Bonum Certa Men Certa

The EPO’s Investigative Unit Exposed: Part II

Benoît Battistelli created a shady, unaccountable army

Cobra



Summary: How the President of the European Patent Office got his own private mercenaries, who can outrageously enough ignore European laws and human rights, in order to guard his unprecedented tyranny

"In March 2013," told us a source, "EPO staff representatives submitted their concerns about Circular No. 342 to the Administrative Council in the document CA/33/13."



Circular No. 342 was the subject of Part I (textual copy was cited/attached) and here is the response to it [PDF], along with context in the PDF (scroll down to the bottom). Our emphasis is added in yellow to better suit quick readers:

CA/33/13 Orig.: en

Munich, 12.03.2013

SUBJECT: Investigations Guidelines of the EPO SUBMITTED BY: President of the European Patent Office ADDRESSEES: Administrative Council (for information)




SUMMARY

This document is submitted by the staff representatives via the President of the European Patent Office, in accordance with Article 9(2.2)(b) of the Administrative Council's rules of procedure (see CA/D 8/06).

Recommendation for publication: No, in view of possible ongoing legal disputes.




On 01.01.2013 the Office adopted Guidelines for the investigation of fraud, misconduct and harassment. These Investigative Guidelines give excessive powers to the President of the EPO and to the Investigation Unit. The Investigation Guidelines fail to provide staff with basic protection against self-incrimination, incrimination of family members and violation of private property, including the home. The level of evidence required, "on the balance of probabilities" (i.e. more likely than not) is insufficient in view of the potentially grave consequences, including dismissal.

It has to be clarified if the Investigation Guidelines are in contradiction with international law, namely the European Convention on Human Rights (ECHR) and the Universal Declaration of Human Rights.




TABLE OF CONTENTS

I. INTRODUCTION II. BACK-GROUND III. MAIN ISSUES A. NO LIMITATION TO THE PRESIDENT'S POWERS TO ORDER INVESTIGATION B. NO PROTECTION AGAINST SELF-INCRIMINATION OR INCRIMINATION OF FAMILY MEMBERS. C. NO PROTECTION OF PRIVATE PROPERTY D. INSUFFICIENT LEVEL OF PROOF E. LACK OF TRANSPARENCY F. NO LEGAL ASSISTANCE DURING HEARINGS IV. CONCLUSIONS AND REQUEST ANNEX 1 CIRCULAR NO.342 ("GUIDELINES FOR INVESTIGATIONS OF THE EPO")




I. INTRODUCTION

The Central Staff Committee welcomes the initiative of the President of the EPO to establish a Code of Conduct, a Staff Dignity Policy and Investigation Guidelines. Present Circulars 341 ("Formal procedure on staff dignity") and 342 ("Guidelines for Investigations of the EPO") fail, however, to provide the right protection needed and furthermore may infringe fundamental human rights. The present document concentrates on Circular 342 (investigation guidelines), but many of the shortcomings also apply to Circular 341.

II. BACK-GROUND

In all the EPO's Member States a clear separation of power between the legislative and the operative exist. Amongst the typical safe-guards that apply is, for example, the need for a search warrant for the police to be able to enter private property.

In the EPO no such separation of powers exists. The President is in the EPO head of Internal Audit who act as the "internal police". He is also the ultimate "judge", deciding whether disciplinary measures will be taken or not. In so deciding he is not obliged to follow the recommendations of the disciplinary boards. The strong powers of the President and the Investigative Unit that reports to him are not in any way balanced by safeguards for staff subject to or involved in investigative processes. The most serious flaws are listed below. More can be found in the opinion of the General Advisory Committee (Annex 1).

III. MAIN ISSUES

A. NO LIMITATION TO THE PRESIDENT'S POWERS TO ORDER INVESTIGATION

Circular 342 foresees two triggers for the investigative process:

a) an allegation of misconduct (Art. 9(2)), or b) a request by the President (Art. 9(3)).

