Yesterday was St. Nicholas Day in Germany and many other European Countries. As Wikipedia helpfully as always explains, St. Nicholas fills the boot with gifts and sweets overnight, and at the same time checks up on the children to see if they were good, polite and helpful the last year. If they were not, they will have a stick (eine Rute) in their boots instead.

In Austria, Bavaria and Tyrol, St. Nicholas is accompanied by Krampus. Krampus is St. Nicholas’ sinister servant, supposed to punish children who had misbehaved, and to capture particularly naughty children in his sack and carry them away. According to Wikipedia the creature has roots in Germanic folklore; however, its influence has spread far beyond German borders, in Austria, southern Bavaria, South Tyrol, northern Friuli, Hungary, Slovenia, the Czech Republic, the Slovak Republic and Croatia.

In other words, the perfect timing for ILO in Geneva to issue its verdicts on several complaints filed by EPO employees against disciplinary measures issued by the EPO management and/or the Administrative Council. Now, let us find out who the ILO thought were the good children and who misbehaved.

Case 3972 was a complaint of an EPO examiner from The Hague, who was dismissed for alleged misconduct. The complainant argued that he was suffering from a mental illness. The ILO decided in favour of the employee, referring to a similar earlier case that it had decided earlier:

“[T]he President’s decision to dismiss the complainant […] is vitiated by the fact that neither the President, nor the Disciplinary Committee could have made a proper assessment of the allegations without taking into account whether the complainant acted intentionally, and in control of his faculties, or if the complainant suffered from a mental illness that prevented him from behaving in accordance with his obligations as a permanent employee. Therefore, the principle of due process and the duty of care require the Disciplinary Committee in accordance with Article 101(3) of the Service Regulations (which provides that ‘[i]f the Disciplinary Committee requires Judgment No. 3972 further information concerning the facts complained of or the circumstances in which they arose, it may order an inquiry in which each side can submit its case and reply to the case of the other side’) to order a medical assessment of the complainant by an expert, and the convening of a Medical Committee if necessary. The medical expert(s) shall also take into consideration all documents in the file submitted to the Tribunal.”

Cases 3958 and 3960 were complaints filed by a Board of Appeal Member against several decisions of the Administrative Council who imposed upon him several measures in relation to an alleged misconduct, including to suspend him, to subject him to a “house ban”, to request him to relinquish all EPO property in his possession, and to block his EPO User ID.

The decisions speak for themselves and I highly recommend reading them in full. To cut a long story short, the party that “misbehaved” here was found to be the President of the EPO and the Administrative Council (AC). The facts are quite complex, but in essence, the problem was that the President, who felt defamed and insulted by emails allegedly sent out by this Board member, issued a house ban against this Board Member and requested the AC to suspend him, which the AC did. The Board Member requested a review of this decision, asked the AC to afford him the right to be heard and requested that the EPO President should be excluded from this review process due to partiality. The AC rejected the request for review and continued to involve the EPO President in his advisory capacity for its decision-making process.

Thus, the President came into the convenient position to be allowed to act as both the (executive) “plaintiff” and the (judicial) “court advisor” of the review panel (the AC) in the same case. A bit too much for the ILO tribunal, which held:

13. In the present case, there is a conflict of interest on the part of the President. It stems from the fact that the alleged serious misconduct, with which the complainant was charged, might reasonably be thought to have offended the President specifically, directly and individually. This situation, by itself, casts doubts on the President’s impartiality. Considering the whole situation, a reasonable person would think that the President would not bring a detached, impartial mind to the issues involved. The argument raised by the President in his opinion to the Council (CA/C 6/15), quoted above, namely that pursuant to the applicable rules the President was acting within his competence and had the power and duty to take all necessary steps to ensure the smooth functioning of the Office, is immaterial. The question of a conflict of interest only arises if the official is competent. Accordingly, the question of competency is not an answer to a charge of a conflict of interest. Hence, the Administrative Council erred in not finding that the President had a conflict of interest in the matter. In this situation, in accordance with the provisions in force, the Administrative Council should have sent the matter back to the next most senior official to exercise authority instead of the President, who was precluded from exercising authority because of his conflict of interest (see Judgement 2892, under 11).

