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Thursday, 26 March 2015

BREAKING: EPO staff union to win formal recognition?

The President of the EPO and Chairman of the Administrative Council (AC) have just published a joint statement following the recent AC meeting. Merpel is pleased to see that the AC is at last starting to address the crisis in staff relations that has developed in recent years and which has come to a head in recent months.

While nothing is promised other than a kick-off meeting, the intention would appear to be to formally recognise the staff union, SUEPO. It remains to be seen if such formal recognition will include the actions that the Hague Court of Appeal ordered the EPO to undertake, including unblocking SUEPO's emails to staff members, abolishing the President's power to dictate the terms of industrial action, and allowing for collective bargaining. We shall see what develops and as always expect that our readers will have strong views to express in the comments below (bearing in mind the rules at the bottom of this post).

Joint statement from the Chairman of the Administrative Council and the President of the Office
26 March 2015

Call for a social dialogue

The Administrative Council acknowledges the results achieved by the Office and its staff which represent the outcomes of the Efficiency and Quality strategy adopted in 2011.

The Administrative Council confirms its clear will to continue the policy of reforms to the benefit of users. It is determined to address with the highest priority the issue of the social tensions which have occurred in this process.

Therefore, the Chairman of the Administrative Council and the President of the Office will launch new initiatives to restore social peace.

To achieve this, they call for a renewed social dialogue.

They consider in particular that the formal recognition of the trade unions within the EPO's legal framework could create the conditions to re-launch the process and to overcome some longstanding issues.

The Chairman and representatives of the Administrative Council, and the President of the Office with representatives of the management invite the trade unions of the EPO to a dedicated kick off meeting on 22 April 2015.

As ever, Merpel welcomes comments, but begs to remind readers of the following:
Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous".  Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person).  The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning and/or end of the comment itself. This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string.  Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.

76 comments:

smoke but no steak said...

My guess: the unions will be recognized when all the reforms have already been put in place, so that there will be not much to discuss anyway.

firetheprezident said...

If they want the union what happened to their latest reforms ? Were they delayed so to be discussed or implemented anyway?

This recognition was only word for the outside ears.

Bs like usual ?

Roufousse T. Fairfly said...

The Administrative Council acknowledges the results achieved by the Office and its staff which represent the outcomes of the Efficiency and Quality strategy adopted in 2011.

And as a great big "thank you", the AC ransacked the staff's working conditions and trampled their silly human rights, while consenting an undisclosed bonus for the perpetrators?

What kind of "results" are we talking about anyway?

BringbackAliB said...

S ounds like Danny Kaye once noted
T 'is not what the AC alltogether voted

H is cod piece suddenly visible to more
E mperor's tailor is now languishing on Hartz 4
L et bygones be bygones and start anew
E PO staff who trust him are desperately few
N ext stop banishment,defo without a gong
A lmost 200 years after aBBa sang that song

Johnny 99 said...

As to the latest reforms:
- the reform of the BoA was unanimously adopted, but no relocation (Berlin or another building in Munich) should take place
- the highly critizised health reform was adopted with ten abstentions (France, Germany, UK, Italy, Malta, Ireland, Sweden and 3 others abstained) *Sorry, I can't remember all countries*

Г-н хлеб said...

One can read the statement in two different ways considering that we are dealing here with politicians-speak:
-We will only pay lip service to staff consultation and therefore we will do as if some consultation will take place.
-We want to actually back-pedal the mess we are in but because we are politicians, and therefore infallible, we cannot accept we did anything wrong. However, as a sign of good faith, we are obliging BB to sit with his despised union.
I tend to see higher chances for the first than the second one but only time will tell...

Rene Artois said...

If I might sound a note of cynicism: if, as Fly on the Wall suggests elsewhere, the proposed alterations to the BoA were waved through unanimously, BB is still winning the war. The proposal (and at present it is no more than that - the statement does not seem binding) to recognise the unions may be nothing more than a sop to the critics. As any good general knows, you must choose your battles and strategic concession of ground in pursuit of a wider objective may be the rational strategy.

In fact, by recognising the unions, BB may even strengthen his position. This could lend an enhanced perception of legitimacy - in the eyes of credulous external observers - to his claims to have received approval from the staff for his reforms following "consultation" with the unions.

We have seen an inkling of this already in the EPO's denial of human rights violations. Here great significance was made of the fact that EPO employees had exercised their right to strike on 22 days in the last year. If I were the head of an organisation which had witnessed that many strike days (not to mention further requets for strikes which had been denied) I wouldn't necessarily trumpet this as evidence of a thriving relationship between staff and management. I'd take a serious look at what was going wrong and try to ensure that while my staff had an unconstrained *right* to strike, it would be rare that they felt the need to exercise such right. 22+ days of strike action is hardly a cause for pride. Then again, maybe I'm looking at this from too much of a non-Francophone (despite my nom de plume) point of view and as a French fonctionnaire BB views 22 days of strike action as negligible compared to what he expects in his home country...

Bored Panda said...

As long as they do not bring in a mediator (as several times suggested by the staff reps and or SUEPO) there won't be much of a movement and the parties will continue to accuse each other of unwilligness to compromise ... the heads who have to deal with each other are still the same...

