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Wednesday, 27 May 2015

The EPO confirms use of external investigation firms

According to a comment received on her earlier post, Merpel understands that the European Patent Office has responded by means of the following internal Communiqué to the concern about reports that Control Risks (who describe themselves as "an independent, global risk consultancy specialising in helping organisations manage political, integrity and security risks in complex and hostile environments") has been commissioned by the EPO to investigate staff members:
Investigative Unit and external firms
26.05.2015 
Regarding questions raised in recent publications and blogs [Merpel has the feeling that they mean her ...] 
Dear colleagues, 
Some recent publication and blogs have questioned the participation of an external firm in EPO activities related to the Investigative Unit. I want to clarify that because the EPO Investigative Unit is rather small in terms of staffing, we need to be able to contract external companies to support our fact finding enquiries. This is one reason why an external firm can be chosen in regard to an investigation, operating within the regulatory framework of the EPO, under the full supervision of the Investigative Unit. 
The European Patent Office cannot comment on specific internal investigation cases. This lack of comment is to protect the integrity of any such case and protect the interest of all parties concerned. However I would like to remind the Office has a duty of care to its employees including to investigate allegations of harassment against them by other employees. Investigations can only take place following specific allegations, made by EPO staff or external parties, and these investigations are independently and objectively carried out by the Investigative Unit, under its sole responsibility. 
The investigation process of the EPO follows the best international standards and allows persons to be heard, to respond and to defend themselves against any allegations, before any conclusion of misconduct would be reported to the employee's appointing authority. Only in any case where a serious misconduct is confirmed by the Investigative Unit, a disciplinary case could be instigated where the subject has a further right to be heard before a disciplinary committee and before any subsequent decision on a sanction would be taken. 
In 2014, the Investigative Unit received 68 allegations of misconduct (-23% compared to 2013), 50% being already rejected as insufficiently specified.

John Martin
PD Internal Audit and Oversight‎
Merpel welcomes this response, but regrets that it was made only internally, when the concern raised was much more widespread, and wonders what the EPO Communications department is up to.  She notes that, although it is only stated that an "external firm" has been engaged, the Communiqué appears in essence to confirm the original reports concerning Control Risks.

The response does gloss over a few salient facts that have been mentioned in posts and comments in this blog and Merpel wonders if the EPO would like to address these. For example:

1. The "appointing authority" to whom the Investigative Unit presents its report is the President*. It is he who instigates a disciplinary procedure "where the subject has a further right to be heard before a disciplinary committee". True enough, and very laudable ... except the recommendation of that disciplinary committee then goes back to the President who can (and, we are told, frequently does) ignore the outcome of the process. If the disciplinary committee system is even-handed and to be trusted, why are its recommendations ignored?  Indeed, how do the rules even permit this?

* though not for Board of Appeal members and the most senior management.

2. The Investigative Unit is used not only to follow up on complaints between staff members, but also frequently to investigate subjects whom the President has identified to them - it has been mentioned in comments on this blog that this includes a certain member of the Boards of Appeal, and a member of the Central Staff Committee who had the temerity to try to organise a survey on how EPO staff viewed the President's controversial "social reform" programme. Merpel imagines that such investigations have a decidedly sedative effect on other employees who were thinking of sticking their heads above the parapet, or even from serving on the Central Staff Committee.

3. The "best international standards" followed by the Investigative Unit don't include allowing the employee to be represented by a lawyer. Perhaps readers think that "lawyering up" at an early stage is an over-reaction, but consider that the employee may face dismissal without any of the safeguards of labour law available in the EU or other member states. The targets of investigation are severely restricted from even disclosing that they are being investigated, and apparently have an active duty to cooperate, so no "right to silence"; and the Investigative Unit (and by extension, Control Risks) has the power to invade the privacy of the subject to an extent that would cause uproar if it happened in a national patent office or in any private enterprise operating within the EU.

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.

33 comments:

Paul Leonard said...

".......the EPO follows the best international standards.....". Best for whom? Best in what way? So, 50% of allegations are deemed "insufficiently specified". Who makes this assessment and how? If the President is involved at this stage there are effectively no standards, best or otherwise.

Angry Old Man said...

Is it churlish of me to observe that John Martin's little communiqué seems to have been prepared in some haste (or at least he didn't proof read it very well)?

"Only in any case where a [sic] serious misconduct is confirmed by the Investigative Unit, a disciplinary case could be instigated.." Odd syntax indeed.

