The chorus swells - another entreaty to the AC about Battistelli

Last night, Merpel reported the unprecedented complaint from the EPO's Enlarged Board of Appeal to the governing Administrative Council (AC) regarding the behaviour of Benoit Battistelli, EPO President, asking the AC to impose “a clear limitation on the executive power”.

In a footnote, Merpel mentioned another letter, from Dr Tilman Müller-Stoy to Christoph Ernst. The letter's author is a well-known litigator and is a partner in the renowned German firm of Bardehle Pagenberg. The addressee is Christoph Ernst, Ministerialdirigent (Ministerial Director) in Germany's Federal Ministry of Justice, in his role as head of Germany's delegation to the AC. The letter, in English translation, can be viewed here, and was the subject of a post last night on the FOSS Patent blog.

Tilman Müller-Stoy, who's asking the
DE delegation to the AC to set the
EPO management straight

Tilman’s letter comes in advance of the AC meeting this week, and he adds his voice to the growing chorus (which includes Merpel’s catcalls) asking the AC to take control of the increasingly troubled management of that organisation.

In his letter, Tilman describes the prohibition on a Board member from entering EPO offices (a de facto suspension) by the President, as:

“a transgression of competence on the part of the Management of the EPO which causes deep concern and is likely to fundamentally question the independence of the Boards of Appeal”.

His letter explains why: under Article 23 EPC, only the AC can remove a Board Member from office, on a proposal from the Enlarged Board. In this case, the President bypassed that safeguard and imposed a “house ban” using his general disciplinary powers over all staff members. (The Enlarged Board's take is slightly different: they say that in addition to the Article 23 mechanism for removal from office, there is an alternative mechanism for suspension, but again only the appointing authority, i.e. the AC itself, can take this decision, albeit on a proposal from the President. Either way, he can't act autonomously and only the AC can remove or suspend Board members.) Tilman characterises this exercise of disciplinary power over a Board member not subject to the regular disciplinary mechanisms as follows:

"However, a transgression of competency of this kind is unacceptable under the principles of the rule of law: The exertion of the disciplinary power by the “executive” over the “judiciary” of the EPO abolishes the separation of powers and jeopardizes the judicial character of the Boards of Appeal which is substantially determined by the independence of its Members."

Then Tilman turns to a second issue which also raises serious concerns about judicial independence:

"In a second point which is less obvious to the public, the President also transgresses his powers. The Chairmen and Members of the Board of Appeal so far have been, as a matter of routine, reappointed after the lapse of an appointment period. Since the issuance of the decision R 19/12 [IPKat post here, and it's a decision to which the President reportedly reacted with fury], no members have been reappointed so far. Whereas according to Article 11(3) sentence 1 EPC the President has a right of suggestion for the appointment, he precisely does not have such a right with regard to the reappointment. In such a case, he is merely to be heard, according to sentence 2. Nevertheless, the President de facto controls the reappointments. He does not limit himself to communicate the members to be reappointed to the Board or to have them communicated to the latter and to eventually give his comments, but he withholds this information from the Administrative Council. It is obvious that Members of the Board whose appointment period is due to expire shortly consider themselves put under pressure by the President until their reappointment has been made. The personal independence, the indispensable requirement of an also critical examination of administrative decisions, cannot be

Upton Sinclair, who said:
"It is difficult to get a man to understand
something, when his salary depends
upon his not understanding it"

guaranteed under such conditions."

Merpel suspects some readers may be wondering why users of the Office should be concerned about an internal matter such as reappointment to the Boards?

Much of the work of the Boards of Appeal is concerned with deciding the rights and wrongs of appeals by applicants against decisions of EPO departments which are under the direction of the President. If one is dependent on the President for reappointment, this must throw up at least the possibility of a conflict of interest when deciding against the President on a matter which is not to the liking of the EPO management.

As one example among many, in T2534/10 a Board held that where oral proceedings have been scheduled for one day, the EPO cannot bring the parties back on the following day if the discussions drag on longer than expected, unless they have been summoned for two days. Merpel imagines that in the President’s drive for efficiency and reduced costs, this must have been a very unwelcome decision, tying up rooms and resources for longer than needed as a precaution against a two- or three-day hearing that might never happen. Would a Board member, approaching the end of his or her term and with no news as to reappointment, want to be seen as responsible for such a decision, or would career prospects be improved by giving the Office carte blanche to call attorneys back if the division in question wanted to prolong the proceedings beyond the scheduled day(s)?

Those who think that such concerns are fanciful have not been paying attention to what Tilman calls the currently prevailing “‘atmosphere of fear and terror’ which results in numerous disciplinary procedures against unwelcome staff members of the EPO.” It does not take much for a staff member to mark oneself out for disciplinary action at the EPO these days, and recent events show that Board members are no longer immune to this regime.

Merpel can do no better in summing up than to quote the final paragraph from Tilman’s letter verbatim:

With these measures of the President, a functioning and balanced system which enjoys great acceptance on the part of the users is ultimately discredited, which should cause all persons responsible for this system, in particular the representatives of the Member States in the Administrative Council to take measures which are appropriate for safeguarding the independence of the Boards.

Time is running out for readers to draw the attention of their own AC representatives to the problems at the EPO, not just as far as the current regime concerns Board members, but also in relation to how the staff generally are being managed. Merpel's said it before and will say it again: just because someone is perceived to have a good benefits package does not mean that they should lose the normal protections of employment law, fair treatment and access to independent, timely and fair dispute resolution mechanisms.