Battistelli falls out with Board 28

Merpel has been receiving a stream of rumour and hearsay since last week, indicating a serious bust-up between EPO President Benoit Battistelli and the members of Board 28 (the sub-group that runs the business of the Administrative Council). Notably, Mr Battistelli has apparently lost the crucial support of Mr Jesper Kongstad, the Chair of the Administrative Council, who had until now been one of Battistelli’s key defenders. The final meeting allegedly culminated in an ultimatum to Mr Battistelli to which he allegedly responded by walking out of the meeting.

Merpel has been slow to pass on these reports as she prefers to report verified facts and not mere unsubstantiated rumour. As a result much of the comment moderation over the last week on this site has involved repeatedly deleting well-intended reports of what the latest whispers around the EPO were saying – deletions which Merpel justifies on the basis that the whispers were not always in agreement and were rarely substantiated.

Merpel has however received from several sources, some of which are normally reliable, the text of a letter attributed to Mr Kongstad and addressed to the AC delegates. This draft letter is accompanied by a draft resolution for the AC to sign off on at its meeting in March. Merpel strongly suspects that the text which is being passed around the EPO is not the final draft that will be (or has been) sent by Mr Kongstad, but the gist of the communication is clear nonetheless.

Mr Kongstad’s draft letter to AC delegates

In his covering letter, Mr Kongstad explains that a series of meetings were held in February to address how Mr Battistelli has handled the high-profile disciplinary cases taken against staff representatives and his more general failure to engage with the Unions. He notes that this failure to engage with the Unions occurred despite the AC having made it abundantly clear that the social unrest in the Office was a high priority and despite the AC having committed to the President to a dialogue with the main staff union, SUEPO.

Mr Kongstad tells the AC delegates that Board 28 members have been unable to engage the President in a meaningful dialogue, and as a result they are resorting to addressing a formal request to the President through the AC. The situation has been brought to a head by very serious concerns at the political level about the proper functioning of the organisation.

Mr Kongstad recounts that the draft resolution was shown to Mr Battistelli at a meeting on February 17th, but Mr Battistelli rejected the document and questioned the legal basis for certain of the AC’s requests (see further below) before walking out of the meeting. Mr Kongstad drily notes that it is clear to Board 28 that the Council can make requests to the President without any legal obstacle whatsoever, and that in his view the President must positively respond to such requests. This is especially the case when the requests are ones to which no one is likely to object, such as suspending controversial pending disciplinary cases while an external review takes place.

A caveat on the draft resolution

The text of the draft resolution which Merpel has seen appears to be itself a draft of what is to be sent to the AC delegates to consider, and so she will refrain for now from posting it verbatim. She is satisfied however that it is genuine in the sense that the AC will be considering a resolution along the lines set out generally below at its next meeting.

Readers should note in any event that no matter what text the AC delegates actually get, the wording of any resolution will itself be up for discussion, and the full AC could accept, reject or amend the wording however it likes, so Merpel urges her readers to treat what follows as being merely a preparatory document.

The draft resolution

The text of the resolution seen by Merpel begins by setting out the reasons for the requests that follow, namely the ongoing social unrest, the repeated unsuccessful efforts to have the President engage with the trade unions, and the fact that the disciplinary actions taken against SUEPO leaders have exacerbated the problems of staff relations.

It also suggests – and this is something that Merpel had not seen before – that the AC is itself being hampered in its operation by not having sufficient resources in its secretariat, the implication being that Office management are starving the AC of adequate resources. (One suspects that they may have some sympathy for the Boards of Appeal who cautioned that if they had to depend on Mr Battistelli for the provision of supporting resources, they could never be properly independent.)

The specific requests then follow, the first and second of which were rejected by Mr Battistelli as lacking legal basis according to Mr Kongstad.

