12.12.17

Carl Josefsson Lets Judge Patrick Corcoran Come Back to Work at the EPO

Posted in Europe, Patents at 12:21 am by Dr. Roy Schestowitz

Photo credit: Bird & Bird, 2015

Summary: After initial reluctance to obey/respect the rulings from the ILO (security staff declining access) there is official permission for Patrick Corcoran to enter and resume work (following 3 years of injustice against him)

ONE year ago Carl Josefsson was put in charge [1, 2] of the appeal boards at the EPO. Josefsson, as we noted a day ago, is said to have brought Judge Corcoran back in (at least into Haar; “Not clear about other sites,” a source told us).

We now have the text related to this. To quote:

In a post on the internal page of the Boards of Appeal, dated today, the following can be read:

11.12.2017
Execution of ILOAT judgements

The President of the Boards of Appeal has reistated a member of the Boards of Appeal as of Monday, 11 December 2017, in execution of the judgements No. 3958 and 3960 of the Administrative Tribunal of the International Labour Organisation of 6 December 2017.

Carl Josefsson
President of the Boards of Appeal

There was another article related to this which was published yesterday and said:

He had alleged that the Administrative Council had imposed several measures on him in relation to an alleged misconduct. These included suspension, a “house ban”, a blocking of his EPO user ID, and a request for him to relinquish all EPO property.

The ILOAT awarded the suspended EPO member material damages in an amount equal to the deductions from his remuneration, and moral damages.

It also ordered the EPO to immediately allow the complainant access to the EPO premises and resources, to return any EPO property it requested him to hand over and to unblock his user ID.

So after some pressure there was apparently compliance, too. It remains to be seen if the contract is renewed. Yesterday SUEPO published an outline of this case (and others) in the form of a PDF, which we’ve converted manually to HTML:

11 December 2017
su17024hp

Analysis of the EPO cases issued during ILO-AT extraordinary session of December 6th 2017

Judgment No. 3972

This involved a case where a staff member on certified sick leave was charged, inter alia, with unauthorised absence, failure to cooperate with medical procedures and to be present at normal place of residence as constituting misconduct. After an in absentia disciplinary proceeding, the staff member was dismissed from service.

On appeal, the Tribunal held that the staff member’s actions and behaviour may have been manifestations of a medical condition. The Tribunal specifically noted that the medical evidence before the Disciplinary Committee (and the President) clearly pointed to a conclusion that, at least by the time the Disciplinary Committee was deliberating, the staff member was suffering from a serious medical condition.

Under such circumstances, the Tribunal held that the EPO had a duty of care to order a medical assessment of the staff member’s health condition, so as to determine a nexus between that condition and the staff member’s actions. The EPO’s failure to do so amounted to a breach of duty of care and its response was held by the Tribunal as being inadequate.

Based on the following, the Tribunal has sent the case back to the EPO with instructions for the DC to consider whether the alleged misconduct can be entirely explained by the staff member’s health condition (which the DC ought to do by requesting a medical assessment). EPO has also been asked to assess whether the staff member was entitled to benefits based on an invalidity stemming from the medical condition and service with the EPO. The staff member has been awarded 20,000 Euros moral damages for the moral injury suffered on account of the unlawful dismissal. Costs were awarded at 1000 Euros.

Judgments No. 3958 and 3960

These involved the cases of a member of the Boards of Appeal being suspended and his suspension being extended, pending the completion of disciplinary proceedings against him. These proceedings were in respect of allegations of misconduct which, inter alia, related directly to the President (such as allegations

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of spreading defamatory statements against the President). In arriving at these decisions, the Administrative Council was advised by the President, who was involved in the decision making process.

The Tribunal stated that the question of the President’s conflict of interest represented a threshold substantive issue in this case. The Tribunal stated that a conflict of interest occurs in situations where a reasonable person would not exclude partiality, that is, a situation that gives rise to an objective partiality. Even the mere appearance of partiality, based on facts or situations, gives rise to a conflict of interest.

In the present case, there is a conflict of interest on the part of the President. This stemmed from the fact that the alleged serious misconduct, with which the complainant was charged, might reasonably be thought to have offended the President specifically, directly and individually. This situation, by itself, casts doubts on the President’s impartiality. Considering the whole situation, the Tribunal held that a reasonable person would think that the President would not bring a detached, impartial mind to the issues involved.

To the President’s participation in the procedure against the complainant citing the EPO internal laws which provide for his participation in the Administrative Council’s decision, the Tribunal held that the question of a conflict of interest only arises if the official is competent. Accordingly, the question of competency is not an answer to a charge of a conflict of interest. Therefore irrespective of what the internal laws provided for, there was a clear conflict of interest on the part of the President.

As for the house ban against the complainant, the Tribunal held that the President was wrong in stating that he was the final authority in imposing house bans. In so far as it relates to an employee appointed by the Administrative Council, that authority rests with the Council alone and not the President.

The Tribunal quashed both the decisions of the Administrative Council (the suspension, the extension of the suspension, the house ban, the relinquishment of EPO property previously at the complainant’s disposal and the blocking of his UserID). It has ordered that the Complainant shall be immediately reinstated in his former post. EPO has been ordered to immediately allow the complainant access to the EPO premises and resources, return to him any EPO property it requested him to hand over pursuant to his suspension and immediately unblock his UserID. EPO has also been ordered to pay the complainant material damages in an amount equal to the deductions from his remunerations, together with interest at the rate of 5 per cent p.a. Moral damages in the amount of 25,000 Euros (for both cases) and costs in the amount of 10,000 Euros (for both cases) have also been ordered.

