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Thursday, 31 July 2014

7,000 EPO employees in DE, NL, AT & BE ... plus one in FR?

EPO President Battistelli in his office. The Eiffel Tower is
not visible from this angle, it would appear.
Back in 2010, when Benoît Battistelli was first appointed as President of the European Patent Office (EPO), there was a certain lack of transparency in the election process. As a blog post by IAM Magazine reported at the time, mischievous rumours quickly emerged from the EPO staff union newsletter (PDF link) to fill the vacuum of information regarding the circumstances of Mr Battistelli’s appointment.

Battistelli’s original contract was negotiated in secret with Mr Jesper Kongstad, the then Acting (and now actual) Chairman of the Administrative Council. It was rumoured, intriguingly, that the contract specified that Mr B’s place of employment was the Parisian suburb of Saint Germain-en-Laye (the town of which he was deputy major, the spiritual home of football team Paris Saint-Germain and the birthplace of Louis XIV, the Sun-King), and that it contained an annex granting him full pension rights at the end of his five-year contract. While Merpel, whose nine lives invariably make any sort of pension annuity unaffordable since the pension must last so much longer than expected, can see the attraction of having full pension rights after a relatively short employment stint, she wonders what advantage or reason could lie behind deeming Mr Battistelli's place of employment to be 700 km west of where his office is actually located, if there is any substance behind that improbable rumour. The union newsletter, SUEPO Informs, also reported that Mr Kongstad refused to show the final contract negotiated with Mr Battistelli to the Administrative Council ('AC'), despite repeated requests by its apparently quite powerless members.

Another of St. Germain-en-Laye's favourite suns (sorry),
who holds the European record for extended reigns with 72
years, 110 days. Also known for ambitious building projects ...
As we now know, Mr. Battistelli has been reappointed for a further three-year term starting in July 2015, to much unhappiness on the part of some EPO staff. What surprised Merpel, however, was being informed by an impeccable source that the AC has once again entrusted Mr Kongstad with negotiating the extended contract with Mr Battistelli, and without requiring that the terms be presented to or ratified by the AC. This casts significant doubt on the SUEPO suggestion that, back in 2009, significant numbers of AC delegates were unhappy not to have been given sight of the original contract (or it suggests that those delegates have very short memories if they are prepared for the same to happen again).

In particular, Merpel understands that
  • the decision to extend Mr Battistelli’s contract was carried by an overwhelming majority of the delegations, in a secret ballot.

  • having made the decision to extend the contract, the Council then authorised Mr Kongstad to negotiate and conclude the terms of the extension “under his sole authority”

  • this latitude is however constrained by an understanding that the extension be on the same basis as the original 2009 contract.
It is unfortunate (meaning that Merpel takes great delight in observing) that, at the highest levels of the European Patent Organisation, such murkiness abounds. The original power struggle; the former rivals who are now apparently interdependent as President and AC Chairman; the negotiation of a secret extension to a secret contract appointing the head of a large, powerful, pan-European organisation to which countries have devolved extensive powers: it’s all grist to Merpel’s mill.

Jesper Kongstad, Chairman,
EPO Administrative Council, about whom
Merpel has no funny gags ... yet
Less savoury is the apparent indifference of the AC members to the staff concerns. The AC membership is the various member states, represented almost invariably by the head of each national patent office. Never friends to the EPO staff unions, it appears that the AC has been deaf in recent months to the entreaties of EPO staff representatives asking them on several occasions to put a check on Mr Battistelli’s more excessive actions. Indeed at the most recent meeting, Merpel hears that the AC discussed the current unrest with the President and expressed its unwavering support to him, urging him to push ahead with his reforms.

Is this an example of patent office heads naturally siding with one of their own, and against the troublesome unions? Or is it more nuanced, with AC members having due regard to staff concerns but seeing a different balance in the debate? And just why is the AC so eager to keep Mr Battistelli in place for three more years at (apparently) any cost? 

Most intriguing, does anyone other than Mr B and Mr K know what was in that original contract? Merpel is interested both in the literal answer to this question (i.e. has the contract been seen by, or have its terms been revealed to, anyone other than the two main actors?), as well as in the implied further request that someone might spill the beans and tell us whether Mr B was indeed deemed to be employed in France rather than in Germany, and what tiny fraction of each renewal fee goes into Mr Battistelli's monthly pay-cheque.

While Merpel is always eager to hear from EPO staff members, on this occasion she is hoping to also hear from anyone in the national patent offices who either attends the AC meetings or knows the underlying politics behind the initial appointment and later reappointment of Mr B. Her address for such correspondence, for which she will as ever be unfailingly grateful and unyieldingly discreet, is

The more secretive the EPO is in its dealings, the more curious we all become about what is really going on there. The 21st century is an era of public sector transparency, a fact that the EPO appears not yet to have grasped. Perhaps, if any reader is passing through St Germain-en-Laye, they might drop a note to that effect through the letterbox of the EPO employee who may or may not be based there.


Anonymous said...

"Something is rotten in the state of Denmark." Hamlet (1.4), Marcellus to Horatio.