Sir Grantsalot said...

This is just damage control. Does anybody really believe this offer is made in good faith?

After having experienced "social democracy" I shudder to think what "social peace" might bring... It sounds like Orwellian/Battistellian newspeak for crushing dissent.

Ok, having said that, the union really has no choice but to appear cooperative, otherwise it will be too easy for Battistelli and Kongstad to use that to their advantage.

If I were the union representatives I would only accept the invitation if certain conditions / ground rules are agreed on beforehand, e.g.:

- agreement to implement order of the Dutch court

- acknowledge to be bound by / respect ECHR

- negotiations not to be limited to future "reforms", but to include revisiting at least major concerns with Investigation Guidelines, New Career System, and Sick Leave and Invalidity reform

- agree to an independent mediator (this is probably the most important item for both parties if they're truly acting in good faith because there's just too much bad blood between them at this point)

Reality said...

Thanks for your optimism, Merpel.

However, judging by how things have been done lately, "formal recognition within the EPO's legal framework" means that new rules will be introduced into the Service Regulations (aka Codex, i.e. the internal labor law) where the President dictates by decree how a trade union in the EPO-world is defined, how it has to be set up, who can be part of it and how it has to operate. Anything outside that legal framework (read: SUEPO) would have no legal standing vis a vis the EPO.

That's a jackpot: no more interference by national courts, trade unions under full presidential control, plus the possibility to publicly claim that the EPO has become even more democratic, social and compliant with human rights by enshrining recognition of unions into its law.

We already saw those developments with (at least) formal recognition of an anti-harassment policy (so called Investigation Guidelines), formal recognition of strikes, formal recognition of democracy for staff representation, and formal recognition of the necessity of the perception of independence of the judiciary.

I have no hope that this will be any different. Any bets?

A sad EPO staff said...

tout ceci est une triste farce !!

the CA has systematically supported all reforms including the most anti social last ones !

in this week end issue of the NRC Battistelli attacks the union and now....love is in the air ?!?!?

Kongstad is known to be the strongest allie of Battistelli since the election of the latter so what can here be expected !

A mere smokescreen it is and a sad day for the EPO civil servants whose fundamental rights are violated by bureaucrats with no democratic mandates...

Patents 20% off today said...

The AC proffers honest negotiations, and just to prove their good faith they rubber-stamp another one of BB's "reform bills". This time, it foresees years of house arrest for incapacitated staff and reserves humane treatment to "terminally ill cancer patients" (quote). What's this about - to add insult to injury?

Anonymous said...

I think that it is a slap in the face of you-know-who and his court, i. e. the MAC. After all, they gave a clear statement that they would not follow the court´s order and now they are ready to talk with the union. Therefore I think that their offer to start talking to the union originates only from the pressure under which the AC found itself. Naturelly, under these circimstances the offer is not comming "from the heart" but from the cold calcule.

Thus, I hope that the union will prepare very cautiously and carefuly for that meeting.

Barbi

Mork said...

Yes, I agree with Sir Grantsalot that SUEPO must set pre-conditions to any talks. To his list, I would add:

- lifting of all disciplinary threats against union reps (or at least an amnesty)

- recording, preferably video recording of all meetings, to be made available to the delegations and EPO staff

Fafnir said...

M Benoit Battistelli has throughout his term of office said very loudly that he wants the dialogue, but the staff representation/union was always spoiling the party. What's going to be different now?
Battistelli apparently said himself that he is an eel - and we all know that eels are very. slippery.
All this surely is nothing but window dressing, and a sizeable majority of members of the AC, and the public and, possibly even they IPKat(s), fall for it - hook, line and sinker.
But, you say, weren't there several delegations who abstained or even voted against some of the worst measures. Answer: Have a look who they are - they are those AC members who need to fear their national courts. Not supporting the measures, knowing full well that the majority vote will carry the day, provides them with a perfect alibi, but were overruled by the majority (don't forget, voting is by the very democratic method of show of hands - as we learnt on this blogspot some while ago)

Aliens in Underpants said...

BB got what he wanted, another stepping stone on the finite journey to his undisclosed bonus. Possible recognition of SUEPO somewhere down the line is a minor headache. As Sir Grantsalot suggested, without mediation and reference to correcting past reforms as a proviso for initiating talks there´s no reason to play BB´s game, he won´t listen to them anyway.
Having legal status will be one less reason for the Munich Labour Court not to investigate the merits of SUEPOs case against the EPO and FRG.

Has the suspended member of the BoA been reinstated?

Chamberlain Victory Cry said...

Don't know what everyone is complaining about, you all have some peace for our time.

Old Man said...

Why does it need nearly one month to start discussions when everything has already been decided.
Unions have been recognised by the predecessors of BB. What is there new in this proposal?
This is no more than giving lip service to "social dialogue".
In other words no more than a smoke screen behind which BB will continue to act as if nothing had happened.

Superann said...

When you sup with the devil, use a long spoon….

At various times in the reign of BB SUEPO has given him the benefit of the doubt. There must be no doubt now. BB is doing this because his public position has become uncomfortable and for no other reason. He will do everything in his power to discredit the union and blame it for any reluctance to engage in discussions which are no more than a fig-leaf and can be prolonged indefinitely.