Claims relating to Circular No. 342 and Data Protection Guidelines violations, as well as procedural violations during investigation, were held as being irreceivable, as they did not relate to a final decision.

Judgments 3895 and 3896

In Judgments 3694 and 3785, the Tribunal sent back the cases to the EPO so that the Appeals Committee, composed in accordance with the applicable rules, may examine the appeal. The decision was founded on the fact that the Appeals Committee was not composed in accordance with the applicable rules, in force at the time, set out in Article 36(2)(a) and 111(1)(a) of the ServRegs. The EPO amended Article 36(2)(a) of the ServRegs regarding the competence of the CSC as one of the measures to implement Judgment 3785. The Complainants filed an application for interpretation of Judgment 3785, interpretation and execution of Judgment 3694. They requested the Tribunal to clarify whether ‘the applicable rules’ as referred to are to be understood as the rules that were governing the composition of the Appeals Committee at the time of the internal appeal or when the judgment was delivered. The Tribunal has held that this refers to the procedural rules in force at the time of the execution of the judgment (i.e. the new examination of the appeal). In saying this, the Tribunal did not express a view about the lawfulness of the new provisions. The important question was therefore clarified. Otherwise, the applications were dismissed. The consequence of these decisions is that when cases are sent back to the EPO to be heard by the Appeals Committee, they will be heard by the Committee constituted under the new regulations in force. Whether the rules themselves are lawful still remains to be seen.

Benoît Battistelli and his friend Mr. Campinos have meanwhile received a copy of an open letter to the Council (top delegates to it) and here is the full thing, which makes the obvious observations:

To the Heads of Delegations of the
Administrative Council

To the Heads of Delegations the Board of
the BFC

OPEN LETTER

Should future reforms be left to a President having this record of performance?

Date: 07.12.2017

Dear Heads of Delegations,
On 6 December 2017, the ILO Administrative Tribunal delivered Judgments 3958 and 3960 in which it ordered the immediate reinstatement of a suspended member of the Boards of Appeal (BoA). With the early public delivery of these judgments in an exceptional session, in advance of the regular publication date of 24 January 2018, the Tribunal wanted to stress their significance for the Organisation, especially the Administrative Council (AC), just before the AC meeting on 13-14 December.

The Tribunal set forth that the AC based its decisions on the reasons provided by the President of the Office, who had a conflict of interest casting a doubt on his impartiality, and also that “the Administrative Council erred in not finding that the President had a conflict of interest in the matter”¹.

We cannot help but interpret the judgments both as a massive motion of no confidence in the President of the Office and a warning letter to the AC.

A decision on disciplinary case D1/15, concerning the now reinstated member of the BoA, is tabled, as a confidential session item, on the agenda of the December AC meeting. It transpires from the judgments² that the Council was misled about essential points when it relied on the proposals of the President of the Office. It also transpires that the Council should have been aware of this. Deciding case D1/15 on the basis of

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¹ See consideration 13 of Judgment 3958 and consideration 7 of Judgment 3960
² See considerations 3 and 5 of Judgment 3960

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documents and proposals originating from the President of the Office (but without his presence, as ruled out in the judgments) will certainly be a challenge.

We have repeatedly warned against the content and pace of major reforms which have been pushed through without genuine consultation. These reforms have resulted in staff resistance, even up to the point of flooding the Tribunal³. The Tribunal has now announced that some aspects of the reforms will be scrutinised after the AC has made a decision on the disciplinary case ⁴:

- reform of the Boards of Appeal, especially the crucial issue of the independence of the members, as enshrined in Article 23 EPC⁵;
- reform of the justice system, including lawfulness of the investigation procedures; and
- data protection.

The AC decision in case D1/15 will also have consequences in pending national proceedings before the German Constitutional Court (Bundesverfassungsgericht) which concern the EPC and the standing and independence of the BoA.

The judgments do not address the governance problem. In March 2016, the AC adopted resolution CA/26/16 asking for “reinforcement of the AC secretariat and a clarification of its position in terms of governance”. We respectfully suggest that the AC reflect again on this as soon as possible and act accordingly, with the highest priority.

The President of the Office is currently trying to force further decisions on the AC “au pas de charge”, namely:

- new Investment Guidelines of the European Patent Office (CA/F 18/17 Rev.1) for the treasury money (€2,4 billion!) and
-de facto replacement of permanent employment (as enshrined in Article 33 EPC) by chains of fixed-term employment periods, with a so-called “modernisation of the employment framework” in CA/121/17.

Prior to the publication of the judgments, the President of the Office managed to convince the AC to convene two exceptional BFC meetings⁶
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³ The Chair of the AC declared that Mr Battistelli had been “heavy-handed” when pushing his reforms.
⁴ See consideration 14 of Judgment 3958
⁵ See consideration 9 of Judgment 3960
⁶ See B28/10/17

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2/3in order to enable him to get his latest proposed reforms approved before the end of his reign in June 2018.

The ball is now with the AC, which urgently has to answer the following question: should these reforms be left to a President and team having such a record of performance?

Yours sincerely,

Chairman of the Central Staff Committee

cc.: Mr Benoît Battistelli; President of the EPO
Mr Antonio Campinos; President-elect of the EPO Council

There’s an EPO protest tomorrow. If anyone takes photos, please consider sending these to us (to accompany our coverage with them and document the unrest). We process the images to guard sources. █

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