THE EPO is nowadays being managed by a right-wing politician. It has been the case for about 7 years and the next President will be an ex-banker (earlier this morning we finished a series about that). Remember that the EPO, at its core, should be about science and technology. Scientists tend to be more professional and compassionate than ENA graduates. They also better understand scientists (such as examiners). Pompidou is the adopted son of Georges Pompidou, former President of France, but he is also former professor of histology, embryology and cytogenetics, according to Wikipedia. António Campinos too is the son of a politician (Joaquim Jorge de Pinho Campinos), but he is not a scientist.
Zentraler Personalausschuss Central Staff Committee Le Comité central du Personnel
12.11.2014 sc14265cp – 0.2.1/5.1/6.1
Disciplinary Committee
Introduction
The Disciplinary Committee is a statutory body set up under the EPO Service Regulations. The Committee has to be consulted if the President intends to impose a serious disciplinary measure against a staff member1 or wishes to dismiss a staff member for poor performance.
As with all such bodies at the Office (the GAC – now GCC – the Medical Committee, the Internal Appeals Committee, the COHSEC etc.), the legal construct is that the Committee considers the facts and gives a reasoned opinion. The President then decides.
Problems
This legal construction functions if the Office has a President who is prepared to consider the reasoned opinions which the consultative committees give him. However, Mr Battistelli has in the past ignored the medical opinions of doctors in the Medical Committee and decided that staff members not capable of performing their job for medical reasons should nevertheless not be sent on invalidity. This is something that no other President has done. Not even Mr Pompidou, who in contrast to Mr Battistelli, was a doctor. It should also be well known by now that Mr Battistelli as a matter of course ignores opinions of the Internal Appeals Committee that are favourable to staff. Mr Battistelli so disliked the reasoned opinions of the GAC that he abolished it and replaced it with the GCC, which, according to his understanding, is not allowed to give opinions, and merely votes on proposals2.
It should thus come as no surprise that Mr Battistelli also ignores the reasoned opinions of the Disciplinary Committee. In the past, he has imposed disciplinary measures on staff which are more severe than the Committee recommended. In other cases, he has imposed severe disciplinary measures even though the Committee considered that no disciplinary measure should be applied.
The above is worrying enough. However, there are further reasons why staff should be concerned with the functioning of the Disciplinary Committee:
1. The President’s nominations as Chairman and deputy
The President nominates the Chairman of the Disciplinary Committee and his deputy. The Disciplinary Committee is not a “standing committee”. That is to say, it does not have a fixed constitution. Rather, its membership (other than the Chairman) changes from case to case (see below). Thus it is of crucial importance who the President nominates as Chairman. This person is the only member who has an overview of similar cases and has experience in ___________________________________ 1 A warning or reprimand may be issued without consulting the Disciplinary Committee. More serious measures e.g. downgrading or dismissal require consultation. 2 This is one reason why the GCC is for staff inferior to the GAC and thus a reason why abolishing the GAC severely limits staff’s consultation rights.
handling cases, drafting opinions and so on. This is particularly important since the Committee has limited e.g. legal support for reasons of confidentiality.
Up until this year, the President nominated members of the Legal Board of Appeal. That is to say, people who are both legally qualified and neither appointed by himself nor under his disciplinary authority. From this year, Mr Battistelli nominated managers on contract at grade A6. Thus, the President sends a case to the Disciplinary Committee chaired by a manager on contract who falls under his disciplinary (and managerial) authority. The Chairman, on behalf of the Committee drafts a recommendation. This recommendation goes back to the Chairman’s superior, namely the President. The President then decides.
This is precisely the construct which, in Findlay v. The United Kingdom the European Court of Human Rights ruled against in case 22107/933 (see in particular ۤ70 Р80 of that case)!