Hence it is very important that he is painted into a corner which does not allow him to claim bad faith on the part of the Union, or avoid the issues indefinitely. An external mediator is a good idea. A good practice external standard for collective bargaining should be proposed.

Public relations are very important. BB's absurd statement denying breaching human rights can be used against him here. SUEPO should publicly make it clear that it does not trust him an inch based on his record and leave him no wriggle room.

Lastly I would like to congratulate SUEPO for bringing the case in the Dutch court. It is truly a game-changer and we would not have got this far if it had not been done, although it is only the first step in a long battle ahead.


Eine patente Frau said...


Just to be clear, to my knowledge, there has never been any meeting between the EPO management and SUEPO. There may have been meetings where the same individuals were present, but the EPO has never recognised SUEPO in any way. For that reason, it was common for SUEPO members to elect the same people as the central staff committee. If I am not mistaken, letters from SUEPO are, as a rule, not even answered.

identity said...

@Fafnir:
But, you say, weren't there several delegations who abstained or even voted against some of the worst measures. Answer: Have a look who they are - they are those AC members who need to fear their national courts. Not supporting the measures, knowing full well that the majority vote will carry the day, provides them with a perfect alibi, but were overruled by the majority

Note that abstentions do not count as votes at all (Art. 35(4) EPC). Going by what Johnny 99 reports in his comment above, there were 10 abstentions and (I guess?) no votes against. So that means the reform was adopted unanimously! Once again a complete victory for BB.

Amendments of the Service Regulations require a three-quarter majority. Even in the unlikely case that all 38 delegations were still present at the time of the vote, those 10 countries abstaining could have stopped the proposal. They decided not to.

cyrus said...

Ten abstentions?!

What in the hell is that except a complete and utter lack of governance!

Outrageous.


Anonymous said...

Battistelli is exactly my kind of guy!
I can't wait to welcome him to help me re-organise things down here.
Beelzebub

Garfield said...

Nice try of the AC not to take responsibility. IF the president talks successful with the unions, and proposes reforms in line with the law of the member states, and based on proper consultation, that would be certainly nice. Everyone may live happily thereafter, if a similar process is initiated and completed with the BoA.

If this will be the outcome, nice. And if not? Then the AC will have to explain one day why it did not take decisive action, when it could have been legitimately expected, namely in two recent AC meetings. At least, it became very obvious that the AC is completely dependent on the president, and prefers to abstain in numbers so as not to upset the president. What a sad bunch of representatives of so-called democratic states.

Anonymous said...

disappointed says:
BB and the AC show the same attitude as Saudi Arabian courts allowing the convict to receive his whippings under the surveillance of a medical doctor; what a progress !

Sad day said...

The Judgement of the Dutch Court of Appeal "orders EPOrg (including to the AC) to admit VEOB et al. to collective bargaining within 14 days after service of this judgement"

Anyway, the AC violated the Human Rights (and violated the Dutch judgement) and adopted the "health reform" without collective bargaining with VEOB (SUEPO).

This "health reform" will impose inhuman restrictions to the weakest staff.
The purpose of this reform is to reduce the expectation of life of the invalid staff (nonproductive staff)… and spare money for the EPOrg.

How could the staff trust the AC and the EPO management who violate human rights and impose reforms that would be illegal in their country?

Anonymous said...

The recognition of the SUEPO was already used as a tactical step by Pompidou trying to save himself and his reforms from the strikes.
This offer of recognition seems like a boxer grabbing the opponent when he is exhausted.

L'angelo Misterioso said...

So many metaphors to choose from: a "figleaf" to hide their nakedness? Or have they, having exercised their power, "thrown us a bone"?

This looks to me like a cynical attempt to apparently address some of the concerns of the Dutch court without actually doing anything useful. Undoubtedly, there being now very little, if any, good faith on either side of the table, any talks will founder on fundamental disagreements - at which point Battistelli and Kongstad will blame the unions.

Plus ça change...

Like Aliens in Underpants, I also wonder about our suspended DG3 colleague... Will we ever know? Will we ever find out what it was about?

Julius III said...

"Don't you know, my son, with how little wisdom the world is governed?"

Ok, so the damage is done...

I am really wondering, if there is any realistic chance that the "reforms" will be corrected in the furure to be in accordance with international standards? How could this possibly happen? With all respect towards SUEPO, discussion with the honorable AC and the president will lead to nothing.


By the way, what "reforms" are expected to be tackled next?

art. 5 ECHR said...

> Even in the unlikely case that all 38 delegations were still present at the time of the vote, those 10 countries abstaining could have stopped the proposal. They decided not to.

I wonder what is % of examiners coming from the contracting states which voted for a health reform.

> "health reform"

Just as information, there is art. 5 ECHR (right to liberty).
Logic is very simple: a healthy examiner can leave a work place for a coffee brake or a tennis game with a colleague without danger to lose his means for existence.

Fixed home stay hours for an ill examiner, my impression, would not fulfil requirements of subsidiarity and proportionality, since there exist (other) objective means to establish somebodies health condition.