But may be not only there, but also in some other national patent offices and the EPO?

Anonymous said...

I wonder whether Merpel's contract negotiations have always been conducted in public? Can we see the contracts online somewhere?

Merpel McKitten said...

If I held a public office, I would expect that my terms of employment would be open to the public. In the UK we know how much our judges, government ministers and civil servants earn, what their pensions are and what are their duties and entitlements. Why should Mr B be any different?

For the record, I have no contract and receive no emoluments of office. Like the IPKat and his friends, I blog for the good of the IP community.

Roufousse T. Fairfly said...

In addition to being patent supremo plenipotentiary extraordinaire, Monsieur B is also city counselor in the well-to-do Paris suburb of St-Germain-en-Laye, in charge of the theatre (!).

According to the French code électoral, in order to have one's name on a ballot, one must be qualified as an elector, which in turns demands either to be domiciled in the city, or to pay taxes there. Code Civil, Art. 102: Le domicile de tout Français, quant à l’exercice de ses droits civils, est au lieu où il a son principal établissement.

My hunch is that there lies at least part of the explanation...

Note that the staff regulations applicable to the rank and file idiots impose residence within commuting distance to the EPO. In my day, this requirement was expressed in practice as a list of permissible boroughs and suburbs of Munich, Berlin or The Hague.

A consequence of being based in France and having to commute to Munich or The Hague to accomplish your duties is that a per diem travel allowance is possibly paid out, and for a large portion of the year.

BTW, let me mention here the case European Parliament president Martin Schulz, about whom the German TV (Report Mainz) found out that he was collecting the €304 allowance 365 days a year... How often is Monsieur B. on the road? (And how much time does he have left to accomplish his duties as representative of the people?)

IIRC again, for long missions away from home, the staff regulations limit the payout of daily travel allowances to two months (that's still quite a good deal), after which the ordinary staff member is expected to find much more economical arrangements.

Anonymous said...

It must be noted that Mr. B's attachment to Saint Germain en Laye is linked to his activity in the local town council: when first appointed president of the EPO, he was already town councillor, and even deputy mayor for cultural affairs (maybe not a very strenuous occupation: Saint Germain en Laye is not known for its rich cultural life). While he has not continued as deputy mayor, he was re-elected to the town council in the municipal elections this year (again, not very hard: Mr. B was candidate for the conservative UMP party and Saint Germain en Laye is one of the most conservative towns in France).

MaxDrei said...

As has been pointed out often enough, the Members of the EPO's Administrative Council (the Employer, if you like) are the Heads of national Patent Offices, in competition with the EPO.

One supposes that EPO employees other than the one called "President" owe their loyalty to the EPO. If I were to put it to you all, with sadness, that the loyalties of i) the EPO President and ii) the members of the AC, lie elsewhere, who will contradict me?

Anonymous said...

The reason for the place of employment being St.Germain in France is probably the fact thet Mr.B is a mayor in St. Germain and for that reason is obliged to live in that community. And it would be a bit funny if he'd live in St.Germain and work in Munich, wouldn't it? I mean commuting 700 km one way is a bit improbable. And why the other job? Does he not earn enough at the EPO? Apparently not, in his view. But his view also seems to be that the staff at the EPO earns too much anyway and is a lazy bunch at that. Things such as competence and quality fall on deaf ears. It is so sad to see deteriorate the EPO to a source of income for people who have no affinity whatsoever with patents or law.

Anonymous said...

Max. I will not contradict you, since what you suppose is both necessary and desirable.

Consider a Minister whose first loyalty is to his Department and his Staff. The result - coverups, inflated budgets and empire-building. Consider a firm of patent attorneys, whose first loyalties are to each other. The result? Again coverups, fee inflation, bill churning and poor client service. Consider a hospital, the management of which has a first loyalty to each other and to the medical staff. The result? Patients being given suboptimal or inappropriate treatment because it is more convenient or more profitable to do so. Consider an army, whose first loyalty is to itself. The result? Coup d'Etat.

The loyalty of the President should be to the European Patent System, and particularly to make it work well for the benefit of the Contracting States, who have outsourced this function to the EPO in the name of harmonisation and efficiency. The loyalty of the AC should be to their national offices, whose interests they are to represent, and to the Ministers of Government responsible for those Offices.

I'm not saying that the President's loyalties are at present correct. But I would rather see them more closely aligned with the needs of the Contracting States and the system users than the needs of the staff.

Anonymous said...

The latest rumours: no nominations anymore for the boards of appeal. Everything is frozen, interviews for the succession of future retirees have been cancelled and renominations will also not be proposed to the Administrative Council, so I heard. This is becoming very interesting: how can a board continue its work when it has a chairman or members whose nomination has run out?

It shows how right the R19/12 decision was: there is massive influence by the other departments of the EPO - or should I say the President? - on how the supposedly independent boards of appeal are run. If basic democratic laws are not applied in the EPO, such as the separation of powers, what is the legal basis of their decisions?

Anonymous said...