So, of 68 complaints in 2014 50% have already kicked into touch. I wonder what 'Insufficiently specified' means?

MaxDrei said...

The bit that made me smile was:

"...the Office has a duty of care to its employees including to investigate allegations of harassment against them by other employees"

Why? Because here we are all being reminded that the employee supposedly being harassed, indeed the one to whom all owe a duty of care, the one we must not discuss, the one whose precious human rights we are all exhorted to respect, is of course the President.

My smile is somewhat wan, I must say.

Angry Old Man said...

Max, for shame! The president is human, too, you know, as well as a member of staff...

I am sure that the investigation department is going about its work with all the independence we can expect of a department whose head reports directly to the president.

:-)

1984 said...

John Martin knows what he's talking about. He's the one who was seen taking a member of the Boards of Appeals out of the Office following the direct order of BB.

The Investigation Guidelines of the EPO are the following:
1) You are not allowed to come with a lawyer, you don’t have the right to remain silent and an audio recorder stores everything you say.
2) The "fact finding process" then continues with several guards coming to your office to check everything you have in it. Your phone calls and emails are then analyzed.
3) The procedure is entirely confidential. You don’t have the right to talk about it, not even your friends.

All the collected data and your psychological profile is then given to BB. BB can then decide to launch a disciplinary procedure or not. A disciplinary committee is constituted. It makes a recommendation that BB will ultimately ignore if he has decided to sack you by all means.

Are these really "best international standards"?

It is now blatant that the Investigation Unit (IU) of the EPO is the political police of BB.

1) Last year, the Central Staff Committee tried to organize a staff survey on the "social democracy" reform . BB got furious and sent the IU to suspend the expert who was in charge of organizing the survey.
2) Recently, the IU stole the computer of a member of the Boards of Appeals (a 'judge') and banned him from the Office.
3) Several resignations took place among staff representatives. But BB will never acknowledge his responsibility in these resignations. Now, the IU investigates the remaining ones. Control Risks, an external company, has apparently been commissioned this time. Maybe to give the "perception of impartiality" of the procedure?

The political investigations of the IU are not launched by BB himself. It is important to keep the "perception of independence" of the IU. BB can use one of his cronies for that. For instance, Ms Bergot, Head of the Human Resources and spouse of the right-arm of BB, is a regular "customer" of the IU. Her hobby? To sack staff.

1984 said...

I am reminded that some animals are more equal than others...

MaxDrei said...

As I type this, the TV running behind me is reporting the news, including a FIFA Press Conference to deal with the arrests today of a number of FIFA employees in connection with what the moving authority, the USA Department of Justice, characterizes as "corruption that is rampant, systemic and deep-rooted".

Main point that the FIFA spokesman is very keen to make, above all: in these matters, the President is not involved at all.

It is almost as if the employee seving as spokesman for FIFA had already asked himself: what would my President want me to say here.

Now the Justice Minister of Germany has just been on The News. He reports that what we can learn from the events of today is that no international organisation can hold itself above the law.

I say: what a pity that the USA is not a member State of the EPC.

Superann said...

Has it occurred to the Kat that Control Risks may have been asked to investigate how she gets her information? Any sources could face disciplinary action for "bringing the Office into disrepute". I do hope that she has taken the necessary precautions to prevent this, and that she would invoke the full force of the law against any such unwarranted investigation.

Just sayin said...

1984 says that the hobby of Ms Bergot is to sack staff.
Simple question to verify the validity of that statement: How many staff members have been sacked since she was appointed PD43?

B(est International) S(tandards) said...

Dear Merpel,

all this questions about the functioning of the Investigative Unit - shall I remind you that the Administrative Council of the European Patent Office approved its creation and rules following a proposal of the President?

Moineau said...

@Just sayin' ...

... 3 words:

Hands off Aurélien.

Spartacus said...

@ just saying :

how many fired ? good question !! as the EPO is soooo transparent look at the "social report" in which everything seems to be the Wonderland of dear Alice

@ Best standards

sure they voted the proposal. Does it make it a legal one by reasonable legal standards?

Guys if you find it good that this occuring in 2015 in the middle of Europe so be prepared for a violent turn of the society soon.

After IOs it will be the turn of national civil service and then all citizens.

When you too will be affected do not cry. What is here at stake is not more money and less work but severe violations of fundamental rights

Anonymous said...

I'm sittin' on Frog One quotes…

BB: "When I shall sit, you shall sit. When I shall kneel, you shall kneel. Et cetera, et cetera, et cetera."

