06.23.16

Benoît Battistelli Should Resign in Light of New Leak of Decision in His Vendetta Against Truth-Telling Judge (Updated)

Posted in Europe, Patents at 3:01 pm by Dr. Roy Schestowitz

Summary: Benoît Battistelli continues to break the EPO’s own rules, not just national laws, as a new decision helps reveal

THIS afternoon we wrote about the EPO ‘trial’ and people were eager to ‘leak’ to us the outcome, as we had hoped all along. We urge readers to inform their delegates and maybe even Heiko Maas regarding the matter. Enough is enough.

Battistelli, judging by his blog today [warning: epo.org link], has just gone to Albania (champion of patents!), which makes one wonder what he told or promised them other than free dentists.

Here is the decision’s text, which could use some brushing up (we shall do this as we go along and highlight bits in yellow).

Internal distribution code:
(A) [X] Publication in OJ
(B) [ ] To Chairmen and Members
(C) [ ] To Chairmen
(D) [ ] No distribution

Datasheet for the decision
of 14 June 2016

Case Number: Art. 23 1/16

Language of the proceedings: EN

Petitioner:
Administrative Council of the European Patent Organisation

Respondent:

Headword:
Request for a proposal for removal from office

Relevant legal provisions:
EPC Art. 23(1), 23(3)
RPEBA Art. 12a(9), 12a(10), 18(3)

Keyword:
Decision on the request of the Administrative Council under
Article 23(1) EPC to make a proposal to remove the respondent
from office: The Enlarged Board decides to make no proposal”
Petitioner party to adversarial proceedings (yes)”
Publication (yes)”
Reimbursement of all the respondent’s procedural costs
proposed”
Violation of Article 23(3) EPC, judicial independence, by
Office President’s letter of 10 June 2016 (yes)”

Catchword:
For the Enlarged Board to be able to continue with these
proceedings the position of the Petitioner would have to be
that it did not agree with the Office President and
acknowledged that, from an institutional point of View, the
pressure exercised by the Office President in the present case

EPA Form 3030
This datasheet is not part of the Decision.

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- 2 -

was incompatible with the judicial independence of the
Enlarged Board guaranteed by the EPC. As the Petitioner did
not clearly distance itself from the Office President’s
position, there is the threat of disciplinary measures against
the members of the Enlarged Board. It is then the Enlarged
Board’s judicial independence in deciding on this case which
is fundamentally denied.

EPA Form 3030 06.03

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Case Number: Art. 23 1/16

D E C I S I O N
of 14 June 2016

Petitioner: Administrative Council of the
European Patent Organisation
Bob-van-Benthem-Platz 1
D-80469 Munich

Representatives:

Respondent:

Representative: Senay Okyay
Rechtsanwaltin
Sonnenstrasse 6
D-80331 Munich

Composition of the Board:
Chairman: M.-B. Tardo-Dino
Members: E. Liiv
A. Dimitrova
I. Beckedorf
D. Rogers
U. Oswald
H. Meinders

C 1 0 9 5 8 . DA

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Summary of Facts and Submissions

I. These proceedings began on 11 February 2016 and concern
the request of 11 January 2016, confirmed on 27 January
2016 (hereafter AC Request 3), from the Administrative
Council of the European Patent Organisation (hereafter
the Petitioner or AC) asking for a proposal from the
Enlarged Board of Appeal that Mr X (hereafter the
Respondent) be removed from office as a member of the
Boards of Appeal, such a request being made under
Article 23(1) EPC and Article 12a of the Rules of
Procedure of the Enlarged Board of Appeal (RPEBA).

II. The request in these proceedings is the third such
request made by the Petitioner. The first request was
found to be inadmissible because it failed to fulfil
the formal requirements of factual substantiation
prescribed by Article 12a(5) RPEBA (decision in case
Art. 23 1/15 of 17 September 2015). The Petitioner
itself withdrew its second request at the oral
proceedings in case Art. 23 2/15 on 11 February 2016.
Following said withdrawal, the proceedings were
terminated by the decision in case Art. 23 2/15 of
11 February 2016.

III. The orders of the Enlarged Board of Appeal (hereafter
the EBA or Enlarged Board) that both the above
mentioned decisions were to be published have not yet
been executed by the competent authorities of the
Office.

IV. The filing of these three requests by the Petitioner in
this matter, and in this fashion, led not only to
delays in the treatment of this matter, but forced

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various changes in the composition of the Enlarged
Board due to the non-availability of some of its
members, thus adding further delay.

V. In order to understand the current proceedings a review
of the background and history of these requests is
required. Only the most relevant facts will be set out
below.

VI. On 3 December 2014 the President of the EPO (hereafter
the Office President) ordered a house ban and the
suspension of the Respondent.