Besides, I wonder whether it would be possible to impose such reforms on examiners, who currently are employed by the office, without negotiations with unions. After all, upon signing their contracts, they agreed to different terms, while now quite major changes are introduced to employment conditions.

Old man of EPO said...

Julius III,
The president had already stayed that pensions need to be looked at. Since there are currently 2 schemes, the need to have 1 (although BB in the AC created this system) gives an opening for larger reform. Rumours include raising retirement age, reducing benefits/maximum pension, slowing down the acquiring of rights etc. It had been delayed already by one year apparently by the unexpected complexity of introducing the new career system.

L'angelo Misterioso said...

@Old man of EPO:

I think we can probably also include such ideas as:

- moving from a final-salary system to a pension based on an average of the last n years of salary, or

- even better, closing the Defined Benefit schemes altogether and moving to a Defined Contribution scheme (which those who joined since the Brimelow pension reform already partly have).

Backdated, of course: God forbid the EPO might have to actually have to live up to the commitments made to me when I was recruited all those years ago.

It is interesting to note that in the past reforms were generally made only to impinge upon newly-recruited staff, to avoid lengthy disputes about whether acquired rights of serving staff were being reneged upon. These days the velvet glove has come off, however, and we see the exercise of naked power, largely for its own sake and without regard to the niceties of previous commitments.

Expect this to happen with pensions, too.

Aliens in Underpants said...

The suspension of the BoA member has been extended based on a report presented to the AC by the Investigation Unit. The AC has decided to launch a disciplinary procedure. The setting up of the Disciplinary Commitee of the AC and the new rules of procedure of the EBoA regarding disciplinary cases were also approved.

"The general orientations presented in CA/16/15 were widely supporrted by the AC. Aiming at improving the preception of independence and the efficiency of the BoA.
"The President announced his intention to work in close cooperation with different stakeholders, in particular members of the BoA and the user community"
Several bananas were thrown from the Presidents podium and eagerly caught by
Mr. Ernst, Head of the German delegation, elected chair of the Budget and Finace Committee.
Mrs Erlingsdóttir and Mr. De Groot, Heads of the Islandic and Netherlands Patent Offices respectively, were elected to Board 28.

Julius III said...

Thank you for clarifying Old man of EPO.

I also wonder how the healthcare reforms will be applied, for example if hospitalization is needed. Would you have to ask for permission now to go to the hospital? And can the request be rejected?

(This question is not meant to be polemic, just not understandable from a practical point of view.)

Dilbert said...

"The Administrative Council confirms its clear will to continue the policy of reforms to the benefit of users. ..."

The members of the AC must have believed that the proposed, inhumane health reform serves that purpose or they would not have adopted those measures, unless, of course:
They are gullible in the extreme (please leave your brains at the guarderobe before entering the meeting room)
Or they act on instruction from their respective alledgedly democratic governments (which, given the democratic pedigree of the majority of member states would not surprise me)
Or they have all been turned into psychopaths and sociopaths who blindly follow their revered leader's instructions (follow the example given)
Or they put a few million income from Battistelli projects above any sense of decency (money before morals)
Or they are subject to pressures from the adminstration about which only the administration and the respective member have knowledge,

Or any two or more of the above.

None of these explanations look particlularly palatable in the 21st century (or do they?) but what other explanation could there possibly be?

Old man of EPO said...

Julius III,
In practical terms - don't know. And directors don't know either. Effectively staff are keen to follow the rules (to avoid any possible trouble) but the roles are so incoherent and not supported by a clear structure that not many people seem to be sure. For instance you are throwing up at 0800 (food poisoning? ). It stops by 0900 and core time stays at 1000 . Do you try to go to the office? If not, you have to stay at home and an office doctor may visit. But if you're not being sick at 1100 (or whenever he can visit), ate you on unauthorised leave?
In practice, directors i know show common sense. But once HR gets involved, who would take a chance?

Anonymous said...

DArepresentifier

As a representative, i am starting to worry now - sickness, invalidity, death and all. Assume i enter the EPO premises TH for an OP. Me or the evil examiner is unhandy and by accident, i remove the one crucial pillar that is still supporting the old Main building. My trainee is buried in the debris that fell on the fundament of the new Main building.

My insurance policy might not cover this (or other more realistic accidents), because it only gives me coverage in certain countries. The EPO is not territory of the host country.

And all the construction workers - are they insured if the remove the pillar?

I guess, OP by video conference is the way to go. Also, you avoid direct contact to all those "sick at work" examiners, right?

Gesundheit!

senior expert said...

The EPO is not territory of the host country.

Don't worry, the grounds on which the EPO is located certainly are territory of the host countries. For embassies it is not different, despite what half the world might be telling you.

The laws of a host country apply in the territory of the host country. However, the immunity provisions limit the possibilities of enforcing these laws against the Organisation (and to a lesser extent its employees). In addition, the premises of the Organisation are "inviolable" and national authorities are not permitted to enter them without the president's consent.

If a murder or some other serious crime is committed inside the EPO, that is an offence against the penal law of the host country. There is little doubt that in such a case the national authorities will be given permission to perform investigations and that, in so far as necessary, immunity of suspected employees will be lifted.

So a representative attacking his trainee or an examiner during oral proceedings at the EPO will not walk free.

