From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Tuesday, 24 February 2015

The EPO: privileged and immune says the President

Dutch justice.  The following Communiqué, issued by the European Patent Office (EPO) President, Benoît Battistelli, is so self-explanatory that it needs little comment other than to clarify some of the abbreviations. Its substance has already been the subject of a number of readers' comments on earlier posts -- and it may be useful to see exactly what is being said:

Waiving immunity - what is at stake? Judgment TH [= The Hague] Court of Appeal of 17.02.2015

"L'État, c'est moi"
Some days ago, a Court of Justice in the Netherlands, after a complaint introduced by SUEPO [the EPO staff union] - TH concerning the right to strike and the sending of mass emails, decided not to respect the fundamental principle of immunity of jurisdiction of the EPO as an International Organisation, the separation of powers included in the EPC, the Protocol on Privileges and Immunities [PPI], the Seat Agreement as well as general principles of law and ILOAT [= International Labour Organization Administrative Tribunal] jurisprudence. Additionally this judgement states not only for the case at stake in the Netherlands, but pretends to enforce it in Germany, Austria and Belgium as well.

Some might celebrate that a national jurisdiction endorsed the claims of an union. But such a violation of the legal features founding the existence of the EPO has so much far-reaching consequences than a simple additional episode in the dubious battle some members of the union pretend to fight against the Organisation.

International Organisations are specific entities by which founding treaties confer to the Organisation, as well as to their employees, privileges and immunities in order to fulfil their mission in full independence from national influence. Thus the EPO, like any other international organisation, enjoys through its PPI, immunity of jurisdiction and execution. Out of the same protocol employees of the EPO enjoy privileges as regard salaries, taxes and social package, as well as immunity when acting on behalf of the Organisation.

"La chatte, c'est moi"
These principles guarantee the mere existence of the Organisation based on an international treaty ratified by 38 member states. Accepting that a national court disregards such founding principles would lead to an unacceptable legal uncertainty for the Organisation and its staff. It would let both in a legal vacuum as to which law should apply: EPC [= European Patent Convention] and our codex? National laws of the place of employment as if the EPO were a private multinational company?... In that case, different rules would apply to EPO staff members depending on their administrative residence not only for some social rules but following the same logics also for salaries, health schemes, allowances, pensions, etc.

For the sake of preservation of the EPO and in the interest of the staff, this judgement is neither legally admissible nor practically enforceable. As a consequence, the EPO cannot execute this judgement. Our legal framework remains unchanged and the rules challenged through this trial will continue to apply.

It is unfortunate that such a dangerous development was initiated and encouraged by an union whose first aim should be to preserve the fundamental interests of the staff and the Organisation.

You can count on my perseverance and commitment to defend our successful model in the best interests of the Organisation and its staff.
This moggy wonders what fate lies in store for the judges of The Hague Court of Appeal. Are the black plastic bags already being prepared for them? Are they being lined up for a discreet removal from their offices and their suspension as a "precautionary and conservative measure" while they receive lukewarm assurances that their judicial independence remains unimpaired and has indeed been both protected and enhanced?

76 comments:

Anonymous said...

Could this be nothing more than a dastardly plan by the President of the EPO deliberately to scupper the UPC by reminding the CJEU just as they are writing their judgment on the Spanish challenge that the EPO considers itself above the law? In this way the EPO will remain as the patent beacon of Europe, extinguishing the nascent hopes of the UPC to overtake it.

Stranger things have happened...

Anonymous said...

Just 114 days are left until 18 June 2015, the 200th anniversary of the battle of Waterloo, when another Frenchmen who set himself above the law was defeated.

Anonymous said...

http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ma5.html

Article 19(2)

The President of the European Patent Office has the duty to waive immunity where he considers that such immunity prevents the normal course of justice and that it is possible to dispense with such immunity without prejudicing the interests of the Organisation.

Administrative Council may waive immunity of the President for the same reasons.

Anonymous said...

What else could BB have done other than stick to his line? His whole strategy is built on the assumption that whatever he does is fully protected by the shining armour of diplomatic immunity. Now it turns out that the armour is not quite as shiny and impenetrable as he once thought. Poor man!

Anonymous said...

Old Bony wasn't French, he was Corsican. He was born on 15.08.1769 and Corsica only became French in 1770.

Anonymous said...

He's gone...bananas

Anonymous said...