VII. On 11 December 2014 (CA/D 12/14) the AC, on a proposal
from the Office President (CA/C 8/14), decided to
confirm the suspension of the Respondent, considering
that this was the most appropriate measure to take and
was in line with the house ban decided on by the Office
President. It also decided that the Office
investigative unit (hereafter IU) was the competent
body to pursue this investigation and to deliver its
report to the AC and to the Office President.

VIII. On 5 March 2015, the IU delivered its report (hereafter
IU Report).

IX. On 26 March 2015 the AC initiated disciplinary
proceedings against the Respondent (CA/28/15, Summary
of decisions item 10.1, page 5). It also mandated its
Chairman to take all necessary follow-up actions.

X. The AC set up a Disciplinary Committee, (hereafter DC),
which upon the basis of the IU Report delivered a
report on 23 June 2015, (hereafter DC’s opinion), to

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the Chairman of the AC. The DC found that the
Respondent had carried out several acts and that these
acts constituted misconduct, for which the appropriate
sanction was dismissal.

XI. In the present proceedings, based on AC Request 3, the
Petitioner relies on the IU Report and on the DC’s
opinion and has redrafted its request.

XII. AC Request 3 contains two allegations:

Allegation 1: Unauthorised disclosure of non-public
information and critical opinions related to Board of
Appeal activities outside the EPO while using
pseudonyms.

Allegation 2: Spreading of false accusations and
unjustified attacks or threats against the EPO and its
members either directly or indirectly using anonymous
statements and pseudonyms.

XIII. The parties were summoned to a first non-public oral
proceedings on 10, 11 and 12 May 2016. The purpose of
these oral proceedings was to discuss the competence of
the Enlarged Board, the admissibility of AC Request 3
and the Respondent’s request for summary termination of
the proceedings.

XIV. By a letter dated 2 May 2016 the Petitioner stated that
it did not consider itself a party to the proceedings,
it represented only the institutional interest of the
AC. It initiated the proceedings, pursuant to
Article 23(1) EPC, in its capacity as the competent
appointing authority.

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XV. The written and oral submissions of the Respondent can

be summarised as follows:

1. Procedural status of the AC in the proceedings.
The Respondent requested in the May 2016 oral
proceedings that the position of the Petitioner as
a party to the proceedings be confirmed, or, if
not, that it be excluded.

2. Competence of the Enlarged Board, its independence
and its legitimacy to deal with the case on the
following grounds:

(a) The conflict between Article 12a RPEBA and
the higher ranking legal norm of Article 23(1)
EPC.

(b) Perversion of the procedure foreseen under
Article 23(1) EPC: AC usurps the provisions
of the EPC and their spirit.

(c) The failure to comply with the fundamental
principles of judicial independence set forth
in the “European Charter on the statute for
judges” and the “Magna Charta of Judges” in
the composition of the Enlarged Board in
proceedings under Article 12a RPEBA (lack of
elected members).

(d) The impermissible attempt on the part of the
AC to instruct the Enlarged Board by means of
CA/D 14/15, which constitutes a perversion of
the procedure foreseen under Article 23(1)
EPC.

(e) The consequence of the amendment of
Article 95(3) of the Service Regulations

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(hereafter ServRegs) (CA/D 18/15) on the
independence of the Enlarged Board.

3. Admissibility issues on the following grounds:

a) The power delegated to the Chairman of the AC
in CA/D 14/15 was exhausted upon termination
of the proceedings in case Art. 23 2/15, with
the withdrawal of the request.

b) The principle of Res judicata should apply.

c) The principle of N6 bis idem should apply.

d) AC Request 3 fails to heal the deficiencies
in the preceding requests and is no more
substantiated than in case Art. 23 1/15.

4. Request for summary termination of these
proceedings on the following grounds:

a) The proceedings should lead the Enlarged
Board to immediately terminate or stay the
proceedings until the AC adopts appropriate
measures to ensure that the independence of
the members of the Enlarged Board is
guaranteed.

b) Lack of lawful basis of the proceedings.

c) Attempts to undermine the presumption of
innocence.

d) Flawed composition of the DC.

e) Flawed disciplinary procedure.

f) Deficient opinion of the DC.

g) Flawed investigative procedure initiated by
the EPO administration.

h) CA/D 12/14 failed to heal the flaws of the
investigative procedure.

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i) Procedural abuses.

j) Flawed IU Report.

5. Relating to the substantive subject-matter on the
following grounds:

a) Failure to consider the circumstances in
which the alleged misconduct occurred.

b) Failure on the part of the AC to address the
issue that the IU Report is neither neutral
nor objective in its presentation of facts;
observations on the DC’s opinion.

c) Inconsistencies in the DC’s opinion.

d) Suppression and/or deliberate omission of
evidence.

e) Unresolved issues concerning exhibits B43 to
B45.

f) Attempts to reintroduce previously abandoned
allegations.

g) Failure to respond to issues previously
raised by the Respondent.

h) Observations about the events of 3 December
2014.