Likewise, there is not much need to speculate on the question whether a physical attack by an examiner on a representative during the course of oral proceedings qualifies as an act done in the exercise of the examiner's function (Art. 14(a) PPI). (Still, this question is interesting and I think the answer is "yes".)

Of course this all purely theoretical!

Anonymous said...

"So a representative attacking his trainee or an examiner during oral proceedings at the EPO will not walk free."

How about a male president attacking physically a woman employee? And guess what? It already has happened at the EPO, many years ago, in front of the eyes of many people (the president was not BB). The AC however refused to lift the immunity of the president, despite of an apparent criminal offence and thereby banned the victim to suffering in silence. So, I would not put too much trust into the hope that immunity would be lifted by the AC. The AC has apparently an established record of protecting from penal law prosecution whomever deserves it in their opinion.

Baroness Much-Refusal

Rosinenkacker said...

If a murder or some other serious crime is committed inside the EPO, that is an offence against the penal law of the host country. There is little doubt that in such a case the national authorities will be given permission to perform investigations and that, in so far as necessary, immunity of suspected employees will be lifted.

Really?

What if the President literally punches someone he dislikes? Will he lift his own immunity?

Several people died on EPO premises since 1978. Who officially ruled that these were suicides? How much investigation (national or internal) was there on the causes?

The surveillance of electronic communications at the EPO extends to the public WLAN access points, through which the attorneys communicate. Is this in conformity with German or Dutch law?

These questions aren't rhetorical.

Macavity said...

I want to confirm what Baroness Much-Refusal wrote.
Excesses are not an innovation at the EPO. Some years ago, during a sit-in before the AC, a former president lost it and violently kicked a female employee in the stomach.
She was grievously injured, and had to be hospitalised.
She tried to lodge a complaint with police in Germany, but the EPO claimed immunity.
Only the AC could raise the immunity covering the then president, and the AC did not do so.

senior expert said...

Several people died on EPO premises since 1978. Who officially ruled that these were suicides? How much investigation (national or internal) was there on the causes?

As far as I am aware, on those occasions the national authorities were given permission to enter the premises to investigate the cause of death.

Sceptic said...

Macavity said:

a former president lost it and violently kicked a female employee in the stomach.
She was grievously injured, and had to be hospitalised.
She tried to lodge a complaint with police in Germany, but the EPO claimed immunity.
Only the AC could raise the immunity covering the then president, and the AC did not do so.


Seriously? Which president? Do you have any evidence/proof? E.g., police report, newspaper report?

senior expert said...

Seriously? Which president? Do you have any evidence/proof? E.g., police report, newspaper report?

It was Brändli. See Judgment 1581. Something happened, but I don't know what is true about "violently kicked ... in the stomach", "grievously injured" and "had to be hospitalised".

Sceptic said...

Thanks for the link senior expert.

Well, it appears that the ILO AT had no trouble making short shrift of that compliant: dismissed in just over one page.

No wonder the present president feels so emboldened.

Old man of EPO said...

Senior expert, I think investigation was limited to determining the cause of death but not the reasons for the suicide ( see president's recent interview the NRC Handelsblsd or De Telegraaf in Holland). This they conformed suicide but we're not allowed to check possible work conditions etc.

cyrus said...

Ok, so the CEO of Siemens, Apple, whatever, allegedly hits an employee in Germany and the police will investigate.

The president of the EPO hits an employee in Germany and the police will not investigate because of immunity and the ILO will reject as inadmissible any request to lift immunity, effectively leaving the employee without any means of redress.

What legitimate purpose can immunity possibly provide in this case???

Perhaps, the complainant would have done better in front of the ILO to directly appeal the president's decision to kick her...?

Judge Dredd said...

"What legitimate purpose can immunity possibly provide in this case???"

This whole "immunity" debate - insofar as it concerns the President seems to be missing the point.

The President enjoys "diplomatic immunity" under the terms of the Vienna Convention (VC).

if you check the small print of the VC, the "immunity" which it accords is only with respect to the justice system of a diplomat's "host state" but not that of his "sending state".

In principle at least the President of the EPO could be hauled before the courts of his home state.

Braendli could not have been charged before a German court but a Swiss court might have accepted jurisdiction.

cyrus said...

@ Judge Dredd,

Great, well then I hope that SUEPO is seriously considering filing a complaint against Battistelli in France...

senior expert said...

Maybe Judge Dredd should not suggest that others are missing the point here.

The President of the EPO enjoys "the privileges and immunities accorded to diplomatic agents under the Vienna Convention". However, it is not the Vienna Convention that confers these privileges and immunities on him, it is Art. 13(1) PPI. The content of those privileges and immunities is defined by the Vienna Convention, but the conditions under which it can be waived are not.

The President is not a "diplomatic agent" and there is no "sending state". In addition, there is no single "host state" as there is for diplomatic agents. He has diplomatic immunity in all Contracting States. His immunity can only be waived by the Administrative Council (Art. 19(2), last sentence, PPI).

Diplomatic agents have immunity for the benefit of the sending state. Therefore only the sending state can waive it. The President of the EPO has diplomatic immunity for the benefit of the Organisation. Therefore only the Organisation can waive it.