Such a request by the President does not require a suspicion of misconduct or other justification. According to Arts. 10 and 11, allegations of misconduct are subject to initial review and preliminary evaluation before an investigative process is started. This is not the case for requests by the President. In fact, there is nothing in the Guidelines that would hinder the President of investigating whom he wants and how he wants, with or without informing the subject of the investigation.

B. NO PROTECTION AGAINST SELF-INCRIMINATION OR INCRIMINATION OF FAMILY MEMBERS.

Circular 342 does not foresee a right to remain silent. On the contrary: according to Art. 8(1) "All persons covered by ... this Circular shall be obliged to co-operate fully with the investigative unit". According to Art. 8(3) of the Guidelines as adopted, "failure to co-operate without legal justification" may constitute misconduct and hence expose the person concerned to disciplinary proceedings. Neither the Service Regulations nor the Guidelines provide any legal basis for non-co-operation: the duty to co-operate thus seems absolute.

C. NO PROTECTION OF PRIVATE PROPERTY

The Guidelines explicitly foresee search and seizure of all data and materials owned by the Office or present on its premises. There is no protection against access to private material (e.g. personal mobile phones) or confidential information (e.g. medical file, appeals procedures) other than, in some specific cases, prior authorisation of the Data Protection Office. Such prior authorisation can be dispensed with if this would risk to "jeopardise the investigation". The Circular expressly foresees access to evidence located outside the Office premises (Art. 16(9)). It is stipulated that for this the investigate unit "must abide by all the applicable provisions of local law or (sic!) obtain prior written permission from the individual concerned". In view of the duty to co-operate fully (see above), it would seem that such written permission cannot be refused. Hence it would seem that investigators appointed by the EPO can search and size private property without regard of national law.

D. INSUFFICIENT LEVEL OF PROOF

The results of the fact-finding of the investigative unit form the basis for further decisions, ultimately taken by the President. If the investigative unit finds that fraud, misconduct or harassment has occurred, this could lead to disciplinary proceedings and ultimately dismissal. According to Art. 18(4)(ii), the investigative unit will base its conclusions "on a preponderance of the evidence", i.e. a merely greater than 50% likelihood that fraud, misconduct or harassment has occurred. This is an unacceptably low level of proof given the potentially serious consequences.

E. LACK OF TRANSPARENCY

According to Article 18(7) "the subject of an investigation shall receive a copy of the report if and when, on the basis of the report, disciplinary proceedings are initiated", meaning that an investigative report on a person may exist without his or her knowledge of the contents. This would not seem acceptable in any European state in 2013.

F. NO LEGAL ASSISTANCE DURING HEARINGS

The subject of an investigation does not have the right of legal assistance of his own choosing (e.g. from outside the office) during hearings. This is in contradiction to article 6 paragraph 3(c) of the ECHM.

IV. CONCLUSIONS AND REQUEST

The CSC is of the opinion that the Guidelines for Investigations confer excessive powers to the President of the EPO and the Investigative Unit without providing the corresponding guarantees and safeguards for staff as normally provided by national law in the EPO Member States.

The CSC doubts whether the Guidelines as they currently stand are in accordance with Art. 12 of the Universal Declaration of Human Rights:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

The CSC also doubts whether the Guidelines as they currently stand are in accordance with the European Convention on Human Rights (ECHR):

Article 8 Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 6 Right to a fair trial

[...]

3. Everyone charged with a criminal offence has the following minimum rights:

[...]

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

The CSC therefore requests an independent legal evaluation of Circulars 341 and 342 of to answer the following questions:

(a) are Circulars 341 and 342 in compliance with international human rights conventions, and

(b) do Circulars 341 and 342 afford staff of the EPO a level of protection against arbitrary interference with his or her privacy, family, home or correspondence that is equivalent to that provided in the EPO Member States?

The Central Staff Committee


As anyone who has read through the above text can certainly see, this is quite a coup d'état by Benoît Battistelli. It may seem unthinkable that he can get away with it, but he did. Somehow he did.

"The Council seems to have ignored these submissions," the source told us, "because there is no available record of any response having been made."

This is also the response received after Transparency International was called to intervene, whereupon it wrote to Jesper Kongstad (definitely not a popular person inside the EPO) and never received a response thereafter (that was before the doors revolved, perhaps even twice).