XVI. During the non-public oral proceedings of 10 to 12 May
2016 the aforementioned issues under numbers 1-4 were
discussed with the parties. A discussion of the issues
raised under number 5 above was postponed to the June
2016 oral proceedings on the merits. The Enlarged Board
concluded that the AC Request 3 was admissible. It also
decided not to summarily terminate the proceedings.

XVII. The Enlarged Board gave case management directions for
the oral proceedings foreseen for June 2016 to discuss

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the merits of the case, in particular as regards the
notion of serious grounds and probative and formal
aspects of the evidence.

XVIII. Upon the request of the Respondent, and after
discussing with the parties, the Enlarged Board decided
that the oral proceedings on the merits in June 2016
would be held in public unless the Enlarged Board would
decide to exclude the public, which it would do
whenever the nature of the debate made this necessary.

XIX. The oral proceedings on the merits of the case were
arranged for 14 to 16 June 2016. The parties were
invited to prepare their submissions for that debate.
The Chair informed the parties that the Enlarged Board
had decided that three members of the IU would be
called as witnesses.

XX. Both parties filed their submissions with letters of
6 June 2016. Thus the parties and the Enlarged Board
were in a position to discuss the merits of the case at
the public oral proceedings on 14 to 16 June 2016, and
the Enlarged Board considered that it would then be in
a position to issue a final decision on the merits.

XXI. The Vice-President Appeals was given, and took, the
opportunity to submit his observations in the
proceedings in accordance with Article 12a(2) RPEBA.

XXII. In addition to the submissions of the Petitioner, on
6 June 2016, the Chairman of the AC sent a letter
directly to the Chair of the Enlarged Board expressing
general reservations in respect of the decision to hold
the oral proceedings of June 2016 in public. Further,

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he asked for confirmation that the file would not be
made available to anyone other than the members of the
Enlarged Board in its present composition.

XXIII. The Chair of the Enlarged Board replied to the Chairman
of the AC on 7 June 2016, confirming that there had
been no disclosure of the file by the Enlarged Board
other than to the members of the Enlarged Board in its
present composition. In addition to this the Chair
repeated the wording of the decision on the holding of
public oral proceedings on the merits, as taken in the
oral proceedings of May 2016. In addition to that, the
Chair confirmed that the Enlarged Board was fully aware
that the proceedings should not jeopardise the
interests or honour of any person, in particular
persons whose names might arise during the proceedings.

XXIV. On 14 June 2016 the Petitioner confirmed, during the
in camera conference, that this letter by the Chair of
the Enlarged Board addressed the general reservations
raised in the earlier letter of the Chairman of the AC.

XXV. By a letter of 10 June 2016 the Office President, who
is not foreseen as a party to these proceedings under
Article 23(1) EPC and Article 12a RPEBA, wrote directly
to the Chair of the Enlarged Board with copies to the
other members of the Enlarged Board in its present
composition.

The letter is titled “Office representation in the case
Art. 23 1/16”. This letter stated:

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“With due respect to the principle of independence of
the Board of Appeals enshrined in Art. 23 EPC, by
Virtue of the powers under Art. 5(3) and 10(1)(2)(h)(i)
EPC, I would like to bring to your attention certain
concerns expressed in the attached position prepared by
my legal counsels.”

XXVI. The attached document, an English QC’s opinion, is
entitled: “In the matter of a procedure in front of the
Enlarged Board of Appeals”, “Position Statement for the
President of the European Patent Office”. The following
passages appear to be relevant for the proceedings:

“19. It will be recalled that the role of the EBOA
under Article 23 EPC is to make a proposal on the
removal from office, having regard to the fact that
this sanction has been recommended by the DC and
endorsed by the AC. This article does not confer an
appellate or investigative power, let alone a free
standing and further fact finding mandate. The
nature and extent of the evidence already available
to the EBOA means that the attendance of these
witnesses is not necessary for the Article 23(1) EPC
proceedings to be conducted fairly and effectively.”
“21. It is quite inappropriate that a full re-
hearing of the facts take place on 14-16 June; there
are no Vires in this forum to conduct an appeal
process nor indeed to recommence an investigation;
accordingly, the personal presence of any witnesses
from the Office will not be required or authorised
by the President.”

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“23. With that in mind, the President will not, we
are also instructed, hesitate to take any
appropriate steps available to him to ensure the
orderly running of the Office and the safety of its
employees.”
“27. In View, in particular, of the gravity of the
reputational, security, welfare and public order
risks identified, there is a strong case for saying
that any decision to conduct this hearing in public
would be unlawful because it could not be defended
as either proportionate or reasonable.”
“28. For all these reasons, the President deems it
necessary in the interests of the whole Organisation
that there is an assurance that this matter will
proceed in camera and that no witnesses will be
called from the Office.”