AC: "So let it be written, so let it be done."

SR: "We are not going to sit on our asses as the events that affect us unfold to determine the course of our lives. We’re going to take a stand. We’re going to defend it. Right or wrong, we’re going to defend it."

BB: "...you get nothing! You lose! Good day, sir!"

Angry Old Man said...

@just saying:

I agree with you that to say, as 1984 did, that Ms Bergot's job is to sack staff is hyperbole, but what PD 4.3 is actually doing, apparently at the behest of her mentor BB and with great relish, is to provide an environment in which certain classes of staff (low performers, the chronically ill, even just those who are older and too expensive, like me, etc.) are considered as a problem and encouraged to resign and, as an adjunct, in which line managers are encouraged to use the reporting system to line up those who are considered as a problem for the exit, which some of them are now doing.

It is well-known that PD 4.3 considers examiners as a troublesome rabble who should be seen and not heard and preferably paid as little as the EPO can get away with. As is often the case these days, a service department (HR) dominates those it is supposed to serve, a classic case of the PD 4.3 dog wagging the DG1 tail. Who do the work which brings in the fees to pay Ms Bergot her inflated salary (remembering that, having entered EPO as an A3 administrator, she was suddenly appointed A6 Principal Director 3 years later)?

In this sense, while she may not have sacked anybody, she is a key part of a system which is now being geared to identify the 'dead wood' and prune it and, as such, is complicit in any sackings that do occur. These will not come as a surprise to her, more as a pleasure, as HR will be involved from day one of any dismissal procedure.

New at this... said...

Apparently off-topic, but there is a reason why I am posting this...

It seems that a document will be presented for decision at the next AC meeting setting out a transitory regime for the career system of the members and chairmen of the Boards of Appeal. In other words, they will not be thrown abruptly into the new performance-based system like the rest of the EPO employees but will be subject to special rules which essentially amount to the maintenance of the status quo.

In particular, as far as I have been explained, members and chairmen of the Boards will not be subject to the new performance appraisal, won't have a probation period in case of promotion and will not receive personal bonuses; furthermore, their career advancement will continue to be based on seniority (although this last point is made conditional on the number of steps - i.e. the money - available for promotions; what would happen should the steps not be enough is left open for speculation).

These measures apply to 2015 only because the upcoming reform of the Boards should also include a reform of the career system; nevertheless, the existence of this document is for me proof that the pressure from the external world is producing some tangible result, at least as far as the most delicate department of the EPO is concerned. In the alternative, it can also be proof that the EPO management is so incompetent that they consciously enacted a fundamentally flawed reform (because the ignored the warnings of just about everyone else), and they are making adjustments now playing it by ear.

Whatever the case may be, I urge this blog and anyone concerned about the functioning of the European patent system to keep high the level of scrutiny on the EPO, in the hope that future developments will at least mitigate the damage done so far...

Indignado said...



Control Risks in Germany : see scandal of Deutsche Telekom in 2002.

They seem to have been contracted to find out leaks : http://www.spiegel.de/spiegel/print/d-57359775.html

What a lovely CV to be hired by EPO's investigation unit !!

Anonymous said...

The night before the 28th May quotes…

"Come, seeling night, Scarf up the tender eye of pitiful day, and with thy bloody and invisible hand cancel and tear to pieces that great bond which keeps me pale. Light thickens, and the crow makes wing to th' rooky wood. Good things of day begin to droop and drowse, While night's black agents to their prey do rouse."

William Shakespeare

Anonymous said...

Voice of Reason.
With the size of the EPO's income, I recommend they hire an internal team of sufficient size to deal with such investigations. They will find internal resource more manageable and efficient. Too much is made of outsourcing, which I see generally as outsourcing of responsibility and is frequently a sign of a lack of internal skills and experience.

Big Brother said...


Control Risks was involved in the Telekom scandal of 2002, and was involved in illegal activities.
http://www.spiegel.de/spiegel/print/d-57359775.html

This is the kind of company that Battistelli uses against staff and its representatives...

Big Brother said...

