate in the Administrative Council,

Soon you will gather for the 152^nd Council meeting, where you will have to decide on the reform of the internal justice system as proposed in document CA/58/17.

The Council acknowledged the concerns of staff when adopting resolution CA/26/16 in March 2016, by calling on the Office to reform its internal justice system so that it be fair, and be seen to be fair.

CA/58/17 contains elements of progress¹. However, the reform addresses none of the true causes of the staff’s distrust. It sometimes even exacerbates it. More particularly, we would like to point to the following flaws:

• An appointment of staff representatives guaranteeing a balanced composition is a fundamental feature of the Appeals Committee². By artificial limitations, it is made yet more difficult³.



• In a (quasi-) judicial system, the appointment, by the Head of the Administration, of a chair endowed with wide-ranging powers for a (renewable) term of three years⁴ must be considered as incompatible with (the perception of) independence.
• The route for dealing with lack of professional ability and efficiency can be used to substitute for the disciplinary route, with reduced safeguards⁵.

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¹ e.g. non-discrimination and commitment to combatting harassment ² See Judgments Nos. 3694 and 3785, which annihilated the work of the Appeals Committee for the years 2014 (partly), 2015 and 2016. ³ The eligible appointees are limited to elected staff representatives and the President has further reduced the time allocated to them in revised Circular No. 356. ⁴ Article 98(4) ServRegs for the Disciplinary Committee; Article 111(7) for the Appeals Committee ⁵ See in particular the composition of the Joint Committee in Articles 53a

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• The final decision of the appointing authority may still exceed the recommendation in the opinion of the Joint, Disciplinary or Appeals Committees⁶.



• The possibility of withholding parts of the salary for alleged failure to comply with one’s duties, by a mere administrative decision and in addition to a disciplinary sanction, is unprecedented and illegal⁷.



• The control of the Office is extended into the life of former employees and pensioners⁸, with wider arbitrary prerogatives and less safeguards than in other international organisations.



• Data protection and the protection of private property are made discretionary during investigations⁹.



• The independence of the Ethics and Compliance Function from the President of the Office is not ensured by its organisational setup¹⁰.

The reform leaves fundamental rights unrecognised and unenforceable. It is even likely to set the foundations for future violations of those rights.

If the Council is minded to recall resolution CA/26/16 and restore the trust of the staff, the public, and the ILOAT in the EPO’s ability to administer its own justice system, CA/58/17 must be amended, with clear indications of what the Council expects.

Yours sincerely, The Central Staff Committee

We confirm that this letter was legitimately decided and produced by the Central Staff Committee¹¹.

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⁶ Articles 53b(4), 94a and 110(4); this is a major cause of the staff’s negative perception of fairness. ⁷ Compare Article 63a with e.g. German case law ArbG Frankfurt 20.1.2004 – 4 Ca 4332/03 ⁸ See e.g. Article 94(1)(h) ServRegs ⁹ See e.g. Article 16 Implementing Rule ¹⁰ See Article 21 ServRegs ¹¹ Pursuant to Article 35(3) ServRegs, the Central Staff Committee shall consist of ten full and ten alternate members.

The CSC presently consists of 8 full and 7 alternate members, because two have resigned in December 2014, one has been dismissed in January 2016 (against the recommendation of the Disciplinary Committee), one resigned as of October 2016, one has been further dismissed in November 2016 and one refused replacement of a full member against Article 7(3) of Circular 355 since December 2014.

Furthermore, one member of a LSC has been dismissed and a further full member of the CSC has been downgraded in January 2016 (against the recommendation of the Disciplinary Committee). In fact, the Office has launched investigations and disciplinary procedures against several other Staff representatives as well, affecting negatively their health.

It will be interesting to see how countries vote next week and if, as rumoured, there is another silent push to dismiss the judge who has been on "house ban" for 2.5 years (and whose pay got halved last year). Will the Administrative Council go ahead the following week and post this job vacancy for Battistelli's position? It says that it "shall be published on the Office's website on 3 July 2017."

Battistelli lost two separate referendums/elections in recent days. Will he lose another one? ⬆