So, when EPO president Pompidou got in trouble after the discovery of 351 dead foetuses (really), he was safe from prosecution by the French authorities at least until the expiry of his term. In the end the French prosecuter apparently found no violation of French criminal law. So he was also not prosecuted after his term ended, which in principle should have been possible given that the relevant acts were committed before his term. See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), International Court of Justice, 14 February 2002, par. 61, even though that is about the diplomatic immunity enjoyed by foreign ministers when travelling abroad.

The Managing Director of the IMF only has functional immunity, i.e. only for acts performed in his/her official capacity. As a result, any country in which the Managing Director stays can effectively remove him/her from his/her position when it so desires by arresting him/her under false pretenses. So there actually is a point in according the President of an international organisation full diplomatic immunity.

Btw, Art. 41(1) of the Vienna Convention:
Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of that State.

senior expert said...

@Old man of EPO:
Senior expert, I think investigation was limited to determining the cause of death but not the reasons for the suicide ( see president's recent interview the NRC Handelsblsd or De Telegraaf in Holland). This they conformed suicide but we're not allowed to check possible work conditions etc.

That's why I said the national authorities were allowed in to investigate the cause of death.

I don't think the reason for a suicide is a matter for the police, whether the suicide happened at home or at work, at an international organisation or at Siemens.

I'm not saying that the labour inspection must be refused entry, but I do note that at least the most serious of incidents do get investigated by national police.


@cyrus:
Perhaps, the complainant would have done better in front of the ILO to directly appeal the president's decision to kick her...?

Probably. And I honestly don't know, but I suppose that she did. Or rather, that she requested some amount of damages and that there was a settlement on that point. Otherwise I would expect there to be a claim for damages in connection with physical injury somewhere in the ILOAT database. There does not seem to be one, even though there was a claim for damages due to an alleged suffering caused by the decision not to waive immunity.

Judge Dredd said...

@Senior Expert

I take your point about "host states" and sending state" w.r.t. the EPO President but have you looked at Article 13 PPI in combination with Article 22(a) PPI?

Article 13 PPI
Article 13
(1) Subject to the provisions of Article 6, the President of the European Patent Office shall enjoy the privileges and immunities accorded to diplomatic agents under the Vienna Convention ...


Article 22 PPI
No Contracting State is obliged to extend the privileges and immunities referred to in ... Article 13 ... , to:
(a)its own nationals;


From this it would appear that the Contracting State of which the President is a national is not obliged to grant him immunity.

I do of course realise that "is not obliged to do X" does not equate with "will not actually do X".

All I was saying in relation to the Braendli case is that a Swiss court might have accepted jurisdiction. My reading of the PPI is that they would not have been obliged to grant him immunity.

Let's say for the sake of argument that he kicked another Swiss citizen, then it would essentially be a dispute about an alleged assault between two Swiss citizens one of whom was trying to invoke "immunity" to evade prosecution. So the court would have to decide what took priority: granting one Swiss citizen) (the plaintiff) "access to justice" or allowing another Swiss citizen (the EPO President) to evade justice by invoking his "immunity".

It seems to me that the PPI would give the court some leeway to decide for itself.

Freiherr von Knigge said...

The President is not a "diplomatic agent"

Well I think that we can all agree on that. Anybody who goes around shouting "Je m'en fous de votre opinion" to his consultation partners would appear to be sadly lacking in diplomatic skills.

Sadly the Vienna Convention doesn't appear to have any Code of Conduct associated with it.

senior expert said...

@Judge Dredd:

Oops! You win, I lose... :-)

I missed Art. 22 PPI. Thanks for the correction.

I don't know if a Swiss court would have had jurisdiction in the Brändli case (it might indeed have helped if the victim was Swiss as well). However, it seems the French prosecutor could have prosecuted Pompidou if it had seen the need to. I imagine that the French prosecutor would still have been reluctant to do so, but Pompidou probably would not have been able to claim immunity.

I don't know if any Contracting State has "extended" the privileges and immunities to its own nationals. Maybe that could be done in a seat agreement, but Switzerland does not have one with the EPO. I just checked the "Sitzabkommen" between Germany and the EPO and it specifically excludes German nationals and persons referred to in Art. 22(b) from the privileges and immunites referred to in that article.

Hmmm, Brändli might still have been able to claim immunity vis-à-vis Switzerland on the basis of Art. 14(a) PPI. It could be argued that he kicked "in the exercise of his functions" and not e.g. in a private capacity. But I'm not sure if this is the right way to look at it.

Anyway, I don't think it will be easy to convince the French prosecutor that BB has committed a crime (let alone one for which French courts would have jurisdiction). At least I'm not aware of any. And for crimes against humanity there would anyway have been the International Criminal Court, immunity or no immunity (Art. 27(2) Rome Statute).

Anonymous said...

Well-informed reports:
It seems that after the last unpleasant (for him) developments Mr Battistelli is ready to resign in exchange of a considerably high handshake from the EPO.
"Either I carry out the reforms my way or I go" he apparently shouted at some delegates who had abstained. One delegated pointed to the door with a smile. It seems that at this point Battistelli left in anger.

Cheshire Cat said...