1. Mr Battistelli is asked by the AC to agree to an external review of the disciplinary actions taken against SUEPO leaders.
2. He is asked to suspend the disciplinary proceedings until that review is complete.
3. He is asked to redraft the Staff Regulations and in particular to include amended sections covering the running of his investigation unit and how the disciplinary system operates.
4. He is asked to conclude a memorandum of understanding with both SUEPO (the largest trade union) and FFPE-EPO (a smaller union based in the Hague), this being achieved without any preconditions and without ruling out any negotiating points.
5. He is asked to submit new proposals by June 2016 for structural reform of the Boards of Appeal which take into account the agreed directions from the AC, their legal advice, and the comments of the Presidium of the BoA.
6. Finally, he is asked to submit proposals by June 2016 for reinforcement of the AC secretariat, and following discussion with Board 28, he is asked to clarify the position of the AC in terms of governance.

Regarding the first two items, it is worth mentioning that the AC delegates will also have received in recent days a letter from the President of the Federation of International Civil Servants' Association (FICSA) containing a resolution calling on the AC to intercede with EPO management and to reinstate SUEPO officials Elizabeth Hardon and Ion Brumme, and to reverse the downgrading of Malika Weaver.

Regarding point (6), while seemingly more innocuous than the high-profile disciplinary issues and the reform of the Boards, this appears to Merpel to be potentially the most damning and difficult one for Mr Battistelli to address. He has challenged the authority of the AC in interfering with the disciplinary process, claiming that requests (1) and (2) are legally impermissible requests for the AC to make of the President. Merpel interprets this as a response from the AC, asking Mr Battistelli to clarify who he thinks is running the show.

Merpel suspects that if Mr Battistelli is determined enough he could continue to challenge the AC, up to a point. Article 4 EPC makes it clear that the AC and the Office are separate organs of the European Patent Organisation. The Office grants patents and does so under the “supervision” of the AC.

Regardless of “supervision”, however, the Office is “directed” by the President under Article 10 with the President being responsible to the AC for the activities of the Office. In terms of direction the President has significant powers granted to him under Article 10, including the disciplinary powers over staff members. So perhaps Mr Battistelli feels that this is his sole domain and that while the AC can only ask him to account for his actions it cannot direct him in the performance of his duties. However, he will also be aware, as will the AC, that the ultimate restraint on his powers arises out of the fact that he is himself subject to the disciplinary authority of the AC under Article 11(3) and is answerable to the AC for his running of the Office under Article 10(1).

There’s lots of scope for arguing fine distinctions between supervision and direction, discipline and powers, if one is minded to. However, Merpel wonders if taking such a position, or sustaining a challenge to the authority of the AC, is tenable for any President.

Loyal directors to the rescue?

In what appears to be a sign that Mr Battistelli is not going to bend the knee without some resistance, a remarkable letter has been drafted by those most loyal to Mr Battistelli addressed to the AC “from the management of the EPO”. This letter has, Merpel understands, been presented to EPO managers and directors for their signature – purely voluntarily, you understand.

The letter is drafted as an attempt to persuade the AC to vote against the resolution drafted by Board 28. While it studiously avoids mentioning Mr Battistelli it urges the AC to support “the Office” and to vote against the proposals of Board 28.

This letter of support says (and Merpel doesn’t joke about such matters) that the Organisation is “healthier than ever”. It warns that the proposal drafted by Mr Kongstad will undermine all EPO managers and will jeopardize the reforms that are underway. The AC should, according to this letter, focus on the Office’s “great achievements” and endorse the Office’s social dialogue, not criticise and undermine it.

Merpel does not yet know how many managers have signed the letter, or what the implications might be for either agreeing or declining to sign it. She will keep readers updated when significant developments occur.

Given the unprecedented implications of these developments, and the fact that feelings are running extraordinarily high, Merpel has decided at least for now to disable the comments facility on this post and she will be disallowing comments on other posts that address these developments. If readers have any concrete and verifiable further news to share, please email merpel.mckitten@gmail.com.