XXVII. Although it was foreseen to open the public oral
proceedings on the merits of this case at 9:00 hours on
14 June 2016, the Enlarged Board decided to hold a
preliminary in camera conference with the parties in
order that the Petitioner could clarify its position as
regards the Office President’s letter of 10 June 2016.
This conference was adjourned from 11:40 to 14:30 hours
to permit the Petitioner’s representatives to take
instructions on this matter.

XXVIII. At 14:30 hours, the Petitioner’s representatives were
finally in a position to submit a statement from the
Chairman of the AC relating to the Office President’s
letter of 10 June 2016.

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XXIX. At 17:15 hours, the in camera conference ended and the
public oral proceedings began. The Chair of the
Enlarged Board then made the following statement:

“The Enlarged Board of Appeal has received a letter of
an authority not party to the proceedings, in which it
expressed the opinion that the Enlarged Board, in
deciding to hold public oral proceedings, took an
unlawful decision. It was discussed with the parties,
whether this letter could be considered, from an
objective point of View, as a threat to the
independence of the Enlarged Board in this case. The
petitioner was requested to express clearly whether it
endorsed this position or not, since the petitioner is
the appointing and the disciplinary authority for all
members of the Enlarged Board. The petitioner made a
declaration which did not distance it from this opinion
and which does not remove the threat. Under these
conditions, the Enlarged Board cannot legally continue
with the present proceedings, and therefore terminates
them with the decision that it does not propose the
removal from office of the respondent.”

XXX. The public was then excluded and the oral proceedings
continued without the public in order to deal with the
remaining requests of the parties.

XXXI. The final request of the Petitioner was

that the Enlarged Board of Appeal make a proposal
that the Respondent be removed from office as a
member of the Boards of Appeal.

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XXXII. The final requests of the Respondent were that:

1. The Petitioner’s request be dismissed,

subsidiarily that the proceedings be terminated;

and

2. The reimbursement of all of the costs incurred by
the Respondent in these proceedings be proposed;

and

3. The decision in case Art. 23 1/16 be published;

and

4. The Enlarged Board includes in the reasoning of
its decision obiter dicta in respect of the
Respondent’s requests set out in its letter of
24 November 2015.

XXXIII. At the end of the non-public oral proceedings the
present decision was announced.

Reasons for the decision

Nature of these proceedings

1. The present proceedings are in respect of the
Petitioner’s request for a proposal for the removal
from office of the Respondent. They are governed by
Article 23(1), first sentence, EPC. They are conducted
independently of any disciplinary proceedings
(Article 12a(8) RPEBA).

2. A proposal to this effect has to emanate from the
Enlarged Board of Appeal, and the Enlarged Board comes
to such a proposal exclusively by way of a decision, as
evidenced by Article 18(3) RPEBA. As it concerns a

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member of the judicial body of the EPO, who enjoys the
guarantee of judicial independence pursuant to

Article 23(3) EPC, this decision must itself also be
arrived at in accordance with the principle of judicial
independence pursuant to Article 23(3) EPC.

3. Neither the European Patent Convention nor the Rules of
Procedure of the Enlarged Board of Appeal foresee these
proceedings as an appeal from a decision or opinion in
the disciplinary proceedings or establish these
proceedings as a legal or factual part of the
disciplinary proceedings governed by Article 11(4) EPC
and the ServRegs. It is rather for the Enlarged Board
to establish, to its own satisfaction, by an
examination of the facts, evidence and arguments,
whether it is in a position to make the requested
proposal for removal from office.

INADMISSIBILITY OF THE PETITIONER’S REQUEST AND SUMMARY

TERMINATION OF THE PROCEEDINGS

Procedural status of the Petitioner in the proceedings

4. The procedure as adopted in CA/D 3/15 establishing the
Rules of Procedure of the Enlarged Board of Appeal in
this respect, is an adversarial judicial procedure (see
the Enlarged Board’s decision in case Art. 23 1/15,
point 5.7 of the Reasons). Filing the request,
representing the Petitioner’s interests and supporting
allegations against the Respondent, corresponds to the
role of a party in such proceedings. The Board merely
underlines that the adversarial nature of the
proceedings aims, as is usual under the rule of law in
democratic countries, at guaranteeing the Respondent a

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fair trial and not at undermining the power of the
disciplinary authority to take a final decision.

Competence of the Enlarged Board, its independence and
legitimacy to deal with the case

5. The Respondent insisted that Article 23(1) EPC was at
the core of the case, and the independence of the
members of Boards of Appeal was at stake. According to
this article the members of the Enlarged Board of
Appeal and of the Boards of Appeal shall be appointed
for a term of five years and may not be removed from
office during this term, except if there are serious
grounds for such removal and if the AC, on a proposal
from the Enlarged Board of Appeal, takes a decision to
this effect.

6. The Respondent argued that the procedure foreseen under
Article 23(1) EPC must be carried out entirely by the
Enlarged Board, in the sense that it was incompatible
with the wording of Article 23(1) EPC for the AC to be
able to initiate such proceedings by itself making a
request for a proposal.