Hmm, is the last post from this morning (1st April, 07:02, Anonymous) an April fool's trick or really based on some reliable information???

Anonymous said...

Well-informed says to Cheshire cat et al.
These are of course the news many of us are waiting for.
Only instead of a golden handshake a big kick in the .....

Dilbert said...

Could the anonymous of 07:02 BST please confirm his post tomorrow, so we know it is just a coincidence that it was posted on 1 April.
And should it be indeed true,, the motto is that "what follows is hardly ever any better", and I have a few candidates that I am sure fit that particular bill for next president of the EPO (in no particular order):

Topic (HR)
Kongstad (DK)
Grossenbacher (CH)
Ficsor (HU)

Does anyone honestly think that things will get any better after BB leaves ? And if so, why?

Anonymous said...

Well-informed = Anonymous at 7:02 states:
Dear all,
April 1 has gone, but the resignation of BB is on the top of the wish list of the greatest majority of patent people.
The possible candidates put forward by Dilbert don't inspire any good feelings. The EPO has unfortunately become a rotten institution under BB and I'm afraid it will remain rotten and dis-functional for long unless the governance problem is seriously tackled and solved.

Anonymous said...

I seem to recall that one of the reasons BB was elected as president was because of the fuss SUEPO were making in relation to Herr Grossenbacher as an alternative candidate. Is my memory deluding me after so many years or is this a case of " whatsoever a man soweth, that shall he also reap"?

Wrote H. Bosch

Aliens in Underpants said...

@Anonymous 06:30

I disagree that the EPO has become a rotten institution. According to the activity report 62% of the staff are examiners or BoA members. 13% work in formalities, the rest 25% are termed "others" in the report. Despite the actions of upper management, it is a testament to the commitment of the staff that the office continues to function. The staff are the EPO. It is only a small parasitic fraction of the office that is rotten.

Quousque tandem? said...

Speaking of testament, let's have a thought for our unfortunate EPO colleague who put himself an end to his sufferings in Munich this week.

Anonymous said...

@Quousque tandem:

From your comment I infer there was an EPO staff member suicide this week.

Can you confirm and perhaps provide some information or link to a news story?

Thanks in advance.
A concerned colleague

Shocked said...

Quousque tandem? said:

"EPO colleague who put himself an end to his sufferings in Munich this week."

Is this some kind of poor belated April fool's joke?

What do you mean?

robot said...

He means that the unfortunate colleague member of the most productive (by far) directorate in the cluster has committed suicide.

He is the second (after the The Hague case) of this unfortunate cluster, also working in one of the top productive directorate.

Speaking of testament too:

The EPO Academy system has also been put to an end by the enlightened EPO management. 10 days on 32 of the really first Academy time with experienced instructors have been abandoned and replaced, for newcomers, by 10 days of "work on their own files" with active examiners. This fact shows how high, quality and well trained Examiners are valued by the EPO visionary management.

Quousque tandem? said...

I wish it would be an April fool's joke. The bad news of his death was laconically published earlier this week on the EPO intranet. Out of respect for his family you will not get more details from me but the fact is real.

Quousque tandem? said...

Thanks Robot.
For citing a known person, its just a strange rumour.

MaxDrei said...

I want to say something about EPO Examiners, based not only on individual files but also on my attendance at EPO Academy events like "Examination Matters".

I find EPO Examiners to be trying hard to do a conscientious and pragmatic, high quality job. training is a non-stop job, not only for representatives but also for Examiners. If the Academy is being wound down, that's terrible.

I am appalled by what I read about management ideas of "quality". It seems to think that what raises quality is statistics, bean counting and ISO certificates. Imagine what happens to a patent law firm if the only thing you measure is how many hours an attorney has billed out, and the only ones who get offered a partnership are those who are top of the billing figures. The clients will go, one by one, fed up with the poor service.

Robot said...

Hi Max,

"I am appalled by what I read about management ideas of "quality". It seems to think that what raises quality is statistics, bean counting and ISO certificates."

And their financial own and well deserved BONUS :)

Catbert said...

...and yet another post by the one called MaxDrei that appears not connected to this reality.

MaxDrei, most law firms do exactly what you prophesy for them not to do, and the overwhelming majority have done so since the 1970's.

The ones that succeed at maintaining those billing figures have figured out that such can be done only when the billing figures are accompanied with at least a certain passable level of quality. There is NOT the inverse relationship that quality must be sacrificed that you seem to imply (there are more than just two dynamics in play).

Further, those things that you actively denigrate: the ISO certificate and bean counting, are currently used by non-law firm companies the world wide in order to excel at what they do. Such simply follows the Deming path of modern management.

I will fully grant that many attempt these modern practices unsuccessfully, incompletely, and, as Robot notes, sometimes with the wrong ends in mind, but it is a grievous mistake to blame modern management principles for the poor execution of those principles.

Your laments then, only exhibit your own lack of understanding, only highlight the error of your own views, only exhibit that you need to open your mind to understanding of a larger picture, one that recognizes the value of "bean-counting" and ISO certificates, when those tools are executed properly.

