|Tilman Müller-Stoy, who's asking the|
DE delegation to the AC to set the
EPO management straight
“a transgression of competence on the part of the Management of the EPO which causes deep concern and is likely to fundamentally question the independence of the Boards of Appeal”.
"However, a transgression of competency of this kind is unacceptable under the principles of the rule of law: The exertion of the disciplinary power by the “executive” over the “judiciary” of the EPO abolishes the separation of powers and jeopardizes the judicial character of the Boards of Appeal which is substantially determined by the independence of its Members."
"In a second point which is less obvious to the public, the President also transgresses his powers. The Chairmen and Members of the Board of Appeal so far have been, as a matter of routine, reappointed after the lapse of an appointment period. Since the issuance of the decision R 19/12 [IPKat post here, and it's a decision to which the President reportedly reacted with fury], no members have been reappointed so far. Whereas according to Article 11(3) sentence 1 EPC the President has a right of suggestion for the appointment, he precisely does not have such a right with regard to the reappointment. In such a case, he is merely to be heard, according to sentence 2. Nevertheless, the President de facto controls the reappointments. He does not limit himself to communicate the members to be reappointed to the Board or to have them communicated to the latter and to eventually give his comments, but he withholds this information from the Administrative Council. It is obvious that Members of the Board whose appointment period is due to expire shortly consider themselves put under pressure by the President until their reappointment has been made. The personal independence, the indispensable requirement of an also critical examination of administrative decisions, cannot be
guaranteed under such conditions."
Upton Sinclair, who said:
"It is difficult to get a man to understand
something, when his salary depends
upon his not understanding it"
With these measures of the President, a functioning and balanced system which enjoys great acceptance on the part of the users is ultimately discredited, which should cause all persons responsible for this system, in particular the representatives of the Member States in the Administrative Council to take measures which are appropriate for safeguarding the independence of the Boards.
Time is running out for readers to draw the attention of their own AC representatives to the problems at the EPO, not just as far as the current regime concerns Board members, but also in relation to how the staff generally are being managed. Merpel's said it before and will say it again: just because someone is perceived to have a good benefits package does not mean that they should lose the normal protections of employment law, fair treatment and access to independent, timely and fair dispute resolution mechanisms.