Former judge says actions of AC and Battistelli "devoid of any legal basis"

Prof. Dr. Siegfried Broß is probably better known to Merpel's German-speaking readers than her English-speaking ones. Suffice to say he's a highly respected former judge, who sat for 12 years on the Patent Division of the Federal Court of Justice (Bundesgerichthof), and for a further 12 years on the Federal Constitutional Court (Bundesverfassungsgericht).

He has been interviewed by Juve (a leading German magazine for lawyers), in an interview published a few weeks ago. Juve have kindly permitted Merpel to republish an English translation, which may interest English-speaking EPO watchers. The interview was conducted by Christina Geimer and Mathieu Klos from JUVE, Germany. Merpel is responsible for its translation, for which she thanks a kind reader.

Merpel notes that by coincidence, Juve has today published a rebuttal of the interview below, with EPO Vice-President Raimund Lutz. Merpel would be happy to publish such a rebuttal here, in line with her long-standing invitation to the EPO management to air its side of the story.

Incidentally, Merpel is juggling a few issues at the moment, and expects to follow up on other EPO-related matters very soon.

Juve - 29.10.2015

EPO Disciplinary Proceedings: 

"The actions of the Administrative Council and Battistelli are devoid of any legal basis."

The European Patent Office (EPO) suffers from a fundamental structural problem. Only a Diplomatic Conference of its Member States can help one of the world's largest patent offices to emerge from its current crisis. This is the view expressed by Prof. Dr. Siegfried Bross, a former judge of the Federal Constitutional Court (Bundesverfassungsgericht) and the Patent Division of the Federal Court of Justice (Bundesgerichthof) in an interview with JUVE

JUVE: Two years ago, as a legal expert for one of the parties in a complaint before the Federal Constitutional Court, you analyzed the question of the independence of the EPO Boards of Appeal. What conclusions did you come to at that time?
Siegfried Broß: The EPO Boards of Appeal are not an independent court. We are dealing here with a self-evident intermeshing of the roles of the President of the Office and the supervision of the Boards of Appeal. Therefore, the Boards of Appeal cannot be considered to possess the character of a court.

Juve: A lot has changed since you issued your legal opinion. The President of the EPO has imposed a house ban on a Member of the Boards of Appeal. In addition to that, Benoît Battistelli's reform proposal is now on the table. What conclusions do you draw today?
SB: These developments, especially the reform proposal, do nothing to alter the fundamental
incompatibility of the EPO's structure with the European Convention on Human Rights (ECHR), the European Charter of Fundamental Rights and rule-of-law-based democratic principles. The President still remains at the head of both the administrative and the judicial departments of the EPO and can exert influence on the Boards in terms of staffing and material issues. 
Juve: What needs to be done to remedy this unsatisfactory situation?
SB: The Boards of Appeal should be completely separated from the EPO and provided with their own management and budgetary resources. Furthermore, all personnel links to the EPO President should be severed. In addition, the European Patent Organisation should introduce life tenure for judges. These are matters which require action on the part of the Member States. They cannot absolve themselves from their obligations to uphold fundamental rights guaranteed by international conventions and/or by national laws merely on account of their participation in an international association of states. As a matter of fact, Germany should never have been allowed to participate in the European Patent Convention in its present form.

Juve: In the context of disciplinary proceedings against the suspended judge, the Administrative Council has recently requested the competent Enlarged Board of Appeal to make a proposal for his dismissal. What is your opinion about this?
SB: To begin with, it is must be noted out that the disciplinary proceedings
initiated in this case do not comply with the rule of law but rather have been conducted in a manner comparable to criminal proceedings. Therefore,  generally recognised principles such as the presumption of innocence under the ECHR and Charter of Fundamental Rights apply to those affected. Ab initio the EPA procedure has not been conducted in a proper manner because it has been directed by the President. According to rule-of-law principles, disciplinary proceedings against judges should be conducted exclusively by independent judges. From this perspective, these disciplinary proceedings are pre-destined to collapse.

Juve: The EPO published the main allegations against the accused person in a Communiqué. Is this compatible with international principles?
SB: In a disciplinary procedure the principle of confidentiality is of fundamental importance, in  particular having regard to the presumption of innocence. That does not mean that press releases are prohibited, but any kind of polemical content should be avoided.

In addition to this, in an internal e-mail to all EPA employees, a copy of which was provided to JUVE, Battistelli has publicly disseminated further accusations of a personally denigrating nature against the judge.

Such behavior is unacceptable. From the very outset, the actions of the President were devoid of any legal basis.

Juve: The basis for the Administrative Council's decision was, a report by an external investigation unit. Can this be used as a basis for the disciplinary tribunal?
SB: The deployment of this investigation unit provides the clearest possible confirmation that the disciplinary proceedings is not based on an approach which complies with the rule of law. The course of action which has been adopted could not be more flagrantly at odds with the international conventions to which all the Member States have subscribed.
Juve: What possibilities does the Enlarged Board of Appeal have now?
SB: They should reject all the requests of the Administrative Council and terminate the proceedings in order to draw attention to the fundamental abuse of procedure.