Une organisation dont le métier est de dire le droit et qui ne respecte pas les décisions de justice qui lui déplaise .... bravo pour la réputation de l'OEB. Quant aux arguments fallacieux développés par Mr Battistelli quelle bonne blague!

Anonymous said...

To Anonymous @ 13:09,

A rather (delicate) question for you: who exactly is determining "considers that such immunity prevents the normal course of justice... without prejudicing the interests of the organization"...?

Clearly, both sides of the fracas are claiming the same territory. Both sides are saying that justice and the interests of the organization are "clearly" on their side.

Who gets to decide which side is right? What to do if the impasse remains?

Anonymous said...

Anon 13.26: Isn't young Bony also Corsican? Not that it matters....

Anonymous said...

Has anyone got an English translation of the Dutch court's decision yet?

Battistelli claims that the decision would bring down the existing legal order for employees: "...different rules would apply to EPO staff members depending on their administrative residence not only for some social rules but following the same logics also for salaries, health schemes, allowances, pensions, etc."

But from comments in other threads, I understood that the decision was deliberately designed not to do that. Apparently it didn't apply to employees.

In fact, I understood that the logic of the decision was that it only applied to SUEPO, as a separate entity from the employees, because SUEPO doesn't have the same legal recourse that is provided to employees under the EPC and the Service Regulations. So the EPO's immunity is only pierced to that limited extent.

Unfortunately, as I can't read Dutch I cannot check this, which is why I ask about a translation.

Anonymous said...

THe EPO: out of control and mind

TreatyNotifier said...

-What a confrontational and fully unnecessary answer. The judge indicates very clearly why ILOAT does not apply (Unions may not file an action there), and that the judge would have declined jurisdiction IF a proper appeal process had been available to the union (independent and with a possibility for an oral hearing). The judge was very explicit that such a process would not need to be external (with ILOAT), but could also be internal... So they could "simply" set up such a thing for unions...

-An additional action could be to appeal the judgement on points of law ("in cassatie"). I certainly hope they will do that to allow the Supreme Court to settle this matter for once and for all.


-However, it may remain up to discussion whether the judgment can indeed be enforced. That may need a new judgement requesting penalty payments for non-compliance (dwangsommen), but I doubt whether anything could be done if those are not paid (I am not even sure if they could be obtained with a judge). It seems impossible to seize property of EPO... In other words: strategically the response of EPO may be "correct".

Anonymous said...

@Anon 14:15
You are correct: individual employees can apply to ILOAT, which is not possible for unions (see also the above response of TreatyNotifier.

@TreatyNotifier: it is not only an independent appeal process, but also (and that probably is hurting the EPO managment more) access to the internal e-mail system and the right to organise strikes.

Anonymous said...

Benny was a warrior
Away-yeh!
Benny was a warrior
Bon Français!

Benny became President
Away-yeh!
Totally unprecedent-
Ed, Français!

Benny became l’Empéreur
Away-yeh!
Argue with him, if you dare!
Grand Français!

Benny caused almighty schism
Away-yeh!
Sensitive to criticism!
Con Français!

Benny, SUEPO
Away-yeh!
‘Twixt them there is much emo-
-tion, Français!

Dutch decision leaves Ben cold
Away-yeh!
Could end up scoring own Gaulle
Ballon Français!

Anonymous said...

As an outsider of the EPO I would be interested to hear what the main lines of communication are between the Administrative Council and the EPO. Is the flow of information formally only via the president or do the Administrative Council have meetings with various members of management within the EPO? Do the Administrative Council meet with SUEPO?

Anonymous said...

EPOcalypse is approaching fast...

Anonymous said...

I am just wondering, who is damaging the image of the EPO most.........

TreatyNotifier said...

Anonymous @15:13:00 GMT
This is a 2 step process. First the judge has to assume jurisdiction (because no proper appeal process is available), then he can decide to require uninterrupted access to email.

So if EPO wants to avoid national judge interference in the future (and to be honest: as an intergovernmental organization it has a legitimate interest to desire so), it should carefully read the judgement and implement an appeal process for unions.

Anonymous said...

@treaty notifier:

the bit about an appeal instance and oral hearing is interesting.

I heard from Eponians that the ILOAT offers in theory oral hearings, but in substance never do, and thus since immemorial times in the EPO cases
After how many years of such a practice may it also constitute a breach of the Epo employees rights?
The fun will also start anew with the judicial competencies and immunities of the ILoat...

