What happens next is anybody's guess, but don't hold your breath…
At the time of writing, there has been no identifiable public reaction from the Enlarged Board of Appeal, except this, to the myriad allegations of partiality which have been articulated in the IP blogosphere in connection with case no. G 1/21.
"Taking a pragmatic view, the only realistic strategy open to the Enlarged Board at this juncture seems to be the option that the Germans call "Flucht nach vorn" - a headlong rush forwards into the legal minefield in the hope of coming out on the other side in one piece."Unfortunately, it seems that Josefsson is suffering from the widespread EPOnian ailment of "conflict-of-interest blindness" when it comes to this rather delicate issue.
To paraphrase Oscar Wilde, having a Chairman who is under suspicion of partiality might be regarded as a misfortune; to have a panel with a majority of members tainted by such suspicion looks like downright carelessness.
However, the fact of the matter is that, as the scheduled date for the hearing approaches, it becomes increasingly difficult for Josefsson and his panel to come up with a graceful exit strategy which would allow them to extricate themselves in a credible manner from the appalling legal mess of their own making.
Taking a pragmatic view, the only realistic strategy open to the Enlarged Board at this juncture seems to be the option that the Germans call "Flucht nach vorn" - a headlong rush forwards into the legal minefield in the hope of coming out on the other side in one piece.
"As things stand, it's looking pretty much like a "slam dunk" for Josefsson."Of course the Enlarged Board's predicament is significantly eased by the fact that whatever course of action it decides to take, there is no higher review instance to point an admonishing finger at its errors.
So even if the Enlarged Board decides to ride roughshod over fundamental legal principles and disregard its own internal rules for reasons of "political expediency", nobody risks getting hauled over the coals for what - under "normal" non-EPOnian circumstances - might be considered to amount to serious judicial misconduct.
As things stand, it's looking pretty much like a "slam dunk" for Josefsson.
Three of his internal members - van der Eijk, Eliasson and Ritza - are generally reputed to be managerially compliant "minions" who know their place and can be depended on to dance to the Chairman’s tune.
The only internal member with a credible track-record of independence is Beckedorf whose role in the procedures G2301/15 (warning: epo.org link, hence surveillance risk) and G2301/16 (warning: epo.org link) demonstrated that he wasn't always prepared to dance to the tune of his political masters when their wishes conflicted with his sense of professional ethics.
"Three of his internal members - van der Eijk, Eliasson and Ritza - are generally reputed to be managerially compliant "minions" who know their place and can be depended on to dance to the Chairman’s tune."But a lot of water has flowed under the Ludwigsbrücke near the EPO headquarters in Munich since those days.
It remains to be seen whether or not Beckedorf proves himself able and willing to swim against the tide in the present case.
To begin with he may have been chastened by his experiences during the proceedings in cases G2301/15 and G 2301/16 when he was reportedly faced with the threat of nonââ¬âreappointment by Benoît Battistelli's protector, Jesper Kongstad.
Beckedorf's next reappointment (to take effect as of 2022) does not appear to have been decided yet. It is probably due to be decided later this year, most likely in June. That is likely to make him wary about trying to rock the boat too much between now and then.
Apart from this, it has been rumoured that Beckedorf may harbour personal ambitions for a more senior position in the Boards of Appeal, for example as head of the Legal Board. Those are precisely the kind of considerations that tend to make a nominally independent judicial official more inclined to show deference to the whims of his political masters.
Josefsson and Beckedorf attending a Judicial Symposium in Tokyo in 2018
epo.org link) cannot be ignored.
"Let's not forget that Josefsson was re-appointed by the Administrative Council in December 2020 and he clearly plans to remain in charge at Haar until 2027 at least."Under the given circumstances, we can conclude that Beckedorf is likely to be extremely reluctant to dirty his copybook with his Swedish overlord.
Let's not forget that Josefsson was re-appointed by the Administrative Council (warning: epo.org link) in December 2020 and he clearly plans to remain in charge at Haar until 2027 at least.
Now that's what Battistelli would call "a real judge"!
"It would be interesting if Mr. Arnold and/or Mr. Chatzikos were to refuse to take part in what, on the face of it, is a kangaroo court."
[PDF] of EPOnia.
"It's equally possible that Arnold might decide to take the easy option to "go with the flow" and trouser his € 1000 "petty cash" without asking too many questions."On the face of things, it is the "external member" from the UK - Lord Justice Richard Arnold - who would appear to be the person most likely to object to the procedural shenanigans which have tainted the case so far.
However, it is by no means certain that Arnold will object.
Even if he felt motivated to do so, the fact of the matter is that, as long as he remains on his own in this regard, he is in the unenviable position of being outnumbered by six to one.
It's equally possible that Arnold might decide to take the easy option to "go with the flow" and trouser his € 1000 "petty cash" without asking too many questions.
Josefsson and Arnold at the 17th European Judges' Symposium (Tallinn, September 2014).
"What happens next seems to be anybody's guess so - if you want to avoid a disappointment - don't hold your breath!"So it's quite possible that, for old time's sake, Arnold might prefer to avoid any kind of professional showdown with his "learned friend" Josefsson.
What happens next seems to be anybody's guess so - if you want to avoid a disappointment - don't hold your breath!
That concludes our review of the current state of play in referral case G 1/21.
A final summing-up will follow shortly. ⬆