Juve: What impact might these problems have on the upcoming unity Patent?
SB: The Administrative Council must ensure that the EPC contracting states adhere to rule-of-law-based democratic principles and enforce an organisational separation of the administrative and judicial departments of the EPO. This is all the more urgent, because the Agreement on the Unitary Patent couples the EU in a blatantly unlawful manner to these structures. The regulations governing the Single Patent only provide effective legal protection in the case where a patent application is successful. If the EPO in its capacity as the competent administrative instance rejects an application, then the applicant cannot submit this decision to an independent judicial review. Such a state of affairs is contrary to Article 47 of the Charter of Fundamental Rights and, likewise Articles 6 and 13 ECHR.

Juve: Could a potential complaint against the Unitary Patent, for example before the Federal Constitutional Court, be based on such considerations? 
SB: Yes, of course. Due to the fact that it is only the owners of rejected patents who enjoy no judicial protection, there is additionally a violation of the right to protection of property enshrined in the ECHR. In additional, there is no objective reason for this omission - the formulation of the [Unitary Patent] Agreement is arbitrary in this respect.
The interview was conducted by Christina Geimer and Mathieu Klos.

Original German text available online here.

Former judge says actions of AC and Battistelli "devoid of any legal basis" Former judge says actions of AC and Battistelli "devoid of any legal basis" Reviewed by Merpel on Tuesday, November 17, 2015 Rating: 5


  1. bang on my head : Tonight I heard that 2 staff reps / union officials of Munich have been suspended and that they have a house ban !!!!

    why is Britain, France, Germany, et al. allowing for this to happen !!


  2. Apparently 3 union officials now suspended in Munich tonight with house ban !!!

  3. Monday on the EPO web-site:
    "As an international organisation the European Patent Office believes in an open and inclusive society based on fundamental principles of freedom, equality and justice."

  4. Someoneabovethelaw comments:
    Interesting to see how Mr Lutz attempts to defend the legal wrong-doings of Battistelli (and indirectly his own legal advice to him). How could this guy become President of BGH and Vice-President of the Legal Department of the EPO???!!! How patethic his rebuttal!

  5. The decision on the suspended board member is out.The end game begins!!!


  6. I can confirm that - 3 staff representative that just today partecipated in the SUEPO general assembly have been suspended and are under house arrest.

    Between them ... Elizabeth Hardon.

  7. For clarity, Lutz is Vice-President of the EPO and with particular responsibility for DG5 which includes legal and international matters - he is not just VP (I.e. 2nd in charge) of the Legal Dept.

  8. Come and see the violence inherent in the system!Tuesday 17 November 2015 at 21:56:00 GMT

    "The decision on the suspended board member is out."

    @ Anonymous

    Where it is? Can you provide some details?

  9. MERPEL my dear cat why is it not possible to post links or pdf on your website so it would be easier to provide documents to the readers

  10. Someoneabovethe law replies to Old man of EPO:
    Dear Old man of the EPO for the clarification. It does not however change the gist of the comment. Actulally it seems to aggravate the position of Mr Lutz as one wonders why and how........

  11. @Anonymous 21:21
    @Come and see the violence inherent in the system! 21:56

    Not so exciting. From what I hear the enlarged board has issued the written decision declaring the request of kongstad to be inadmissible. I dont think the decision will be published (officially).

  12. Someoneabovethelaw,
    Wasn't debating your point - just wanted to clear up the possible misunderstanding about his position in the hierarchy. Indeed, as you say, he can't be excused as being junior.

  13. I think someone confuses things. I camp not believe the staff reps are under house arrest. I think that the EPO cannot keep hostage people, not even EPO employees. It is much more likely the staff reps have a boys ban, meaning they are not allowed to go to work. I cannot believe the cynicism!

    Sad person

  14. Sad person apologizes: it should read: staff reps have a house ban. Sorry for the unintended pun!

  15. A boys ban?? Well wouldn't that just be a result of a house arrest?
    OK. They will, presumably, be not at the mercy of auto-correct but actually be undergoing a house ban (where the house is the EPO).

    PS Since this is a disciplinary matter, is it permissible to reveal this fact or has BB just broken his own rules? I'm confused.

  16. That is all so cynical! Staff may not say anything, but BB orders his VP1 to give many details of the board member's case to the press. He makes rules strictly applied to staff, but sees no reason to keep to the rules himself. Sounds familiar?

    Said: how cynical can you get?


  17. what the EPO top management is currently doing is simply disgusting since they are actively organising a smear campaign:

    on the top of fully fabricated cases against several staff reps, they now have hired this NL company which calls journalists in the NL to "sell them the other side of the story". They do the same in Germany with the DE branch of FTI.

    Also the press dept of the EPO has contacted several media (evidence of this exist) to inform them of suspensions which, at the time they spread it, had not even been communicated to the individuals concerned !

  18. The remaining staff representatives were able to organize in a couple of hours a manifestation today in front of the main Building of the EPO in Munich at 12:30.

    I attended it. I estimate that there were between 1500-2000 people - and these are conservative numbers. I rarely have seen so many people at once in from of the main building of the European patent Office in Munich.


    The French deputy for the Low Countries.

  20. Any employee would have been fired with the loss of all privildges like company pension with such a blatant refusalm to follow a direct order.
    The honourable president of the EPO has been ordered by the Administrative Council to negotiate with the unions for a formal recognition...

    Another examiner fearing the loss of EPO's independence due to BB's actions.

    BTW, props to all colleagues in Munich who participatd on such a short notice!

  21. Techrights has a couple of pictures of the manifestation today in front of the EPO.

    I am proud I was there.

    Meltdown at the EPO, Massive Staff Protests This Afternoon


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