Anonymous said...

So, the office will ignore a judgment by a court of the second instance in one of the founding countries of the EPC.

That must surely put the EPO, with its seat in the Netherlands, in a diplomatically precarious position.

And anyhow, Battistelli misses one crucial point. No matter how much he asserts immunity, a highly respected court in a highly respected country has decided: The Administrative Council acting on a proposal by the EPO president has committed multiple breach of one of our most fundamental laws in Europe: the Convention on Human Rights.

And this happens in an organisation responsible for a very legal activity: the grant and refusal of patents. One wonders what conclusions one may draw about trust in the EPO now.

(I posted the above in another thread a day or so ago, but it seems more appropriate here, so apologies to those who have already seen it.)

Anonymous said...

"That may need a new judgement requesting penalty payments for non-compliance (dwangsommen), but I doubt whether anything could be done if those are not paid (I am not even sure if they could be obtained with a judge)."

I am not so sure.

If "dwangsommen" were to be demanded and not paid, then it essentially would becomes a dispute between the Dutch State and the European Patent Organisation.

There is provision made for the settlement of such disputes in the PPI (refer to Article 23 et seq.)

Anonymous said...

It is amazing to see how a so-called high ranking civil servant is misusing his power and merely wants to push its head trough at any cost. One gets the feeling that the EPO is his private property and he can rule as he thinks fit.
The reaction is however not surprising. For the same token he did not avoid mixing the executive and the judiciary when sending a member of the boards of appeal home, he is perfectly unable to see the difference between a member of staff and a union which have´a different status.
Dictators never like unions, or only unions they can control; here is another prime example.

Anonymous said...

@Anon 15:30:00 GMT
Official lines of communication are only via President.
AC meeting with SUEPO: are you kidding? Never.

Anonymous said...

To anon 15:30

The Council has some contacts with the staff representatives although the staff rep. has been banned from the last general assemblies.

The council is also a corrupted entity because they have accepted material benefits from BB such as our medical insurance to be used (à volonté) when they temporarily stay in Munich.

So far they have ratified all Battistelli illegal reforms and re-conducted him in June 2014 for 3 more years.

The feeling inside the EPO is that apart from a limited number of countries with some old tradition in IP they have very limited understanding of the contain of Mr B reforms.

Nice restaurants, good medical covering, paid by the EPO. Poor knowledge of what is at stake. They can sleep well and support Mr B forever.

Anonymous said...

The Communiqué issued by the President didn't say one word about the "merits" of the judgment.
The merits indicates that the EPO president is violating the fundamental Human rights.

Of course, the president Battistelli could refuse to execute the judgement (on the ground of the EPO immunity).
But the EPO president would do a big mistake to refuse to restore the Human rights at the EPO.

All the members states of the EPO recognized those fundamental rights. The European patent attorneys want a system where the law is observed.
Now politics, journalists, lawyers couldn't ignore anymore such violations at the EPO.
I don't see how the EPO president will "politically" survive if he doesn't understand that he has to restore the fundamental rights at the EPO.

Anonymous said...

He seems determined to fight the world and surround himself with friends. I wonder what all those employment lawyers he's recruiting will actually have to do. Since the law doesn't exist that can tame him, surely he doesn't need help anybody. He knows already.

Anonymous said...

@ Anon 14:15

The statement "...different rules would apply to EPO staff members depending on their administrative residence not only for some social rules but following the same logics also for salaries, health schemes, allowances, pensions, etc." is a non sequitur for two reasons: i) the judgement can easily be applied EPO-wide, there is no reason preventing the management to do it except their unwillingness to do so, and ii) salaries and a couple of other elements of the employees' remuneration package are even now different depending on whether they work in Germany, the Netherlands, Austria or Belgium.

Secondly, the Court of Appeal decided three distinct issues: first, that e-mail communications from SUEPO to EPO employees must not be blocked by the administration; second, that the part of the strike regulations which defines a strike exclusively as work stoppage and that empowers the President to set a maximum duration for a strike and to be preventively notified of the strike duration are not to be applied; third, that EPO must accept SUEPO as a partner in collective negotiations. While the first and third points are specific to SUEPO, the second impacts EPO staff as a whole.

To conclude, I join the earlier commentators in the assessment that the judgement is probably not enforceable, unless the Dutch court decides to ignore entirely the PPI and impose damages on the EPO for not applying the judgement. If they did that, however, I am pretty sure even the AC would budge...