7. In its decision in case Art. 23 1/15, point 5.7 of the
Reasons, the Enlarged Board already determined that the
procedure under Article 23(1) EPC is further specified
by Article 12a RPEBA. The AC as legislative power under
the EPC has endorsed these supplementary regulations by
its approval of them.

8. Neither Article 23(1) EPC nor Article 12a RPEBA
requires that the Enlarged Board and the Enlarged Board
alone has the power to initiate such a procedure.

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9. The Respondent has raised the issue that the amendment
of Article 95(3) ServRegs affects the independence of
the members of the Enlarged Board because it permits
any board member to be indefinitely suspended by a mere
decision of the AC. This amounts to a de facto removal
from office, since the suspension can be extended until
the member’s five year term expires. Upon expiry of the
five year term, re-appointment of the member in
question can then simply be denied, without a proper
Article 23(1) EPC proposal of the Enlarged Board. The
Respondent has not, however, raised this issue as part
of an objection under Article 24(3) EPC that is that
the members of the Enlarged Board might be suspected of
partiality by a party.

10. In the light of this the Enlarged Board considers that
it has to address the issue under Article 4(1) RPEBA,
that is whether any members of the Enlarged Board in
its current composition consider that because of the
amendments made to Article 95(3) ServRegs, they should
not take part in this procedure as they no longer
consider themselves to be impartial and independent in
their decision making.

11. The Enlarged Board notes that the amendment to
Article 95(3) ServRegs was decided upon by the AC in
its December 2015 meeting, during the course of this
series of proceedings. With this amendment it cannot be
excluded that the suspension of the Respondent will
continue to the end of his present five year term. The
Enlarged Board further notes that this is possible
because the period of suspension has been raised from 4
to 24 months specifically for board members, and it can

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now be extended by the AC in “exceptional cases”. A
limit to this extension is not given, and no guidance
as to what may constitute exceptional circumstances is
provided.

12. This amendment of Article 95(3) ServRegs therefore
gives the possibility, de facto, to the AC to remove a
member of the Boards of Appeal from office without
following the procedure in Article 23(1) EPC.

13. At the time this issue was raised in these proceedings,
during the May 2016 oral proceedings, the members of
the Enlarged Board, making their own individual
assessment of their situation, considered that the
threat to their judicial independence was a general,
abstract threat that would be present in all cases
before the boards, not just the present case. In fact,
taking it as a reason to exclude oneself would
necessarily imply that one could neither sit on any
normal Board of Appeal case, nor on referrals,
including petitions for review, to the Enlarged Board.

14. This situation has now changed as a consequence of the
Office President’s letter of 10 June 2016, (see para
XXV above, and para 36 to 47 below).

15. The Respondent has also objected to the Enlarged Board
of Appeal being composed of members none of whom is
elected, (see facts and submissions, para XV, 2(c)).
Neither the European Patent Convention, nor the Rules
of Procedure of the Enlarged Board in Article 23(1) EPC
cases have constituted the Enlarged Board with elected
members. The Enlarged Board has already decided upon
this point in its decision in case Art. 23 1/15,

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point 5.6 of the reasons. The Enlarged Board remains of
the same opinion in the present proceedings and adopts
the reasoning of that decision, without seeing any
necessity to repeat it here verbatim.

Admissibility issues

16. The Respondent has argued that the power delegated by
the AC to the Chairman of the AC to pursue this series
of proceedings was exhausted upon termination of the
proceedings in case Art. 23 2/15, when the Petitioner
withdrew its second request.

17. The Enlarged Board is of the view that the present
proceedings fall within the scope of the mandate of the
Chairman of the AC, which authorises him to act for the
AC until the AC’s final decision (see CA/D 14/15,
point 2).

Res judicata

18. The Respondent raised this issue in view of the
decision in case Art. 23 1/15. The Enlarged Board
considers that this case concerned procedural issues
rather than the actual “legal cause of action”. Hence
the doctrine of res judicata finds no application to
the present case.

Ne bis idem

19. The Respondent has raised this issue under two aspects.
The first aspect is that in the present case the
Respondent was the subject of the same allegations,
which were already decided upon in the earlier case

C10958 .DA

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Art. 23 1/15 and which were withdrawn in case
Art. 23 2/15.

20. The Enlarged Board considers that the first decision is
a procedural decision not on the merits of the case.
The second proceedings did not even get to the stage of
the merits, as the Petitioner withdrew its request.
These circumstances cannot be assimilated to an
“acquittal” or “conviction”. In this respect, the
Enlarged Board concludes that the present case is not
hindered by the existence of these earlier proceedings.

21. The second aspect raised by the Respondent concerns the
question of further disciplinary sanctions based upon
the same facts as were considered sufficient by the
Enlarged Board for a removal from office, such as the
proposed dismissal. This is only of relevance if the
Enlarged Board were to make a request for removal from
office. As this is not the case, (see Order, point 1,
below), there is no need to deal with this second
aspect.