The ILO therefore set aside the two impugned decisions by the AC, ordered that the complainant shall be immediately reinstated in his former post, ordered that the EPO shall immediately allow the complainant access to the EPO premises and resources, return to him any EPO property it requested him to hand over pursuant to decision CA/D 12/14, and to immediately unblock his User ID. Moreover, the EPO was ordered to pay the complainant 10,000 euros in compensation for moral injury and costs in the amount of 5,000 euros.

The second decision came to a very similar result, such that the EPO will now have to reinstate the Board Member in its previous position and pay him moral damages totalling at 25,000 EUR. Provided that it observes the ILO’s verdict.

Not a good day for the EPO management and its AC, when you are being found to have violated due process rights in one case and being accused of partiality – and, indirectly, violation of the principle of separation of powers, a known problem under the current Presidency – in two further cases.

Now, are all children of the EPO good and just its management a case for Mr. Krampus? Not quite. The ILO’s last two decisions of the day, 3896 and 3895, ended successfully for the EPO. The two complainant’s requests for interpretation of an earlier decision, which dealt with the (appropriate) composition of an EPO Appeals Committee “composed in accordance with applicable rules” were dismissed on procedural grounds.

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19 comments

  1. Even taking into account that two complaints were dismissed on formal reasons, which is quite typical for the ILOAT, yesterday was not a good day for the tenant of the 10th floor.

    And this time he will not be able to invoque immunity. Btw, immunity does not mean impunity. Even before the ILOAT.

    I take bets that he will do anything to wriggle around the judgements, and the fight is not yet over.

    After a disastrous election at CEIPI, we have a second dent in the “big” man’s crown. Serves him right, he has been looking for it.

    Bluntly ignoring separation of power could not stay without consequences, and the whole operation “exile of the BA to Haar” has now to be seen as what it is: retaliation against the BA for not obeying to his wishes. Will his shindig of 14th December in Haar be maintained?

    I am curious to see what the German Constitutional Court will make of this new situation. The changes brought about the structure of the Boards following this affair have only improved “the perception of independence” of the BA, but this is not enough. True independence has to be given. This is not the case presently.

    The tenant of the 10th floor is not the only one to blame. The AC for having accepted to be instrumentalised by him (the tail wagging the dog), and all the battalions of legal advisers in DG5 who encouraged him in his personal pursuit of revenge.

    The tenant of the 10th floor could not hope for a better end of reign….

    The new chair of the AC, and the new President of the EPO, will have a lot to do to clear the mess left by the chap sitting on the 10th floor.

    Techrights fingers off!! Directly or indirectly

  2. My opinion might not be popular, but the case invloves an employee that leaves work without permission, creates fear that “he might hurt himself or others” and does not sufficiently cooperate with medical experts to come to a diagnosis about his health. IF the EPO had terminated the employee while being on sick leave, I would agree that such a conduct is ethically wrong. However, if you have an employee that does not even cooperate to determine whether he is sick or not, what is the employer supposed to do? Have him on payroll and let him do whathever he wants for the next 50 years?

  3. Good piece Thorsten.

    I must say, I was not expecting to hear from the ILO quite so soon. I had supposed there was 10 year pendency in its cases. BB getting a dose of his own “early certainty” medicine? How ironic!

    I wonder though, can the President (or the AC) appeal the ILO judgement to a higher instance? And what mechanism is there to enforce an ILO judgement on a supra-national entity like the AC?

  4. @ Max Drei
    1) there is no revision possible
    2) if the president decides to ignore the decision of ILO, there is only the possibility to come back before the ILO. Farcical is’n it? We have not heard the last word in this matter. I hope the new chair of the AC and the new president will stop the game.

    @Peter Parker
    This judgement is just exemplary of the ruthlessness of the HR department of the EPO, which is headed by one of the president’s minions. What the ILO says, is that the office has not taken to heart its duty of care via-à-vis a staff member. That sheds a different light on the matter. I hope you can revise your judgement.

  5. To MaxDrei:

    No, there is no possibility for either party or intervener to a complaint before the ILOAT to appeal to a higher instance. Article VI, 1. of the Tribunal’s Statute provides:

    “The Tribunal shall take decisions by majority vote. Judgments shall be final and without appeal. The Tribunal may nevertheless consider applications for interpretation, execution or review of a judgment.”

    This also is an answer to your second question: While there is no possibility for an official benefitting from a Tribunal’s order to enforce a judgment, he or she can file an application for execution. In most cases where international organisations under the juridiction of the ILOAT have tarried over the execution of a judgment, damages then ordered by the Tribunal following a succesful application for execution were substantial.