Anonymous said...

May I add a few humble thoughts about immunity and independency of an international organisation as such.

Legal immunity is an instrument which allows an open dialog between different parties with most diverse views. The immunity is a green light for discussions and negotiations, not a means for suppressing them. The present and future of the European patent organisation needs to be faced, discussed and agreed, not enforced by any means.

The independence of international organisation shouldn't become a synonym for isolation or disbalance with the legal order that the organisation is born from. In the independence of an international organisation lies a possibility of a stable/advanced solution, borrowing its strength from diversity. The diversity of experience and legal traditions, which can be turned into a European solution in a constructive dialog.

Anonymous said...

Anon 17:51 - "The council is also a corrupted entity because they have accepted material benefits from BB such as our medical insurance to be used (à volonté) when they temporarily stay in Munich."

People keep saying this, but to me it sounds a very weak argument. Any business person expects to be provided with medical insurance when he/she goes on a business trip abroad. I certainly receive medical insurance when I attend oral proceedings in Munich.

The only question is who pays for it. I would expect it to be paid by the national patent office which employs the council representative. But if the EPO pays it instead, I don't see that as a big problem.

Anonymous said...

The president Battistelli said "privileges and immunities in order to fulfil their mission in full independence from national influence".
The violation of fundamental rights is not part of the EPO mission. That's also why the tribunal lifted the EPO immunity.

TreatyNotifier said...

Anon at 17:11:00 GMT

Anonymous said...

If "dwangsommen" were to be demanded and not paid, then it essentially would becomes a dispute between the Dutch State and the European Patent Organisation. There is provision made for the settlement of such disputes in the PPI (refer to Article 23 et seq.)

I am not a lawyer, so don't take my word for it..., but... dwangsommen in the Netherlands come in 3 types
i) people to government (dwangsom as a result failing decision deadlines
ii) government to people: last onder dwangsom (dwangsom to do something; or else to pay the government
iii) dwangsom in civil law. As this was a cvil law dispute this one applies (which would be payable to SUEPO). I wouldn't see how a civil law dwangsom could become a matter oft he Dutch government (which would trigger the dispute resolution mechanism). The next step after such a dwangsom is seizure of property, which seems very, very problematic....

Anonymous said...

Anon 2101,
Never heard of corruption laws? Imagine you are coming up for re-election. Would giving benefits to the selection panel seem anything other than a bribe? What next? Giving them a loan of a car paid by your company?

I assume the members of the AC will all declare this benefit for tax purposes.

Anonymous said...

Anon 22:16,

When you go on a business trip abroad, medical insurance is a necessary business expense. Far from being taxable, if you had to pay it personally you would claim tax relief on the cost of the premium. And you would complain bitterly that your employer wasn't paying for it.

I'm sure you could find much better arguments than this. By stressing weak arguments, you weaken your case overall.

Anonymous said...

In this publication of Transparency international, we can read “weak human rights protection may create opportunities for corruption”. ( http://archive.transparency.org/publications/publications/other/ichrp_ti_report )

Anonymous said...

Anon 2216,
When was the last time you were aware of a host paying for visitors' medical and dentist expenses? Particularly when the visitors are there to supervise them and give approval or not for their plans?

TreatyNotifier said...

Anon at 16:34:00 GMT said

I heard from Eponians that the ILOAT offers in theory oral hearings, but in substance never do, and thus since immemorial times in the EPO cases
After how many years of such a practice may it also constitute a breach of the Epo employees rights?



This was subject to an interesting case that made it to the Hoge Raad (supreme court) ((http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:HR:2009:BI9632). the court took in point 3.5 note of the 2200 cases at ILOAT without any oral hearing, but stated that the right to an oral hearing was not absolute (if the facts are clear it is not necessary), and it was not clear that reasoned requests for oral hearings would be denied.

In other words, the judge was interested on the principle (would a reasoned request be denied by ILOAT), but was not impressed by arguments based on the quantity of non-oral hearings without further details about cases/case management...

Anonymous said...

A further reply to Anon 22:16,

If you see medical insurance as a "material benefit", just how valuable do you think it is?

In the UK, you can buy a suitable insurance policy covering a 7 day trip within Europe (business or pleasure) for about GBP 10 (equivalent to less than EUR 14). Typically it provides medical cover of GBP 1 or 2 million. It is called "travel insurance", and it covers other risks as well (e.g. loss of baggage).