"In part III we are planning to look deeper into the EPO and step into the chambers of the notorious I.U.""The bottom line here," explained our source, "is that due to the apparent inaction of the Administrative Council, the President has succeeded in single-handedly imposing on the EPO a system which places unlimited power into his own hands and there is no effective system of checks and balances to prevent abuse.

"This situation is contrary to the spirit of the European Patent Convention which envisaged a European Patent Organisation based on the classical tripartite "separation of powers" model à la Montesquieu.

"From the minutes of the Diplomatic Conferences which led to the signing of the Convention in its final form in 1973, it its clear that the drafters envisaged a tripartite system consisting of a legislative body (the Administrative Council), an executive body (the Office administration headed by the President) and a judicial or quasi-judicial body (the Boards of Appeal).

"The tripartite model of governance doesn't appear to be to the liking of the current President whose preference seems to be for a more centralised autocratic system.

"The current dysfunctional developments in EPO governance were already commented upon by a number of external observers back in December 2014. For example, the German patent attorney Thorsten Bausch wrote an article entitled "Que le pouvoir arrête le pouvoir – >From Montesquieu to Battistelli" dealing with the perceived breach of the principle of the separation of powers by the President.

"Further critical observations in a similar vein have been made recently by Siegfried Broß, a retired judge of the German Federal Constitutional Court.

"The most puzzling aspect of the current situation is the role of the Administrative Council. It is unclear why they have permitted such an unfettered concentration of power in the hands of the EPO President contrary to the fundamental principles enshrined in the EPC. Either they understand what is going on and are actively colluding in it or else the President has been very successful in pulling the wool over their eyes. Whatever the truth of the matter may be, it is very difficult to avoid the impression that the Administrative Council is failing to fulfill its institutional role as envisaged by the drafters of the EPC."

In part III we are planning to look deeper into the EPO and step into the chambers of the notorious I.U. Therein we may find reasonably good explanations for at least some of the many suicides (casualties of war, namely Battistelli's war on dissent or perceived opponents).