  6. What sticks in my craw about all of this is that there will be no comeback whatsoever for the “guilty” parties. Indeed, the only ones that will (literally) pay for this whole debacle is the users of the EPO – as they are the only ones who provide the funds with which the EPO will pay the damages and compensation awarded, as well as the (no doubt exorbitant) legal fees for a case that should never have existed in the first place.

    With this in mind, I would very much like to see the AC to strip Mr Battistelli of his immunity, so that at the very least the Board of Appeal member that is the subject of the ILO’s judgements can ask a court of law to decide whether any civil torts (or even any criminal offences) have been committed during the course of what has clearly been a vendetta against him.

    What the BVerfG will make of all this is anyone’s guess. However, we can be sure that they will have been watching closely.

  7. There is a famous quote of what a politician (USA, 1950’s perhaps) said when caught out having done something morally indefensible, despicable. I tried to find it on Google because I think it fits BB to a T. It fits very well whenever the perp. is a supra-national entity like FIFA, the IOC or the EPO’s AC, an entity not answerable to the laws of any particular jurisdiction.

    It goes something like “I violated no Rule. I broke no law. Therefore I did nothing wrong”.

    Those citizens of Europe who sit on the EPO’s AC, those who preside over the EPO; if they lack a moral compass they are not qualified to sit in the seat they occupy, and should slink away, mightily ashamed of themselves for abusing basic human rights and the Rule of Law.

    VW’s resident manager in the USA just got sent to prison for 7 years, for dissembling on diesel engine emissions. And all the other involved, the string-pullers back at HQ in Wolfsburg? What of them?

    Come on Europe. For F’s sake. Set a good example to the rest of the world.

    1. If one thing is certain, it is that none of the AC members will ever voluntarily vacate their seats out of such mundane motivation like respect for democracy, the rule of law or human rights. As history teaches, this will only happen once decent citizens knock on their doors, with the fork in their hand. And this is what is going to happen, some way or the other. Sooner or later.

  8. In his brand new position of President of the Administrative Board of the Centre for International Intellectual Property Studies (CEIPI) Mr Battistelli might benefit from a free crash course on the elementary principles of law, including the issues of separation of powers.
    Perhaps will he then start to slowly understand why exerting a leading position at the same time in a patent office which examines patents and in an accademic institution which teaches trainees the basics of the examination procedure before the same patent office is just another form of intolerable conflict of interests.
    And if he does not understand by himself, the Administrative Council of the EPO will no doubt explain it to him again. No doubt, really?

  9. Peter Parker,
    I think the ILO decision made it clear that what the EPO should have done was institute a medical committee which could have made a decision based on the evidence it had, even if it were only documentary. To arrive at a decision of the person’s motives without attempting that and not even considering if he was or wasn’t ill at the time was deficient.

  10. The board of Appeal Member turned up for work today and the head of EPO security told him that she was under instructions from”above” to disregard the court order, and he will not be allowed in any EPO buildings.

    1. While the ILOAT has no divisions, its supremacy is enshrined in Article 13 EPC. The EPO president ignoring a direct order from the ILOAT (lifting of house ban) would be a violation of the EPC. It is difficult to imagine that this could be tolerated by the AC but of course many things have been difficult to imagine in the past.

  11. “The board of Appeal Member turned up for work today and the head of EPO security told him that she was under instructions from”above” to disregard the court order, and he will not be allowed in any EPO buildings”
    Should it be true that this judge is not allowed to resume his activity as a member of the boards for at least the period of time he still had to serve when he was suspended, his colleagues of the boards should immediately stop working until the AC has reinstated the rule of law.
    Otherwise they would definitely disqualify themselves as judges, and provide even more grounds for the Federal Constitutional Court to deny constitutionality of the european patent procedure for lack of a truly independant judiciary.

    1. Title says it all really. The only way that the UPC could have survived these decisions is if the EPO had immediately followed them in full *and* reappointed the judge. With this on top of the decision of the Enlarged BoA in case no. Art. 23 1/16, I really don’t see how the German Constitutional Court could ever find that the BoA are in any way judicially independent.

      For those who haven’t read them yet…
      Decision 3958: http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3958&p_language_code=EN

      Decision 3960: http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3960&p_language_code=EN

  12. Dear Max Drei,

    Case 2 has occurred as the former member of the BA has been refused entrance to the premises of the EPO by order de mufti.