Anonymous said...

The statement "...different rules would apply to EPO staff members depending on their administrative residence not only for some social rules but following the same logics also for salaries, health schemes, allowances, pensions, etc." is a non sequitur for two reasons

It is also a non-sequitur for the reason that the court did not apply Dutch law, but based itself directly on norms laid down in international treaties (par. 3.18 of the judgment).

I heard from Eponians that the ILOAT offers in theory oral hearings, but in substance never do, and thus since immemorial times in the EPO cases
After how many years of such a practice may it also constitute a breach of the Epo employees rights?


This argument has been tried some years ago before the Dutch courts. The courts rejected it because only numbers had been given (precisely 1 oral proceedings in over 2200 cases since 1992). It had not been argued that in at least some of the other cases a reasoned request for oral proceedings had been made under circumstances that called for oral proceedings to be held.

So in fact this argument is still promising, provided it is well-prepared and backed up with some evidence in the form of recent examples of ILOAT cases.

Anonymous said...

i sems to me that all BB is interested in is to exercise power. That was his aim when - has everybody forgotten? - he kept on putting himself forward for electoion, until he was elected on something like the 23rd round of voting. In previous elections the rule was, I believe, that after three or four inconclusive rounds of voting, new candidates would be sought. This was the first rule that applied to all except BB. He was clearly desperate to get a position where - in his own words - he was beyond the control of parliaments and ministers.
And then came his restructuring of everything. Why else mess around wth something that was working reasonably well for the 40 years and had been an unprecedented success story. Sure there were things that needed improvement, and perhaps even radical surgery. But was interference with DG3 one of those? Or was it simply an exercise of naked power?
Every one of his actions can be explained if one undersands that the game is "I have the power to make you do what you don't want to do, and there is nothing you can do about it".
There is no question that he is an exceedingly smooth andd shrewd operator who managed easily to keep onside all those whose support he needed. Until the day he made what might turn out to be a terminal blunder and decided to interferre with DG3. It was only then that the "patent public" started taking any notice about what was happening in the EPO.
Having said all this, I still fear that in the end BB will get the better of everyone, the governments of the member states won't be paying any serious attention, the AC will vote for everythhing he wants including payment to him of a performance bonus of millions, the new building in The Hague will be named the Centre Battistelli, and the real, long term damage to the EPO that was done under his stewardship will become apparent only much much later.

Anonymous said...

"When you go on a business trip abroad, medical insurance is a necessary business expense. Far from being taxable, if you had to pay it personally you would claim tax relief on the cost of the premium. And you would complain bitterly that your employer wasn't paying for it."

Precisely.

AC delegates are national civil servants. Their "employer" is not the EPO but their national government.

Once can assume that they are covered by medical insurance provided under their terms of employment with their national government. It is a bit difficult to understand what obligation the EPO has to fund such costs.
The primary (and arguably sole) purpose of the EPO social security scheme is to provide for EPO staff who are outside of the national social security networks.

Everybody is free to draw their own conclusions but the impression is being given that not only are AC delegates intent on attacking the conditions of EPO staff whenever they can at the behest of a President whose own contract is secret from them, they also want to milk the EPO social security scheme for their own advantage ...



Anonymous said...

So the EPO is not providing an individual council member with a "material benefit". It is paying a normal business expense which should really be met by the national patent office instead. And the value of this expense would be about EUR 14 if paid on an individual basis - so as part of an existing block scheme it would cost less.

Surely you have better arguments than this?

Maybe you think the value is much greater because for EPO staff the scheme would cover all long term illnesses such as cancer? However, medical travel insurance for a short business trip only provides emergency cover, not for long term illnesses.

Anonymous said...

So why was this "new medical insurance for delegates" (as it is termed in the official minutes CA/79/14) which covers "urgent medical treatment and dental treatment" introduced in November 2014 at a time when the EPO management was emphasising the need for cutting costs etc.

Admittedly, in the overall scheme of things it's a minor point.
As for the costs involved, will we be seeing - in the interests of transparency - any published statements of those costs with a breakdown to reveal which delegations are availing themselves of the benefits ?

For some people the principle counts as well.
But others are obviously content to have such sweetners handed out to the AC.

Presumably the knowledge that they don't have to worry about medical or dental costs will help to concentrate their minds on all that rubber-stamping.