Article 12a(5) RPEBA

22. Article 12a(5) RPEBA provides that a request to the
Enlarged Board shall set out all the facts, arguments
and evidence relied on. The Respondent’s objections to
the admissibility of AC Request 3 are that this request
is still not sufficiently substantiated so that the
Respondent is not in a position to know which
allegations, facts and evidence it has to respond to.

23. In AC Request 3, the five allegations maintained by the
Petitioner in the first request and by the Petitioner’s

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declaration at the oral proceedings in case
Art. 23 1/15, have been reduced to two.

24. In comparison to the first request, which was found
insufficiently substantiated, the Petitioner has made
in AC Request 3 a clearer distinction between facts,
evidence and arguments/conclusions, and has sought to
structure its request in a more logical manner. The
Enlarged Board is of the View that from AC Request 3 it
can discern what case the Petitioner is attempting to
make for the purposes of Article 12a(5) RPEBA.

25. The Petitioner stated in the oral proceedings held on
10 May 2016 (point 12 of the Minutes) that it did not
wish to pursue a request based on allegations 3, 4 and
5 that were present in its earlier requests. The
Petitioner has adopted the position that it is seeking
to remove the Respondent from office only upon the
basis of the two allegations that it has sought to
substantiate in these proceedings.

Request for summary termination

26. A summary termination of proceedings is only possible
in the light of manifest and substantial procedural
violations of such a nature as to lead to a serious
prejudice to the legal and procedural position of a
party.

27. The Respondent has argued that such violations are
present in this case due to the lack of a lawful basis
for the proceedings, the flawed composition of the DC,
its deficient opinion, the flawed disciplinary

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procedure and the flawed investigative procedure as
initiated by the AC.

28. The Enlarged Board is of the View that these issues
rather go to the quality and reliability of the
evidence gathered against the Respondent. Hence they do
not lead the Enlarged Board to the conclusion that it
should summarily terminate the proceedings.

29. The Respondent has also argued that no fair procedure
is possible given the undermining of the presumption of
innocence in his favour due to the public airing of
what can be described as the “Nazi” allegations, both
in the statement of the Office President (CA/C 19/15)
to the AC (in direct contradiction with the findings of
the DC’s opinion at para 131 and 142), and the press
campaign of October 2015. This was aggravated by the
alleged influence improperly exerted on the Enlarged
Board (meetings of 5 and 8 December 2014 with
respectively the Principal Director of the IU and the
Office President) and the clear prior endorsement by
the AC of the flawed DC’s opinion.

30. As regards summary termination of the proceedings due
to the undermining of the presumption of innocence, the
Enlarged Board does not consider itself to be
prejudiced against the Respondent by these events.
These public disclosures and statements by high-ranking
EPO officials constitute part of the factual background
to this case. For the Enlarged Board, what counts is
the reliability of the evidence gathered against the
Respondent and of the credibility of the investigation
carried out by the IU. These issues fall to be dealt
with under the merits of this case and are not such as

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to lead the Enlarged Board summarily to terminate these
proceedings.

Oral proceedings open to the public

31. According to Article 12a(9) RPEBA, unless and to the
extent that the Enlarged Board decides otherwise, the
proceedings shall not be public and shall be
confidential.

32. The Respondent himself requested that the oral
proceedings relating to the substantive merits of the
case be public.

33. The reason why the Respondent requests to have the oral
proceedings open to the public is because the
confidentiality of the proceedings has already been
breached by the Office. Public oral proceedings give
him the opportunity to explain his case and defend his
reputation.

34. The confidentiality of proceedings tends to protect the
interest of the persons concerned as well as the
Office’s interest. The Enlarged Board therefore also
has to consider whether it would be contrary to the
interest of the Office and the Organisation and the
employees in question to have the oral proceedings in
this matter open to the public.

35. Given the history of the case, in particular the fact
that the Office sought publicity for its point of view
on the matter, the Enlarged Board is of the opinion
that it is also in the interests of the Office and the
Organisation to have transparent proceedings. It should

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be avoided that the proceedings are perceived by
objective observers as expedited proceedings based on
questionable or suspect evidence, in particular as
these proceedings involve the removal of a member of
the Boards of Appeal from judicial office. In any case,
the Enlarged Board reserved to itself the power to
exclude the public from the oral proceedings, whenever
the nature of the debate made it necessary, which
corresponds to the “extent that the Enlarged Board
decides otherwise” provision of Article 12a(9) RPEBA.

THE INDEPENDENCE OF THE ENLARGED BOARD AND THE OFFICE

PRESIDENT’S LETTER OF 10 JUNE 2016

36. In his letter of 10 June 2016 (see quotations in
point XXVI. above), the Office President expressed his
View that the Enlarged Board’s decision to hold public
oral proceedings was unlawful. He further elaborated
that the Enlarged Board does not have the competence to
determine the facts in these proceedings. Finally, he
indicated that he would not hesitate to take any
appropriate steps available to him to ensure the
orderly running of the Office and the safety of its
employees in respect of the present case.