More scary links about Control Risks.

http://www.spiegel.de/international/business/the-dark-side-of-power-german-corporate-spying-scandal-widens-a-558510.html

http://www.spiegel.de/international/business/attack-on-customer-data-lufthansa-admits-spying-on-journalist-a-558312.html

http://www.theguardian.com/media/2008/sep/29/press.publishing.germany

Jack Sparrow said...


http://www.spiegel.de/international/business/the-dark-side-of-power-german-corporate-spying-scandal-widens-a-558510.html
http://www.spiegel.de/international/business/attack-on-customer-data-lufthansa-admits-spying-on-journalist-a-558312.html

http://www.theguardian.com/media/2008/sep/29/press.publishing.germany
http://anniemachon.ch/annie_machon/category/mercenaries

creepy innit ?

MaxDrei said...

How interesting, that FIFA President Blatter can shrug off every criticism, except when it is uttered by FIFA's "Key Sponsor" VISA.

How does that leave the EPO's embattled President? Is he subject to any pressure from any "Key Sponsor"? You might argue that individual Member States and individual bulk filers are, in a way, "Sponsors" of the EPO business. But I don't see any "Key Sponsor" at the EPO. Do you?

Is there any sponsor-applied pressure on BB then? I don't see any. I cannot even imagine any arising.

Bad luck Sepp. Lucky you, BB. No need, is there, to tell you to make the most of your good luck while it lasts.

Straw in the wind, however. Cameron just called on Seppie to step down, burbling on about something Big Dave calls "terms of governance". I guess it's a subject dear to his heart.

Roufousse T. Fairfly said...

Part 1/2

Today SUEPO's web site features the reply to their open letter by Control Risks:

To whom it may concern (as your letter was unsigned),

Thank you for your letter.

In all cases, our clients’ confidentiality is one of our highest priorities. Therefore, we do not comment on any specific cases and on our potential involvement. If you have any questions pertaining to the EPO, please direct them specifically to the EPO.

In general, I note your concern and would like to reassure you that Control Risks always conducts a due diligence with regard to the work we take on. Our Code of Ethics ensures that our employees always act in an ethical, independent and objective manner.

Sincerely yours,
Nick Allan
Regional Director, Europe & Africa
Control Risks


WOW!

It would have be more reassuring to read that you, Mr. Allan (I'm addressing you personally since I bet that the present will come to your knowledge in one way or another), pledged to operate within the limits of the LAW, and not merely according to some self-proclaimed, unenforceable, internal "code of ethics". (The links posted by others on your group's reputation in Germany are illuminating, to say the least).

The first binding legal norm that comes to mind is the German Criminal Code (StGB), in particular §201-§206.

There is also legislation for the protection of personal information, which are national implementations of EU regulations. These impose strict boundaries on the collection, storage and use of information concerning individuals, and confer the latter rights to access and correct the said information, in particular:

UK: Data Protection Act 1998 (DPA;
DE: Bundesdatenschutzgesetz (BDSG);
NL: Wet bescherming persoonsgegevens (Wbp).

I suppose that you may be familiar with these statutes, since the Control Risks Group Limited is registered with the UK Information Commissioner's Office:

We process information relating to the above reasons/purposes. This information may include:

personal details
family, lifestyle and social circumstances
business activities of the person whose personal information we are processing
goods and services provided
financial details
education details
employment details

We also process sensitive classes of information that may include:

physical or mental health details
offences and alleged offences
racial or ethnic origin
religious or other beliefs of a similar nature


Your signature states your affiliation with an entity with the abbreviated name "Control Risks", so one couldn't say whether your own involvement with EPO staff are covered with this ICO registration. Companies House lists four UK companies containing this expression, with the following currently active ones:

00148022 Control Risks Limited
01548306 Control Risks Group Holdings Limited
01810707 Control Risks Group Limited

Roufousse T. Fairfly said...

Part 2/2

There are also Dutch and German subsidiaries or affiliated companies:

Control Risks Benelux B.V. (kvk nr 332379470000)

Control Risks Deutschland GmbH (Amtsgericht Berlin Charlottenburg HRB73677B)

This observer supposes that these entities would be the ones involved with mandates performed at The Hague, Berlin or Munich. They are likewise submitted to their respective countries' DPA legislation, and I would expect these to be registered with the appropriate national authorities. Their corporate documents state the following activities:

NL: Het wereldwijd uitoefenen van alle handelingen en het verlenen van diensten met name op het gebied van de veiligheid,[...]

DE: Die Beratung von Unternehmen und Privatpersonen in allen Fragen der Risikokontrolle, insbesondere in Fragen der Sicherheitsorganisation, ausgenommen Rechts- und Steuerberatung.


How does this translate into practice?

Are you compiling files on EPO staff members?