Anonymous said...

Some of the posters here would do well to look at Article 16 of the rules of procedure of the administrative council.

Anonymous said...

These are publicly available on the official website of the EPO.

Article 16 - Travel expenses

(1) The travel expenses incurred by two delegation members per Contracting State in travelling to and from Council functions or in undertaking specific tasks within the meaning of Article 15 shall be reimbursed by the European Patent Organisation at the same level as that payable to permanent employees of the European Patent Office in Group I (grades A7 and A6).

(2) Their subsistence expenses shall likewise be reimbursed, in the form of a daily allowance at the same level as that payable to permanent employees of the European Patent Office in Group I (grades A7 and A6). The allowance shall be calculated at a flat daily rate.

(3) In addition, the Chairperson shall be reimbursed on the same scale for such travel and accommodation expenses as he/she incurs in the performance of his/her duties.

Anonymous said...

"Admittedly, in the overall scheme of things it's a minor point."

Exactly. Surely you have better arguments than this.

"....sweetners handed out to the AC."

This "sweetener" is something that the AC members are entitled to expect. The only argument is who should pay for it, the national patent offices or the EPO. So if the EPO pays, the beneficiary is the national patent office, not the individual AC member.

Wouldn't you do better to argue about the much greater sums involved in the cooperation budget?

Thank you, Anon 09:46, for pointing to Article 16 RoP (travel expenses for two delegation members to be paid by the European Patent Organisation).

Anonymous said...

"urgent medical treatment and dental treatment"

Why do you emphasise "dental"? Travel insurance normally covers emergency dental treatment, as well as other urgent medical expenses.

Anonymous said...

The expression "urgent medical treatment and dental treatment" is unclear (Art. 84 EPC) since it allows for two possible interpretations: "urgent medical treatment" and "urgent dental treatment" or "urgent medical treatment" and "non-urgent dental treatment".

Anonymous said...

I've heard rumours of AC members deliberately walking in front of buses in order to benefit from the insurance. The £10 suddenly becomes many tens of thousands of pounds.

Hardly insignificant.

Anonymous said...

Back to the letter of the supreme leader, please consider reading this:

http://techrights.org/wp-content/uploads/2015/02/EPO-FLIER-14-The-Dictator-s-Dilemma.pdf

Note in particular:
"All modern dictators fall – the question is when"

The end of an authoritarian, egocentric, autocratic, greedy and psychotic leadership is close.

Mr Battistelli, do us a favour, leave...

Anonymous said...

Why should Battistelli leave ?

He has already scored two major victories this week.

1. He cowed SUEPO into submission and made them cancel their planned demonstration to the British Consulate in Munich.

2. He put the judiciary of the Netherlands in their place by showing that he has no need to pay any heed to their silly "human rights" pontificating.

Why should he leave when he is clearly winning ?

Anonymous said...

So, having cast my eyes over the PII for probably the first time, I note Article 14(c) states that the employees of the EPO "shall enjoy inviolability for all their official papers and documents." Does this then prevent the President's men from seizing such papers and documents (and by extension computers)?

Anonymous said...

"Does this then prevent the President's men from seizing such papers and documents (and by extension computers)?"

Not as long as the AC retroactively rubber-stamps it ...

Anonymous said...

Anonymous @ 15:41,

You confuse just who is the EPO.

Hint: it is NOT the examiner in the personhood of the examiner per se.

No, rather, it is the official organization only, of which the examiner is but a cog in the machine. Verily then, the "owner" of the machine has every right to remove cogs whenever he feels like it - for any reason and for no reason. Leastwise, along the point that you endeavor to make, but instead is made opposite of what you would wish for.

Anonymous said...

"Why should Battistelli leave ?"

For obvious reasons. This management style won't hold forever. Read the paper about the dictator's dilemma. He should better leave now before the situation get worse. None of the stakeholders in the IP World need this kind of leadership. It is a lose-lose situation.

"He has already scored two major victories this week."

Do you really think so?

"1. He cowed SUEPO into submission and made them cancel their planned demonstration to the British Consulate in Munich." This demo was obviously a trap in which he fell. It wouldn't have been effective to demonstrate before the British embassy. Forbidding the demo is the best action SUEPO might have expected. All the German papers relate the story. Millions of citizen are aware of his management style. Moreover, I guess journalist might be inclined to deeply investigate on this person.