37. The making of an unlawful decision is clearly
misconduct. Hence the general, abstract threat to the
independence of the Enlarged Board resulting from the
amendment of Article 95(3) ServRegs (see para 8 to 13
above) has now crystallised as a result of the Office
President’s procedurally irregular intervention in
these proceedings.

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38. As the present case has shown, the Office President
assumes the power to investigate and to suspend members
of the Boards of Appeal and bar them from the Office.

39. In addition, he may also propose any other disciplinary
measures to the AC, pursuant to Article lO(2)(h)EPC.

40. Thus, in the presence of these facts, ascertainable by
any objective observer, all present members of the
Enlarged Board find themselves threatened with
disciplinary measures if they continue with these
proceedings in the presence of the public, and seek to
determine the facts of this case. This undermines the
fundamental principle of judicial independence as set
out in Article 23(3) EPC. Thus the conditions of
Article 23(3) EPC are not fulfilled, unless the AC as
appointing and disciplinary authority for all members
of the Enlarged Board, including its external members,
distances itself from this position of the Office
President.

41. After having been given time during the in camera
conference held on 14 June 2016 to reflect upon this
situation, the Chairman of the AC made the following
remarks in writing concerning the Office President’s
letter and enclosure of 10 June 2016:

Such a communication does not emanate from a party to
the proceedings. In View of the fact that the
Administrative Council is only represented in the
proceedings pursuant to Article 12a(2) of the rules
of procedure of the EBA, it cannot take position on a
communication from the Executive Head of the Office.

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In this respect, and as per Article 23(3) EPC, the
EBA members are not bound by any instruction but must
abide by the provisions of the EPC. This cannot be
prejudicial to them, bearing in mind that the Council
is the sole competent disciplinary authority for
them…”

42. The Petitioner in this case is the AC. The AC is the
appointing and disciplinary authority for the Office
President (the highest ranking appointee of the AC), as
well as for the members of the Enlarged Board, (the
highest judicial authority of the EPO). The Petitioner
thus has an institutional obligation to clarify whether
it endorses or not the Office President’s position as
set out in his letter of 10 June 2016 and referred to
above.

43. For the Enlarged Board to be able to continue with
these proceedings the position of the Petitioner would
have to be that it did not agree with the Office
President and acknowledged that, from an institutional
point of View, the pressure exercised by the Office
President in the present case was incompatible with the
judicial independence of the Enlarged Board guaranteed
by the EPC. As the Petitioner did not clearly distance
itself from the Office President’s position, there is
the threat of disciplinary measures against the members
of the Enlarged Board. It is then the Enlarged Board’s
judicial independence in deciding on this case which is
fundamentally denied.

44. As can be derived from the statement of the Chairman of
the AC, there was no clear and unequivocal declaration

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that the AC distanced itself from (or did not share)
the Office President’s position. In such a situation,
the Enlarged Board cannot legally continue with these
proceedings. As a consequence it cannot make a proposal
to the Petitioner to remove the Respondent from office.

45. Thus to summarise, the Enlarged Board was reduced to
the following alternatives:

either,
to take an “unlawful decision”;

or,
to take a “lawful decision” according to the
demands of the Office President, i.e. setting
aside its decision on the public oral proceedings
and taking as granted the facts established in the
IU Report and/or the DC’s opinion.

46. In either case, the respective decision would be
inherently vitiated because it would have been made
under pressure from the executive and without the
serenity and independence needed for a fair trial.

47. The intervention of the Office President, and this
intervention alone, prevented the Enlarged Board from
continuing the proceedings as had been planned, (see
above points XVI to XXI), from examining the case on
its substantive merits as put forward by the Petitioner,
and from establishing whether serious grounds for the
removal from office of the Respondent existed in
accordance with Article 23(1) EPC.

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Respondent’s request that this decision deal with certain

issues by way of obiter comments

48. In its letter of 24 November 2015 the Respondent set
out nine requests which it has repeated mutatis
mutandis in the present proceedings.

49. These requests may be divided into four categories.
Category 1: Requests that are now without purpose
Request II, that the request that initiated the current
proceedings be withdrawn.

As the Enlarged Board will not make a proposal to the
AC for the removal from office of the Respondent, this
request is now without purpose.

Category 2: Requests that fall outside of the
competence of the Enlarged Board in these proceedings
Request IV, that the house ban be rescinded.