I can't imagine how this could be done without violating the stringent internal data protection directives in place at the EPO, which might still exist on a formal level. The transfer of any records which could occur from or to the employees of your firm would also fall under the purview of national courts. There is IMO no way the EPO's hallowed impunity, sorry, immunity, could extend to external contractors. Is this what Mr. Martin nevertheless implied when he wrote that these operate "within the regulatory framework of the EPO"?

EPO staff rights apparently end at the doorstep of the office. But they haven't quite ceased to exist outside -- yet.

Are you, in addition to seeking and rooting out the "enemy" within, targeting the one without? What immunity could one claim should this be the case?

Incidentally, DPA legislations typically provide sanctions for their non-observance (e.g. §44 BDSG.

In your first paragraph, you state: "In all cases, our clients’ confidentiality is one of our highest priorities.". What is the relative rank of this priority with other ones such as upholding the law?

The Berliner Zeitung published in 2003 an interview with your German operation's chief, whose general tone eerily anticipates the brilliant film Zeit der Kannibalen...

The interesting tidbit was the quotation of the daily rate that was applied back then: Pro Tag und Mitarbeiter sind 1750 Euro fällig - plus Spesen. That's real money here (with or without VAT), the ordinary adultery gumshoe would drool in envy (and examiners too). I surmise that the amounts involved could easily shoot into the 6-figure range. This begs the following question: how can the President or any EPO department appropriate funds for such expenditures without a tender? Under what oversight?

Nick Allan said...




Fairly said, Roufousse T.

Anonymous said...

Wadrinscar says

Quaere: the EPO might have immunity to German privacy laws, human rights legislation, data protection principles, whatever - but Control Risks as a commercial organisation surely does not?

To what extent can a Control Risks operative hired to help out the EPO Politburo avoid prosecution by claiming to have been commissioned by someone with immunity? They surely have much the same status as the EPO's contract cleaners?

CIA/MI6/KGB "illegals" couldn't claim diplomatic immunity because their controller at the embassy had diplomatic immunity, so...?

(Note: beaten to the draw by RTF, but the point stands...)

Spooks vs. Examiners said...

Dear Mr. Allan,

the European Patent Office recently hired whithin the ranks of HR a former (female) french military intelligence officer - one of your stock, I understand.

Having this lady free access to the files of EPO employees - and thus, of the Staff representatives -, I sincerely hope she is not feeding you with informations that would be otherwise inaccessible to you - isn't she?


PS: yes, yes, that was precisely my question at the time: why would the European Patent Office ever consider to hire a former Military Intelligence Officer whithin the ranks of HR? And a french one? It still completely escapes me ...

PS II: yes, as you suggested in your email I directed my questions specifically to the EPO, but they were so keen "to protect the integrity of any such case and protect the interest of all parties concerned" that they did not deny anything.

PS III: pardon my naivety, but since you are n"ot commenting on this specific case and on your potential involvement", this means that you are not denying anything, aren't you?

PS IV: as in the Deutsche Telekom case of 2002, are really hope you are not photographing the Staff Representatives shopping with their wife and children.








following my Staff Representative

Anonymous said...

Congratulations to all EPO examiners!
Productivity increase in the first quarter: 16%. You must have been rather lazy these last years, just as your President said.
I could imagine no better way of supporting Battistelli!

Anonymous said...

16% production increase quotes ….

BB: “Progress isn't made by early risers. It's made by lazy men trying to find easier ways to do something.”

JK: …and still more you gallant Frenchman, are you still burdened with a spirit of narrow-mindedness.

BB: “Yes, I don't know where I'm going, but I'm on my way.”

JK: “You prove again that those examiners, who do not move, do not notice their chains.”

BringbackAliB said...

S un Kings European branch disbanding?
E PO president last man standing?
P retty lonely,not good for mental state.>
P erhaps Robert Mugabe would relocate.

Cameron Marshall said...

Did you see this?

http://www.sueddeutsche.de/muenchen/internes-schreiben-patente-ueberwacher-1.2511405

Anonymous said...

According to this article published on the cover page of much respected Süddeutsche Zeitung, two publicly available computer terminals located on the first floor of the EPO building at the Isar in Munich have been spied out for weeks. EPO staff members, members of the administrative council, members of the boards of appeal AND ... patent attorneys taking part to oral proceedings at in the adjacent hearing rooms might have used the monitored terminals.
Rumors say Control Risks has been hired to find out who is behind the spying.
Battistoritelli

Cameron Marshall said...

This story is now over here

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