10.08.21

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The EPO’s Overseer/Overseen Collusion — Part VI: A Distinct Lack of Dutch Courage

Posted in Europe, Patents at 5:24 pm by Dr. Roy Schestowitz

Series parts:

  1. The EPO’s Overseer/Overseen Collusion — Part I: Let the Sunshine In!
  2. The EPO’s Overseer/Overseen Collusion — Part II: A “Unanimous” Endorsement?
  3. The EPO’s Overseer/Overseen Collusion — Part III: Three Missing Votes
  4. The EPO’s Overseer/Overseen Collusion — Part IV: The Founding States
  5. The EPO’s Overseer/Overseen Collusion — Part V: Germany Says “Ja”
  6. YOU ARE HERE ☞ A Distinct Lack of Dutch Courage

Guus Broesterhuizen and his deputies Paul van Beukering and Derk-Jan de Groot
The Netherlands delegation: Guus Broesterhuizen and his deputies Paul van Beukering and Derk-Jan de Groot.

Summary: The “Strike Regulations” long protected by António Campinos (for more than 3 years) were supported by the Dutch delegation despite being unlawful; we take a look back at the people who made these illegal policies possible

We now turn to the delegation representing the EPO‘s second host state, the Kingdom of the Netherlands.

In June 2013 the Dutch delegation was headed by Guus Broesterhuizen, director of the Netherlands IPO.

“In June 2013 the Dutch delegation was headed by Guus Broesterhuizen, director of the Netherlands IPO.”At the 136th Meeting of the Administrative Council, Broesterhuizen was accompanied by his deputy Paul van Beukering from the Ministry of Economic Affairs and his designated successor Derk-Jan de Groot, head of the Patent Division at the Netherlands IPO.

Given that the Dutch delegation developed a reputation for being openly critical of Benoît Battistelli‘s “reign of terror” at the EPO and his nefarious influence over the smaller contracting states, it’s a bit surprising at first glance to see that they voted in favour of the “Strike Regulations” in June 2013.

The most likely explanation here is that this was due to the influence of the head of the delegation at the time, Guus Broesterhuizen.

Battistelli-and-Kongstad-in-the-Hague
Broesterhuizen (right) whooping it up with Battistelli and Kongstad in the Hague in 2010 [PDF] accompanied by Chris Buijink (left) from the Dutch Ministry of Economic Affairs.

Broesterhuizen was a member of the Council’s “old guard”. He was a longtime chairman of the Administrative Council’s Budget and Finance Committee and he seems to have been “best buddies” with Battistelli and Kongstad.

“Broesterhuizen was a member of the Council’s “old guard”. He was a longtime chairman of the Administrative Council’s Budget and Finance Committee and he seems to have been “best buddies” with Battistelli and Kongstad.”For example, just after Battistelli had taken up his new post at the head of the EPO, Broesterhuizen organised an event to celebrate one hundred years of Dutch Patent Law where he played host to Battistelli and Kongstad. This event took place on the margins of the 125th meeting of the Council held in The Hague in October 2010. [PDF]

The key fact to be noted here is that the 136th meeting of the Council in June 2013 was Broesterhuizen’s last EPO engagement before his retirement the following month. Back in those days, retiring Council delegates didn’t normally go on to be appointed as EPO Vice-Presidents.

The minutes of the meeting record that “the Chairman [Kongstad] and the President [Battistelli], on behalf of the Council and the Office respectively, paid tribute to Guus Broesterhuizen, head of the Netherlands delegation and former chairman of the Budget and Finance Committee (June 2009 to June 2012), who was attending his final Council meeting before retirement, and wished him well for the future”.

Kongstad’s speech in honour of Broesterhuizen is annexed to the minutes.

“The key fact to be noted here is that the 136th meeting of the Council in June 2013 was Broesterhuizen’s last EPO engagement before his retirement the following month.”Broesterhuizen was succeeded as head of delegation by the new director of the Netherlands IPO, Derk-Jan de Groot. Paul van Beukering from the Ministry of Economic Affairs continues to serve as the deputy head of delegation.

The critical stance of the Dutch delegation towards Battistelli’s France-Télécom-style excesses at the EPO is something which really only developed after Broesterhuizen’s departure.

It should not be forgotten that back in June 2013 – the Netherlands was doing quite nicely from Battistelli’s presidency.

Wim van der Eijk
Wim van der Eijk, the successful Dutch candidate for the position of Vice-President in charge of the Boards of Appeal was appointed to this position in 2011.

To begin with, back in November 2011, the Netherlands had succeeded in getting its candidate selected for one of the top EPO management positions when Wim Van der Eijk was appointed as Vice-President of the Boards of Appeal. [PDF]

EPO-New-Main-building-in-Rijswijk
Laying of the foundation stone for the EPO’s New Main building in Rijswijk in June 2014. [PDF]
The tendering process was well under way by mid-2013.

In addition to this, the “New Main” building project in The Hague was in the pipeline.

“It should not be forgotten that back in June 2013 – the Netherlands was doing quite nicely from Battistelli’s presidency.”Although the foundation stone would not be laid for another year (on 25 June 2014), the tendering process [PDF] was well under way in mid-2013 and the contract would be eventually signed in September of that year. [PDF]

Battistelli-Dutch-Queen
Battistelli trots behind the Dutch Queen at the European Inventor Award ceremony in Amsterdam on 28 May 2013.