"2. He put the judiciary of the Netherlands in their place by showing that he has no need to pay any heed to their silly "human rights" pontificating."
Why "silly"? If you call a change in management "social democracy", it is in my view suspicious. An organisation doesn't need "democracy" it needs to be ruled according to the principles of "rule of law" and respect what are considered to be - not silly- human right in Europe. By blatantly disregarding the ruling, the supreme leader attracts again the curiosity of the press. The judgement will be enforceable in a way or the other. Moreover, it constitutes a case law. Wait for a similar ruling before a German court. They WILL enforce the judgement. Acting the way he acts he wins arrogance but loses credibility.

"Why should he leave when he is clearly winning ?"

Conclusion: he should leave because he is clearly losing control over the situation.

Anonymous said...

How will a Dutch or German court enforce the judgment? By levying huge fines for ignoring their orders? BB will just refuse to pay. What then?

Anonymous said...

For instance: the EPO has bank accounts in both countries. A bailiff may seize the amount of a huge fine directly from the account. I see no problem with that.

Anonymous said...

"Wait for a similar ruling before a German court. "

I just saw a pig fly past as I looked out the window.

Anonymous said...

@anon 19.23

Then you live in a wonderful world ;-))

Anonymous said...

"For instance: the EPO has bank accounts in both countries. A bailiff may seize the amount of a huge fine directly from the account. I see no problem with that."

Well then, you appear never to have read Article 3(2)PPI:
"The property and assets of the Organisation, wherever situated, shall be immune from any form of requisition, confiscation, expropriation and sequestration."

Anonymous said...

@anon 21.46

And do you believe that a government will be intimidated by Art 3.2 PPI? You must be joking! The supreme leader does not have an army yet.

Anonymous said...

How will a Dutch or German court enforce the judgment? By levying huge fines for ignoring their orders? BB will just refuse to pay. What then?

It should then (or in fact already now) turn into a political matter.

Art. 20(1) PPI:
The Organisation shall co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice, to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.

Isn't it interesting that this even mentions national legislation? Due to the immunity such legislation will typically not be enforceable through a national court, but the Organsation is not only supposed to comply with it, but is also supposed to allow the host country to monitor its observance. I understand Art. 20(1) to be about good manners. And this has all been in the PPI from day 1.

International arbitration is also an option.

Art. 23(1) PPI:
Any Contracting State may submit to an international arbitration tribunal any dispute concerning the Organisation or an employee of the European Patent Office or an expert performing functions for or on its behalf, in so far as the Organisation or the employees and experts have claimed a privilege or an immunity under this Protocol in circumstances where that immunity has not been waived.

For the procedure to be followed, see Art. 23(2) and (4) and 24 PPI.

This procedure does not apply to disputes between the Organisation and the employees or experts in respect of the Service Regulations or conditions of employment or, with regard to the employees, the Pension Scheme Regulations (Art. 23(3)). But clearly SUEPO is not an employee.

In case of a dispute between an employee and the Organisation that the employee wins in a national court because the court does not consider ILOAT to comply with the requirements of a fair trial and therefore lifts the immunity of the Organisation, it is an interesting question whether the procedure of Art. 23(1) PPI would apply. Maybe it would, as from the point of view of NL it would/should be a matter of the Organisation not respecting the legitimate authority of a domestic court that legally (art. 6 ECHR) lifted the Organisation's immunity, and not merely an employment dispute.

Anonymous said...

One point missed so far about Battistelli's Communiqué 69, that prompted IPKat to post this thread:

The Dutch judgment was against the European Patent ORGANISATION, not against the Office. As such, Battistelli has no authority to decide what to do about the judgment - the Administrative Council must do that.

Has he once more overstepped the mark, as he did with the DG 3 house ban?

Anonymous said...

The discussion is purely academic at this stage.

The Dutch Minister of Justice Ivo Opstelten has stepped in and prevented execution of the judgement. This has just been reported in the Volkskrant.

Another victory for the President !

Anonymous said...

It is today in the headlines of one of the largest Dutch newspapers (De Volkskrant) that the Dutch minister of Legal Affairs, Ivo Opstelten, has stated that the Dutch government will not execute the judgment by action through the court bailiffs. According to the minister the EPO buildings enjoy immunity and Dutch authorities may not act without permission of the EPO President. Further, the Ministry of Foreign Affairs has indicated that The Netherlands are bound by treaty (assumed the EPC) and that measures to execute a judgment can not be taken vis-a-vis the European Patent Organisation.
I just have informed the IPKat of this FrontPage news article, and I assume it will feature in a new IPKat article today.