The legal basis of their decisions is the EPC, which was (for a given value) democratically drafted and ratified (at least as much as any international convention with legal effect, e.g. ECHR, PCT, TFEU). I am not sure how democracy in the internal running of the EPO has any relevance to the legality and legal effect of its decisions.

Anonymous said...

Après Benny, le déluge?

Anonymous said...

Where can I find the salary of Mr Justice Arnold, his expense claims and other benefits?

Merpel said...

>Après Benny, le déluge?

That quotation (or something similar) did occur to me as a caption, until I realised that it is attributed to the grandson, Louis XV, who was born a few miles down the road in Versailles.

Merpel said...

>Where can I find the salary of Mr Justice Arnold, his expense claims and other benefits?

Darren Smyth said...

To Anon at 12:58, I think you can find it here:

No doubt others may be able to point out alternative sources of this information.

Kind regards


Anonymous said...

To anon 12:58. You can find the salaries of all UK judges at the website of the Ministry of Justice.

Anonymous said...

Before PSG became suddenly rich.
Extremely average players were on the pitch.
Now Zlatan and co.ride the gravy train.
Our local mayor extends his reign.
It's the AC digging this hole deeper.
Three more years of de Gaulle keeper.

Anonymous said...

Merpel, I have a feeling that the quotation is from Madame de Pompadour, mistress of Louis XV. Clearly she knew a thing or two, merde alors.

Anonymous said...

Maybe it is a natural process that will result in revision of the EPC with implementing separation of powers. My guess would be that at the moment of drafting the EPC, it was difficult to estimate the present economical scale and impact of EPO's activities. Therefore, a close look was not given to the separation of powers, since it was a smaller organisation where legal traditions could fulfil this role.

If one thinks about the EPO as an administrative intergovernmental organisation, one can notice at least two differences with the national or European practice of administrative decision making.

First of all, usually decisions of an administrative national (or European) organ is appealable at an independent court. To this purpose, national legal systems usually have a net of administrative courts. On the European level, in turn, the CJEU functions to consider disputes around decisions of European administrative organs. For EPO's decisions, there is no independent appeal instance.

Secondly, policies of national administrative organs usually strongly linked to a democratic decision forming. In other words, unpopular decisions will survive maximum to the next elections, and can be revoked eventually. Making a parallel with the EPO, one can see that EPO policies will reach, at maximum, the EPO Administrative Counsel, which is an administrative organ on its own (i.e., formed by representatives of national offices) and covered by a few higher national administrative levels before the democratic decision forming comes into play.

A very short comment aside, I read a lot about comparing the EPO with a state. Isn't the EPO a specialised international organisation, a very well known and defined subject of international public law? For example, as the European Space Agency (ESA) …

Anonymous said...

>>> "A very short comment aside, I read a lot about comparing the EPO with a state. Isn't the EPO a specialised international organisation, a very well known and defined subject of international public law? For example, as the European Space Agency (ESA) … "

Well spotted that chap !
The theory is indeed well known per se, at least at the level of academic abstraction ...

It's the practice that seems to be causing such bother these days ...

Anonymous said...

Dear Merpel,

You wrote:
> While Merpel is always eager to hear from EPO staff members, on this occasion she is hoping to also hear from anyone in the national patent offices who either attends the AC meetings or knows the underlying politics behind the initial appointment and later reappointment of Mr B.

I know little about the underlying politics. However the rumor says that three persons know the initial contract of Mr. B. Further than Mr. B. himself and his former rival Mr. K., Mr. Christian Archambeau, then Principal Director in charge of Human Resources was involved in the drafting. Mr. A. is currently vice-president of the OHIM (and on secondment at the EPO). Mr. B nominated the spouse of his main adviser as Principal Director in charge of Human Resources to replace Mr. A.

Comme le monde est petit !

Anonymous said...

Thanks D.

Most interesting point is that conflicts of interest are banned, except for being a mason:

14. Following the Government’s response to the Report of the House of Commons Select
Committee on Freemasonry in the Police and the Judiciary, anyone being appointed for the
first time to a judicial office is asked as a condition of appointment whether they belong to
the Freemasons and, if not, that they notify the Lord Chancellor in the event that they
subsequently join them. Judicial post holders must expect that this information may be
included in the public register."

Anonymous said...

Some other Anonymous wrote above:
"The loyalty of the AC should be to their national offices, whose interests they are to represent, and to the Ministers of Government responsible for those Offices."

Under Article 4a of the revised "EPC 2000", a conference of Ministers is supposed to take place at least once every five years.

The revised "EPC 2000" entered into force more than five years ago and still no Ministerial conference has been convened.

Some might see this as a breach of statutory duty on the part of the AC.

But who cares ? There's no way of calling them to account.

Remember the immortal words of UBU-stelli:
« Je n'ai jamais été aussi libre, insiste-t-il. Je n'ai pas de ministère de tutelle, de Parlement, de gouvernement. C'est nous qui fixons les règles, les discutons, les négocions. »

Anonymous said...

The document above mentioning Freemasonry appears to be out of date (dated 2007). The requirement to declare membership was abolished in 2009:

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