The Office President, who decided upon the house ban,
is not a party to these proceedings. The Enlarged Board
does not have a respective jurisdiction over him, nor
is the house ban itself a subject of these proceedings.
Request VI, that the Respondent be reinstated with
immediate effect as a member of the Boards of Appeal;
and

Request VII, that the Enlarged Board make a legally
binding order to the effect that the investigation and
disciplinary procedures, and the procedures before the

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Enlarged Board with reference numbers Art. 23 1/15 and
2/15 shall constitute no obstacle for reappointment
following the current appointment period which expires
on 31 December 2017. Further that all documents
associated with the aforementioned procedures shall be
removed from the Respondent’s personnel file.
The Petitioner is the appointing authority for the
members and chairmen of the Boards of Appeal. Its
exercise of this authority is outside the competence of
the Enlarged Board and is beyond the scope of these
proceedings.
Request IX, that an award of moral and or exemplary
damages shall be made, in the amount of at least one
gross annual salary.
The Enlarged Board does not have the power to order
such an award.
Category 3: Independence of Enlarged Board proceedings
from disciplinary proceedings
The Enlarged Board cannot grant the following requests
of the Respondent because of the present proceedings
being independent from any disciplinary proceedings
(Article 12a(8) RPEBA):
Request I, that the disciplinary procedure D 1/15
before the AC is to be terminated without prejudice to
the Respondent; and
Request III, that the suspension be lifted; and

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Request V, that all withheld components of remuneration
are to be repaid with interest.

Category 4: Requests that the Enlarged Board may deal
with

Request VIII, that all costs of the proceedings, in
particular the cost of legal representation shall be
borne by the EPO. For this request, see below.

Request for reimbursement of costs

50. The Petitioner referred to Article 12a(10) RPEBA and
stated that it would leave it to the Enlarged Board to
decide on this matter.

51. Pursuant to Article 12a(10) RPEBA, the Enlarged Board
may on request propose the reimbursement of some or all
of the costs incurred in the proceedings by the
Respondent if the request to make a proposal for
removal from office has been rejected.

52. The Enlarged Board has decided not to make a proposal
for removal from office of the Respondent; therefore
reimbursement is proposed.

Request for publication

53. The Respondent contended that public declarations have
been made in the press that are detrimental to him. In
order to offset that, he requested the publication of
the present decision.

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54. According to Article 18(3) RPEBA, the final decision of
the Enlarged Board in proceedings under Article 23(1),
first sentence, EPC, may be published, due regard being
taken of the confidentiality of the proceedings.

55. In the present case the Enlarged Board has made a final
decision that it does not make a proposal for removal
from office of the respondent.

56. The decision is to be published.

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Order
For these reasons it is decided that:

1. The Enlarged Board of Appeal does not make a proposal
for removal from office of the Respondent.

2. Reimbursement of all costs incurred by the Respondent
in the present proceedings before the Enlarged Board of
Appeal is proposed.

3. The decision in case Art. 23 1/16 is to be published.

The Registrar:

N. Crasborn

The Chairman:

M.-B. Tardo-Dino

The above was the result of quick and dirty OCR. We should stress strongly that for accuracy readers must look at the original PDF and bear in mind that this ‘masterpiece’ might force the dismissal or resignation of Battistelli, unless he has the skin of an elephant and enough ‘brought’ delegates in his pocket (like Clinton with her biased/corruptible superdelegates). █

Update: While still working on the text some people told us that IP Kat had published a portion of the text (not highlighted in yellow above) and added these remarks about the original: “Merpel has now got her paws on several copies of the Enlarged Board of Appeal’s decision in the latest round of the “House Ban” disciplinary action (reported here). If you like your IP decisions to be explosive, then she can’t recommend it highly enough. The case reference is Art. 23 1/16, incidentally.

“Readers can access the document here. It arrived in several copies today thanks to a number of correspondents who would no doubt prefer not to be identified, for reasons of modesty and career security. The decision is marked for “Publication in OJ”, but the Board notes with admirable deadpan that its orders in the two earlier sets of proceedings, to publish those earlier decisions “have not yet been executed by the competent authorities of the Office.”

“It was already known that this third set of proceedings collapsed due to what was seen as an improper intervention by Mr Battistelli, the EPO President, regarding a decision by the EBA to hold oral proceedings in public, and that this was aggravated by the fact that the Administrative Council refused to distance itself from the actions of Mr Battistelli. Bear in mind, in what follows, that Mr Battistelli was not party to these proceedings, which were instigated by the Administrative Council (“Petitioner”) and the only other party was the impugned Board Member (“Respondent”).”

Her concluding words are that “some AC delegates will not be fans of this decision (this being their third rebuff from the Enlarged Board in relation to a single disciplinary matter). Bear in mind that the AC was already given the opportunity to distance itself once from Mr Battistelli’s actions and did not do so, or at least not unambiguously. One must assume that Mr Battistelli still enjoys the love and support of at least a faction within the AC (though Merpel hears that the faction shrinks at each meeting…).”

Well, see the above about Albania, which is one among many (we gave other possible examples in the past). We urge readers to contact their representatives and German readers to contact Heiko Maas.

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