Anonymous said...

Dutch Minister overrules court judgment. As reported in the Volkskrant:
http://www.volkskrant.nl/politiek/opstelten-bureau-mag-vakbond-weren~a3873491/

Anonymous said...

Quote from EPO communication to staff today:
"The president has just received an official notification from the Dutch government which has decided to undertake some first actions to ensure that the judgement is not executable".

Doesn't refer to the judgement itself regarding human rights. Only its execution? Does this mean the court was right but the EPO can ignore it?

Anonymous said...

Another great victory for the President !

Anonymous said...

"Does this mean the court was right but the EPO can ignore it?"

In a nutshell: YES.

In other words:
IMMUNITY = IMPUNITY !

Anonymous said...

"The Dutch judgment was against the European Patent ORGANISATION, not against the Office. As such, Battistelli has no authority to decide what to do about the judgment - the Administrative Council must do that.

Has he once more overstepped the mark, as he did with the DG 3 house ban?"

Well spotted!

And once again someone - this time a Dutch Minister - has moved quickly to cover for him.

The man has friends in high places.

To find out more, if you can read French, Google "INPI et les Faux et usage de Faux".

Scroll down the page and study the comments by "MOUTON NOIR" to see how well-connected BB is.

Anonymous said...

Hmm, the Executive overruling the Judiciary. I'm sure the President will welcome the precedent and follow it vigorously.

Anonymous said...

Is it possible under the law of the Netherlands for the government to intervene in proceedings in an appeal to a supreme court to quash this decision of the Hague Court of Appeal in order that the Netherlands complies with its obligations under the international treaties?

Anonymous said...

"Hmm, the Executive overruling the Judiciary. I'm sure the President will welcome the precedent and follow it vigorously."

What do you mean "follow the precedent".

Surely he was the one who established it in the first place ?????

Credit where credit is due, please.

Anonymous said...

Where is MaxDrei with his "EP uber alles" when this massive amount of Charley Foxtrot continues to dominate the blogosphere?

Is this really then the system he would wish on every nation (and on the US in particular)...?

Anonymous said...

"Is this really then the system he would wish on every nation (and on the US in particular)...?"

My advice to you: Just stick to your "freedom fries" and leave the rest of us to suffer under the yoke of the cheese-eating surrender brigade ... :-)

Anonymous said...

Anonymous @ 15:14,

This is Anonymous @ 12:27,

You misaim.

I am not the one trying to proselytize incessantly that one sovereign should adopt the laws of another.

I would be more than happy if such attempts were abandoned (and the drek that is the AIA - a blatant attempt by those wanting a One World Order - removed from US jurisprudence and our old way brought back - the way that led us to be the most innovative nation in the world.

Did I say more than happy? I would be ecstatic.

Alas, you should improve the aim of your comment to those so pursuing that agenda.

Anonymous said...

I wonder why no one has so far challenged the ILOAT"story" at EPO. I mean the employees and their representatives, also SUEPO. Here's the real story: ILOAT is NOT a Tribunal in accord with fundamental rights requirements and european rights requirements, so actually there is NO legal competence problem, for a National court, either if it's SUEPO or a single employee challenging EPO. Ok at EPO they must have some kind of internal appeal system, which might even be halfway independent and fair. But once that line is expired, they could jump to National Courts in a blink of an eye. That's why:
-first: ILOAT does not have the fundamental requirements of a natural court, it's not a natural seat for most of EPO employees,
-second: it does not allow hearings ... this is enough, but there's more:
-third: ILOAT does not have any power of enquiry, fact finding, investigation, counter-proof independently the facts they receive submitted, third and last but not least
-fourth: ILOAT does not produce binding verdicts nor judgements or sentences, that EPO or its large than life president shall be obliged to apply, but only they have the status of rather simple "suggestions". If these judgements are applied and followed is simply AT DISCRETION of the president, that has the convenience to do so only because otherwise, the intervention of ANY natural national court would be then automatic !!! ...so that'd be goodbye "immunity" for all non-patent related issues (for which you can forget about PPII altogether).

Like this, EPO and its employees have never had NO natural court at all ! All this if the European Charter and the Declaration of Human Rights have the enforcement they are supposed to have.

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