Recent Techrights' Posts

The Local Staff Committee Munich (Representation of the EPO's Staff) Explains When Cluster of Pregnancies May Result in Reduced Pay
"...even one week of part-time working is sufficient to reduce the salary you perceive during the entirety of your maternity leave."
Another Black Eye for 'Secure Boot', Microsoft Media Tries to Blame "Linux"
It enables Microsoft to remotely control computers, even computers that don't run Windows and never had any Microsoft software installed
Slopwatch: UbuntuPIT, linuxsecurity.com, and Various Slopfarms in Google News Attacking "Linux"
A new survey of the Web said that the majority of the Web is now slop (that's being said in the news this week)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 15, 2025
IRC logs for Wednesday, October 15, 2025
Links 16/10/2025: Increased Use of Social Control Media Surveillance in US, French Rage Over Pensions
Links for the day
Links 15/10/2025: Qantas Airways Loses Control of Sensitive Data and Software Patents Are Being Thrown Out
Links for the day
Vista 10 is 'Dead', Here's Why People Should Move to GNU/Linux (or the BSDs)
Today we try to make an outline of reasons move away from Windows to GNU/Linux
Our Sites Continue to Improve
LLM slop has had no noticeable impact on us
Gemini Links 15/10/2025: Neovim, Helix Compared and Gemlog.blue Now Closed
Links for the day
Links 15/10/2025: Mass Layoffs at Amazon, OneDrive Spyware Revved Up, More 'Gen Z Protests'
Links for the day
The EPO's Staff Engagement Survey 2025 is Already Tainted by Intimidation by EPO Management (Trying to Influence Outcomes by Scaring Genuine, Honest Critics)
"[W]e have received reports that, following the previous survey, teams with negative responses were reproached or questioned about their answers..."
The DDoS Attacks by Microsoft's Scam Altman and Other Slop Charlatans and Frauds is Hurting the FSF, Delinking It From Copyleft Projects
This impacts a lot more than access to the licences
Microsoft Scanning Faces in Photos People Upload to Microsoft (Even Unconsciously), Slashdot Turns Report About It Into "Microsoft Sez" (Says)
Or "let's repeat the lies from a PR person/Microsoft's publicist"
[Teaser] Angel Aledo Lopez the Manipulator (Nepotism, Poll Rigging, and Other EPO Corruption)
We'll discuss this later today or tomorrow, based on internal EPO material
Attacks on Techrights Are Only Making Techrights Bigger and Even More Popular
A week ago they offered to settle with us
Epic Metaphor for End of IBM: "The IBM Demolition is Down to the Last Shards!"
Nothing lasts forever
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 14, 2025
IRC logs for Tuesday, October 14, 2025
Proprietary and DRM Prisons Spiralling Down the Sinkhole? Not Just Yet.
Let's hope that more people will flee to GNU/Linux
The European Patent Office (EPO), the Second-Largest Institution in Europe, is Cracking Down on Recreational Activities
Without AMICALE activities, and as staff already says it's pressured to work more for less, how can the EPO recruit bright people?
Transparency: FSFE financial reports exclude speaker fees and expenses
Reprinted with permission from Daniel Pocock
Many Developers Have Many Political Views, They'll Never Agree on Everything
It's an effort to divide and destroy, not build
Gemini Links 14/10/2025: An Opportunity to Consider GNU/Linux and Another Simple IRC Client
Links for the day
Slopwatch: UbuntuPIT, LinuxSecurity, Google News, and the Serial Slopper Brian Fagioli
Nothing of merit here, just more slop
Links 14/10/2025: Lack of Trust in Slop and "Retirement Challenges"
Links for the day
EPO Staff Can Go Listen to Richard Stallman Next Week in Munich (Technical University of Munich, Rudolf-Diesel Hörsaal (MW2001) on Campus Garching at 18:00)
"The talk is open to the public and attendance is free. Registration is not required."
Rhonda D'Vine, Gerfried Fuchs, Pronouns & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
At IBM, Relocation Means Layoffs (Downsizing)
Silent or 'invisible' layoffs?
Central Staff Committee of the European Patent Office (EPO) Warns That EPO Management is Robbing or Manipulating Pension Funds Again
Faking "growth" is just about as bad as forgery
Probably a Lot Worse Than LLM Slop: GNOME Tying Itself to Divisive Politics, Even Where It's Clearly Not Relevant
Something has gone terribly wrong in GNOME
Links 14/10/2025: Microsoft OneDrive Scanning Faces in Photos (Without Asking First), "OpenAI Says It Will Move to Allow Smut"
Links for the day
They Generally Don't Like Scholars, as They're Less Compelled or Pressured to Repeat What Corporations and Oligarchs Say
People who loathe scholars have an agenda in mind that, unlike that of reasonable people, revolves around controlling people
Dystopian Trends in Technology Make Richard Stallman More Relevant Than Ever
It's good to see him attracting vast audiences
Belated New Article About Last Thursday's Lecture by Richard Stallman in Helsinki, Finland
there are good reasons to pay with cash, not limited to privacy
Attacking Richard Stallman Has Become 'Career Suicide'
If you're going to viciously attack somebody, make sure your arguments are rock-solid
Microsoft's Failing XBox Business Has Turned Games Into Funerals
How does it feel to depend on Microsoft?
Yesterday's "Distinguished Lecture" by Richard Stallman Possibly Attended by Close to 1,000 People
The capacity of the place is about 900
Slop Poisons Everything
Imagine wanting to find what Torvalds has just said or what has just been released
Taking Software Freedom 'Mainstream'
interest in Software Freedom must have grown
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 13, 2025
IRC logs for Monday, October 13, 2025
Gemini Links 14/10/2025: Ada Lovelace Day, Sony CLIE PEG-TG50 Review, Why to Avoid Network Solutions
Links for the day
Richard Stallman (RMS) Announced His Talk Less Than 24 Hours Before It Took Place and Still Filled Up the Auditorium at Sapienza Università di Roma
Photos from yesterday evening [...] It looks like it was a very successful event