Series index:

1. The EPO Bundestagate -- Part 1: How the Bundestag Was (and Continues to be) Misled About EPO Affairs
2. The EPO Bundestagate -- Part 2: Lack of Parliamentary Oversight, Many Questions and Few Answers…
3. The EPO Bundestagate -- Part 3: A “Minor Interpellation” in the German Bundestag
4. The EPO Bundestagate -- Part 4: Parroting the GDPR-Compliance Myth
5. The EPO Bundestagate -- Part 5: The Federal Eagle's Disconcerting Metamorphosis
6. EPOLeaks on Misleading the Bundestag -- Part 6: Dr Petri Starts the Ball Rolling…
7. EPOLeaks on Misleading the Bundestag -- Part 7: Ms Voßhoff Alerts the Bundestag…
8. EPOLeaks on Misleading the Bundestag -- Part 8: The EPO's Tweedledum, Raimund Lutz
9. EPOLeaks on Misleading the Bundestag -- Part 9: A Veritable Virtuoso of Legal Sophistry
10. EPOLeaks on Misleading the Bundestag -- Part 10: A Faithful Lapdog Despised and Reviled by EPO Staff
11. EPOLeaks on Misleading the Bundestag — Appendix (Benoît Battistelli's Vichy Syndrome): Georges Henri Léon Battistelli and Charles Robert Battistelli
12. EPOLeaks on Misleading the Bundestag -- Part 11: The BMJV's Tweedledee: Dr Christoph Ernst
13. EPOLeaks on Misleading the Bundestag -- Part 12: A Worthy Successor to His Mentor?
14. EPOLeaks on Misleading the Bundestag -- Part 13: The Failed Promise of a “Good Governance” Guru…
15. EPOLeaks on Misleading the Bundestag -- Part 14: The Notorious Revolving Door
16. EPOLeaks on Misleading the Bundestag -- Part 15: Different Strokes for Different Folks
17. You are here ☞ An Inimitable Duo

Summary: How the efforts to reform the EPO's data protection framework were derailed by the actions of Lutz and Ernst

IN the last part we concluded our long and winding detour to examine the respective roles of Lutz and Ernst in EPO affairs over the last two decades.

Now it's time to return to the main focus of the present series, namely: how the efforts of the Federal Data Protection Commissioner to push for a reform of the EPO's data protection framework were derailed by the actions of this inimitable Tweedledum-Tweedledee duo.

"Dr Ernst proceeded to fire off a letter to the EPO's Directorate of Legal and International Affairs, headed by none other than former Federal Justice Ministry official, Raimund Lutz."As we saw in an earlier part of the series, the Federal Data Protection Commissioner, Ms Andrea Voßhoff, sent a letter to the Legal Affairs Committee of the Bundestag in July 2015 in which she expressed her concerns about deficiencies in the EPO's data protection framework, in particular the lack of independent supervisory oversight.

The Legal Affairs Committee of the Bundestag placed the matter on its agenda for a meeting scheduled to take place on 14 October 2015. At the same time the Federal Government was invited to provide a statement of its position to the Legal Affairs Committee.

In accordance with standard procedures the matter was passed on to the competent government department, namely the Federal Ministry for Justice and Consumer Protection (BMJV) which is responsible for all matters relating to the EPO.

And so it came to pass that the file landed on the desk of a "Ministerialdirigent" by the name of Dr Christoph Ernst.

Dr Ernst proceeded to fire off a letter to the EPO's Directorate of Legal and International Affairs, headed by none other than former Federal Justice Ministry official, Raimund Lutz.

In his letter to Lutz dated 20 July 2015 [PDF], Ernst noted that Ms Voßhoff had addressed the Legal Affairs Committee of the Bundestag and had reiterated the demand for the establishment of an external data protection supervisory authority over the European Patent Office, referring to "the case of computer surveillance by means of keyloggers and video cameras recently mentioned in the press".

Ernst then made a request for assistance from the EPO:

In preparation for the discussion in the Legal Committee [of the Bundestag], it would nevertheless be very helpful if the BMJV had a written statement from the European Patent Office at its disposal.

I would therefore ask you to comment on Ms Voßhoff's letter of 9 July 2015. In particular, I would ask you to explain to me once again in detail the data protection standards applicable at the EPO, the cooperation with the European Data Protection Supervisor and the events in connection with the computer monitoring mentioned above, and their legal assessment under the law applicable to the EPO.

It took some time for Lutz to get back to Ernst but on 2 October 2015 he sent the EPO's response to the BMJV. [PDF]

This response is full of the usual self-serving waffle and pious platitudes about how the EPO's data protection framework is "closely aligned" with EU data protection regulations, for example:

The EPO is proud of its long history of data protection. We are one of the first international organisations to have actively pursued data protection, having enacted the first data protection guidelines back in 1992. This policy was revised in 2014 and adapted to current standards of data protection. It is based on generally accepted European legislation, first and foremost Directive 95/46/EC and Regulation 2001/45/EC, which contain all the elements of modern data protection, from the basic principles of data protection to the rights of an individual vis-à-vis the data-processing institution.

When addressing the allegations of unlawful covert surveillance by Battistelli's "Investigative Unit", Lutz adopted a more defensive tone and declined to comment on the specifics:

As far as the specific case is concerned, I ask you to understand that the EPO cannot comment in this context on ongoing disciplinary proceedings of the Administrative Council, but I would like to point out that press articles based on an isolated letter do not provide a reliable basis for assessing our data protection.

The letter continues with further cant and humbug about the EPO's "conscientious" approach to data protection and the same old phony assurance that "its rules meet European data protection standards".

Lutz concludes by expressing his gratitude for the support given to the EPO by BMJV via "the letter from the State Secretary Ms Hubig to the Data Protection Commissioner of 7 November 2014".

As might be expected, the correspondence between the "Ministerialdirigent" Dr Ernst and EPO Vice-President Lutz is worded in an official and formal style.

However, it is apparent from the much more personal tone of the cover e-mail of 20 July 2015 [PDF] which Ernst sent to Lutz that these two gentlemen were on very familiar terms with each other.

The text of this e-mail reads as follows (in translation):

Dear Raimund

Here is an advance copy of the announced communication per e-mail.

Cordial greetings

Christoph

Here we can see that Ernst addresses Lutz by his given name rather than using the more formal "Sehr geehrter Hr Lutz". The e-mail concludes with "Herzliche Grüße" ("cordial greetings") rather than with the more impersonal salutation - "Mit freundlichen Grüßen" - which is found in the official correspondence.

With his letter of 2 October 2015, Lutz provided Ernst with the material that he needed to prepare his submission for the Legal Affairs Committee in a manner that would neutralise the impending threat of parliamentary "interference" in EPO affairs.

In the next part we will explain how Ernst used "copypasta" magic to ward off the evil spirit of the Federal Data Protection Commissioner who was threatening to encroach upon the inviolability of Battistelli's EPOnian fiefdom. ⬆