    1. This could be where we enter interesting territory. Article 19(2) of the PPI of the EPO reads as follows:
      “The President of the European Patent Office has the duty to waive immunity where he considers that such immunity prevents the normal course of justice and that it is possible to dispense with such immunity without prejudicing the interests of the Organisation. The Administrative Council may waive immunity of the President for the same reasons”.

      From the long and tortured history of the case of the “judge” that was the subject of the ILO’s judgements, there are several points where it is clear that the national courts could have a role. I shall give two examples.

      The first is the alleged “defamation” of the President. Whilst immunity has not stopped senior EPO management from trying to sue in the national courts, it is a far from ideal state of affairs. That is, it creates an inequality of arms: the management can sue (and make allegedly “defamatory” comments in the course of doing so), but are immune from counter-suits. This is a powerful reason to strip the President of his immunity in connection with the case of the “judge”: if Mr Battistelli TRULY believes that he has been defamed, then the best way to sort it out will be in the national courts … but the price for pursuing this course of action will be loss of immunity from counter-suit. A fair compromise, no?

      A second point on which the national courts may have a role is the manner in which the “evidence” against the judge was gathered. I for one would be keen to ensure that the EPO is not able to “snoop” on me (and my confidential communications) if and when I ever enter the EPO’s premises. I very much doubt that I am alone here, meaning that there is a strong public interest in ensuring – through investigations by national authorities and, if necessary, by prosecutions in national courts – that the management of the EPO is rendered incapable of authorising monitoring activities that break EU laws.

      On both of these points, it is perfectly possible to conclude that “immunity prevents the normal course of justice”. Thus, the only question that remains is whether “it is possible to dispense with such immunity without prejudicing the interests of the Organisation”. That one is easy to answer too: the Organisation has an overriding interest in maintaining a good reputation. It will be impossible for the Organisation to do that without taking positive action to expunge the stains that have been left from the case of the “judge” that was subject to a house ban.

      In the light of all of this, I suppose that the only relevant question to ask will be: which “excuse” will the AC come up with this time for not taking any action?

      My bets are on no “excuse” at all. That is, I predict that they will simply ignore the judgement (like they did with the judgement of the Enlarged Board of Appeal which concluded that the President’s actions compromised their judicial independence). There is a grave danger for the AC if it chooses this path, though. This is because this issue will simply not go away, meaning that inaction on the part of the AC will only prompt further questions. These may well include questions relating to whether the AC is performing its function, and if not why not.

      Of course there is nothing whatsoever for the AC to fear if there is nothing to see here – that is, no (financial) impropriety of any sort, nor any “conspiracy” to cover up misdeeds. But what are the chances of that?

  13. @ Peter Parker

    How dare you speak of a case you have no concrete insights of? We speak here about a human being not a broken mechanical part.

    I am an ex-colleague of him. He was genuinely sick and this was no secret at EPO (at least to those knowing him, reason for which he was followed by Staff Reps for months).

    Only, HR top management deliberately chose to disregard his illness to instead handle him as a lazy staff member (he was suffering of severe mental issues). HR top management brought him in front of a (not even legally constituted!) disciplinary committee instead of bringing him in front of a medical committee.

    At this time our colleague was so sick that he was not capable to defend himself and not in a capacity to be helped even by the staff reps (his panic attacks were too many and too severe). If he did not appear to meetings, summons, it is precisely because he was very sick and had lost orientation.

    What the EPO did to him is simply beyond words and can only be named for what it is : harassment. He was fired like you would not like to treat your pets (father of 4 small children). It is a miracle that he did not took his life.

    No-one nowhere should ever be treated like this, all the more not in civilized European countries and surely not in an international organization.

    Those in HR – all FR officials – who treat EPO staff like this (he is no isolated case), are acting as they did because they feel empowered to do so, because they have IMMUNITY. There is no doubt that they would all be sentenced for harassment by national courts if they were acting as they do, simply across the street.

    Again this colleague is unfortunately not an isolated case (reason for which the ILO AT stated that his judgment will be important for several other cases of the EPO).

    At this stage there are no doubts any longer: this forms part of a deliberate policy of EPO HR top management to ill-treat its sick staff and get them fired instead of having them cured.

    It is just and plain SCANDALOUS

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