2. Significantly more cases
This year has seen a more than doubling of the number of disciplinary cases. In itself, this should be a cause for concern. In the course of their normal duties both the Chairman and deputy have a heavy burden of other work and duty travels. Indeed, the Chairman has staff in both The Hague and Munich. We thus hope that both of them will be able to give this task the time it requires, especially (as seems likely) should the number of cases increase further. This was not a problem in the past (see above), when both nominees had tasks that ensured that they were generally available.
3. The President interfering with Staff Committee nominations
According to Article 98(1) ServRegs, half the nominations to the Disciplinary Committee are made by the President and half by the Staff Committee. These nominations are made by grade or group-of-grades. Who is to serve as member in a particular case is decided by drawing of lots. The names in the draw may not be of a grade (or group-of-grades) lower than that of the subject of the case. For example, if the case subject is an A3 examiner, then only Disciplinary Committee nominees in group of grades A4(2)/A1, A5 or A6 are in the draw.
For reasons of independence (see above) and procedural expertise the Staff Committee has mainly nominated members and chairmen of the Boards of Appeal for the A5 and A6 slots. These nominations have all been deleted by Mr Battistelli (see also recent Communiqué 62). This despite the Administrative Tribunal of the ILO already having decided in Judgment 1147, that the Staff Committee may nominate DG3 members to statutory bodies. Indeed, in a submission in the proceedings leading to this Judgment, the Office even argued in its surrejoinder (see €§E) that “Since disciplinary committees are quasi-judicial bodies it is proper for them to benefit from the experience of a DG 3 official”.
The effect on staff of this change is that there are fewer Staff Committee members whose names may be drawn in a particular disciplinary case.
4. No possibility of internal appeal
As part of the appeal reform in 2012, decisions taken following consultation of the Disciplinary Committee are excluded from the internal appeals system. That is to say, there is ___________________________________ 3 http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58016
no further internal oversight mechanism. The affected staff member has to file a complaint directly with the Administrative Tribunal of the ILO.
The Internal Appeals Committee used to be relatively good at picking up formal violations. It also performed an important fact finding role – a job which the Tribunal does not do; it expects that already to have been done.
Removing oversight of disciplinary decisions from the IAC thus means that an important instance for staff has been removed. It also increases the need for the Disciplinary Committee to produce error free, comprehensive and legally sound opinions which can form the basis of complaints in front of the ILO. Given that the Disciplinary Committee is not a standing committee and given that the Chairman is no longer legally qualified, we would be surprised if this was always the case.
Conclusions
For the above reasons, we consider that at the moment the Office no longer has a properly functioning disciplinary mechanism. We thus recommend all staff whom are unfortunate enough to have a case brought against them to raise the above procedural violations should they bring their case in front of the Administrative Tribunal.
Finally
If the above sounds bad enough for “normal” staff members such as examiners, administrators, lawyers, formalities officers etc. consider the position of A5, A6 and A7 staff.
Owing to the President’s actions, there are now only two A5 and no A6 Disciplinary Committee members nominated by the Staff Committee (see above). Thus, it is not possible to form a valid committee for staff in these grades. How do you draw lots for two names from a pot comprising two (for A5 staff) or no (for A6 staff) names? However, we note that the Internal Appeals Committee is currently carrying on its work without any Staff Committee nominees. We thus suspect that Mr Battistelli would likewise instruct the Disciplinary Committee to proceed in such cases with only members nominated by himself!
From Article 98(3) ServRegs it is obvious that it was originally intended that a Disciplinary Committee would be formed for dealing with proceedings affecting staff at grade A7. However, under the latest vice-President contracts, these provisions no longer apply. That is to say, disciplinary measures may be imposed, by the Council, following an investigation by the President’s investigative unit, against a vice-President without first consulting a Disciplinary Committee.
Is it any wonder that, by their silence, these groups of staff have shown remarkable loyalty to Mr Battistelli?
As Thomas Jefferson put it: “when injustice becomes law, resistance becomes duty”.
The Central Staff Committee