Finally, in 2013 the Netherlands was a beneficiary of Battistelli’s European Inventor Award boondoggle which took place in Amsterdam [PDF] on 28 May, shortly before the 136th Meeting of the Administrative Council in June.

“The social conflict inside the EPO, although simmering in the background, had not yet boiled over into the public domain to any noticeable extent.”So in June 2013 the Dutch delegation had much reason to be satisfied with the interim “results” of Battistelli’s presidency and had no major grounds for complaint.

The social conflict inside the EPO, although simmering in the background, had not yet boiled over into the public domain to any noticeable extent.

The Dutch vote in favour of Battistelli’s “Strike Regulations” at the 136th meeting of the Administrative Council in June 2013 seems to have been a final act of loyalty on the part of Broesterhuizen towards his old “buddies” Battistelli and Kongstad.

Broesterhuizen’s little favour to his “buddies” subsequently contributed to a huge amount of political fallout in his home country.

“During the litigation procedure, the Gerechtshof den Haag (Appeal Court of The Hague) decided that breaches of fundamental rights by EPO management were so severe that they justified lifting the organisation’s immunity from jurisdiction.”The controversial “Strike Regulations” which Broesterhuizen helped to rubber-stamp in 2013 were one of a long litany of grievances which the EPO staff union SUEPO attempted to litigate before national courts in the Netherlands.

During the litigation procedure, the Gerechtshof den Haag (Appeal Court of The Hague) decided that breaches of fundamental rights by EPO management were so severe that they justified lifting the organisation’s immunity from jurisdiction.

In a judgment delivered on 17 February 2015, the Appeal Court ordered the EPO [PDF] to rescind several amendments to the organisation’s staff regulations, including undue restrictions on industrial actions imposed by the “Strike Regulations” of 2013.

“This judgment was a major source of public embarrassment to Battistelli.”In addition to this, the EPO was ordered by the court to uphold the rule-of-law and social dialogue standards in line with the European Convention on Human Rights and ILO Conventions No. 87, on the right to organise in trade unions, and No. 98 on the right to collective bargaining. [PDF]

This judgment was a major source of public embarrassment to Battistelli. In a bizarre and absurdly comical “damage limitation” exercise, he got his senior management team to subscribe to a statement under the heading “No, the EPO is not violating fundamental human rights” (warning: epo.org link) which was published on the EPO’s website on 18 March 2015.

In addition to Battistelli, the statement [PDF] was signed by EPO Vice-Presidents Guillaume Minnoye, Alberto Casado, Željko Topić and Raimund Lutz, the Principal Director of Human Resources Elodie Bergot, as well as Francisco del Pozo (Principal Director Finance), René Kraft (Chief Information Officer) and Aidan Kendrick (Principal Director Controlling Office).

“This long-drawn-out high-profile legal affair had revealed the serious and ongoing breaches of fundamental rights by EPO management and exposed them to the glare of public scrutiny.”The Appeal Court judgment was a thorn in the flesh not only for Battistelli but also for the Dutch government because it set an uncomfortable precedent with respect to the limits of the “immunity” enjoyed by the large number of international organisations which are based in the Netherlands.

In the end the Dutch government joined forces with the EPO in support of an application for “cassation” of the Appeal Court judgment. Finally, on January 2017, the Dutch Supreme Court ruled that Dutch courts had no jurisdiction in the EPO dispute.

Although SUEPO ultimately lost the legal battle before the Dutch courts, it nevertheless won a significant moral victory. This long-drawn-out high-profile legal affair had revealed the serious and ongoing breaches of fundamental rights by EPO management and exposed them to the glare of public scrutiny.

The affair also seems to have played a significant role in convincing Broesterhuizen’s successor on the EPO’s Administrative Council, Derk-Jan de Groot, that Battistelli was not to be trusted.

“The finding of the Appeal Court to the effect that Battistelli’s “Strike Regulations” were incompatible with international legal standards was ultimately vindicated by the ILOAT over six years later when the Tribunal struck down these manifestly unlawful measures on 7 July 2021.”It’s also important to realise that the ruling of the Dutch Supreme Court did not negate the material findings of the Appeal Court concerning breaches of fundamental rights by EPO management. It simply said that the Appeal Court should have refrained from adjudicating the matter and that it should not have decided to lift the EPO’s immunity.

The finding of the Appeal Court to the effect that Battistelli’s “Strike Regulations” were incompatible with international legal standards was ultimately vindicated by the ILOAT over six years later when the Tribunal struck down these manifestly unlawful measures on 7 July 2021.

By that time Broesterhuizen had long since sailed off into the sunset and was devoting his time and energy to various worthy activities, including as acting as a “Certified OCG Gateway reviewer” and a member of the notoriously dysfunctional EPO Internal Appeals Committee.

“In the next part we will take a look at the delegation representing the Netherlands’ smaller neighbour, the Grand Duchy of Luxembourg.”In addition to that, he acts as treasurer for the Leiden branch of the Dutch Red Cross and as a chairman of the board of Stichting govroam, an initiative similar to eduroam which aims to provide wireless/Wi-Fi roaming service for public services and governmental administrations.

As he enjoys his retirement in the Netherlands, Brotesterhuizen is probably not even aware of the damage which his actions as an Administrative Council delegate caused – both to the reputation of the EPO and to the legitimate interests of its staff.

In the next part we will take a look at the delegation representing the Netherlands’ smaller neighbour, the Grand Duchy of Luxembourg.

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