As to the loss of human life through the decision of suicide, that is deeply regrettable and my heart goes out to the family and friends of those left behind. Clearly, such is an indication that something is amiss, and that the execution of striving for ever more productivity has missed a human element in a critical management role. The use of the Deming tools is NOT all automata, (to coin a word), but necessarily recognizes that humans are intimately involved in the process.

MaxDrei said...

Reading Catbert two things come to mind:

1. The tail should not wag the dog

2. The Japanese are right, when they assert that it is the job of management to see to it that those at the coal face are as productive as possible. Counting is only part of it. You have to measure the right things, only the right things, and all of the right things.

Sir Grantsalot said...

@ MaxDrei:
Thank you for your supportive comments.

@Catbert:
In order to succeed in a reputable law firm, I imagine an attorney needs excellent legal and technical skills as well as a wide range of business, leadership and management skills. Surely, billable hours alone won't cut it -which is really all MaxDrei said.

Perhaps if you read the comment with a view to understanding what is written there, you could spend more time intelligently commenting on the contents of his comment instead of just spewing a bunch of management principles mumbo jumbo and ad hominem attacks.

Catbert,
you've clearly chosen an appropriate name for yourself. It's time to get back to your random policy generator.

Catbert said...

SirGrantsalot,

Please feel free to point out with particularity where I have erred, instead of merely mouthing that I have done so (and thus falling to the very ad hominem that you accuse me of).

Clearly, if you had read my post, you would see that I distinguish the "billable hours alone" while pointing out that a disdain for billable hours at all is simply a nonrealistic view.

And yes, the Catbert pseudonym was chosen for the over onerous connotations, but the subtlety there appears to have gone over your head.

Sir Grantslot said...

Catbert said:
"Please feel free to point out with particularity where I have erred, instead of merely mouthing that I have done so (and thus falling to the very ad hominem that you accuse me of)."

Merely mouthing that you have erred, as you put it, is not, as far as I understand it, an ad hominem attack, which assaults the character or intelligence of the person making the argument. I believe it's more a case of argumentum ad lapidum, which attempts to dismiss the opponent's argument without providing any evidence or real argument.

"Clearly, if you had read my post, you would see that I distinguish the "billable hours alone" while pointing out that a disdain for billable hours at all is simply a nonrealistic view."

I'm a bit confused by your reference to your post with a quote from my own. Nonetheless, I think we can all agree that billable hours alone won't cut it, which is what MaxDrei had asserted. I do not believe he asserted a general disdain for billable hours. After all, at the end of the day we must all find a way to pay the bills.

"And yes, the Catbert pseudonym was chosen for the over onerous connotations, but the subtlety there appears to have gone over your head."

Hmm. Yes, I'm afraid it still does...

Ok, so I really don't want to engage in some puerile pi**ing match with you. Particularly since you may in fact be my own Catbert, the Evil Human Resources Director. But also because you clearly have a background in management principles that I do not. I honestly would appreciate it if you used that experience and knowledge to enlighten the rest of us as to how the EPO could, or presently is, applying such principles.

You referred to Deming. Based on my admittedly very limited knowledge of Mr Deming and his contributions to modern management (based almost entirely on his wikipedia page), I make the following observations.

- It seems Mr Deming's major contribution was teaching Statistical Process Control to the Japanese auto industry, which helped them manufacture better cars. I wonder how transferable such methods are to intellectual property "products", like patents. Particularly, and among other reasons, since there is no control over one's "suppliers".

- Mr Deming's greatest legacy appears to be his 14 Management Principles. Frankly, however, the practical import of many of these principles, in the context of patent examining, are lost on me (which doesn't mean they don't apply to other aspects of managing a patent office), but there are a few that resonate, namely:

6) Institute training on the job. (Unfortunately, according to robot's comment above, the EPO appears to be moving away from this principle)

7) Institute leadership. The aim of supervision should be to help people and machines and gadgets do a better job.

8) Drive out fear, so that everyone may work effectively for the company.

10) Eliminate slogans, exhortations, and targets for the work force asking for zero defects and new levels of productivity. Such exhortations only create adversarial relationships, as the bulk of the causes of low quality and low productivity belong to the system and thus lie beyond the power of the work force. Eliminate work standards (quotas) on the factory floor. Substitute with leadership. Eliminate management by objective. Eliminate management by numbers and numerical goals. Instead substitute with leadership.

12) Remove barriers that rob people in management and in engineering of their right to pride of workmanship. This means, inter alia, abolishment of the annual or merit rating and of management by objectives.

13) Institute a vigorous program of education and self-improvement.

maxdrei said...

Grantalot,thanks.
Readers,be aware that Catbert is the poster from Patently O who goes under the name of anon. My advice to you is to ignore the troll. The more you feed it, the more tedious it gets.

Anonymous said...

The ordinary man says…

It is fact that the ordinary man is passive. Within a narrow circle (home life, and perhaps the trade unions or local politics) he feels himself master of his fate, but against major events he is as helpless as against cronyism. So far from endeavoring to influence the future, he simply lies down and lets things happen to him.

All the evidence shows very clearly that if you are a member of a trade union you are likely to get better pay, more equal pay, better health and safety, more chance to get training, more chance to have conditions of work that help if you have caring responsibilities... the list goes on!

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