What can people, in particular citizens of Munich and Bavaria, do if they feel that elementary constitutional rights are infringed, not somewhere abroad and far away, but literally next door, at the Isar river banks or in the Pschorrhöfe building?

Unfortunately, this is no rhetorical question. If such things happen in the jurisdiction of German courts and under German government, German citizens can discuss them with the relevant office or authority, seek redress to court, or they can choose the political pathway and vote for a party that at least promises to deal with the violation by changing the law, if others choose to ignore it.

But what if the authority in question is the European Patent Office, for which the EPC Contracting States have agreed the following in Article 3 of the Protocol on Privileges and Immunities of the European Patent Organisation:

Within the scope of its official activities the Organisation shall have immunity from jurisdiction and execution, (…)

In effect, this means there is no court available to address such alleged violations. At the EPO level, there are no independent courts, and in particular the Boards of Appeal are no such independent courts, as has been discussed and shown many times on this blog. The examples of Mr. Mennessier and Mr. Corcoran provide ample evidence how dependent the individual Board of Appeal members are on decisions and actions by the EPO’s executive branch. The non-decision by the Enlarged Board of Appeal on Mr. Corcoran shows how intimidated even the members of the “highest judicial instance within the EPO” are and how threatened they feel in the absence of support by the Administrative Council. The Boards of Appeal have been moved, mostly against their will and on a very questionable legal foundation, to different premises outside Munich by a decision of the Administrative Council on a proposal by the President. Yet they still have no autonomy from the EPO President, neither financially, nor organizational, nor otherwise.

The political way to change and improve these deplorable circumstances is a thorny one. But at least some brave Bavarians have meanwhile woken up and rise to the challenge. As can be seen in the following Antrag FW Landtag (unfortunately, in German only), the state representatives of the “Freie Wähler” (free voters) party are requesting the Bavarian State Parliament to decide as follows:

The state government is requested to plead, on a national and European level, for measures within the European Patent Office that ensure independence of the Boards of Appeal and thus guarantee effective legal protection.

The reasoning is basically the story about Mr. Corcoran and the ILOAT decision, reinforced by the opinion by Prof. Broß. In addition, reference is made to the four pending constitutional complaints before the Federal Constitutional Court in regard to the EPO and “as a highlight” the complaint against the UPCA, which the representatives characterize as follows:

This happened before the successful request for a provisional order (File no. 2 BvR 739/97) which might be directed at the concerns with regard to the rule of law in proceedings before the EPO.

The authors of the Freie Wähler petition conclude:

Therefore, the state government should get involved, on a federal and European level, in order to abolish the existing deficits in legal protection and to make sure that the high reputation of this international organization is not damaged any further.

Who are the “Freie Wähler”? Well, I can tell you for sure that they are no revolutionaries; just look at their website or listen to the most recent speech of their chairman Mr. Aiwanger. They characterize themselves as „an important force in the political center. We support a policy that puts the human front and central, beyond any party ideology: factual, independent and close to citizens.” I think this is a fair description. They may not be very influential on a federal level, but their main ambition is to make an independent, non-ideological and value-conservative policy on a local and state level. If the Freie Wähler stand up and file a pretty sensible and non-ideological resolution like this one, then I would not be surprised if it will actually be passed by the state parliament on 20/2/2018. At least I hope so, even though it will obviously not change much in the short run.

But even if it does not, motions like this should really ring the alarm bells both at the Administrative Council level and in the German Ministry of Justice. We cannot and should not just sit and watch what happens on the Isar riverbanks. The EPO has deserved better and our constitutions demand it.


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14 comments

  1. Thanks again to Thorsten to put the finger where it hurts.

    I see primarily the present head of the Administrative Council in demand. He is German, and should now start rocking the boat, otherwise the next president might continue on the same track as the leaving one.

    All the problems we have now, could have been avoided if the Administrative Council would have been up to its task.

    Already a lot of damage has been made. I simply hope that it is not irreversible, but I am not sure of this.

    The independence of the Boards of Appeal exists only on paper. The President of the Boards is no more than a fig leaf, as the only powers he has, are powers delegated to him by the President. Unless the Boards of Appeal are part of a structure separate of the EPO, and its members are not at the same time under the administrative control of the President of the EPO, they will not be independent. They should have a budget which cannot be controlled by the President.

    That the Boards use the administrative structure of the EPO for matters like payment of the salaries and social protection is certainly right, but all the functions having a direct relation with the statute of a court should be clearly separate and untouchable by the president. The IU should have no power over members of the Boards. It is only at this price that the Boards can be considered as independent. May be the GFCC will suggest chances in this direction.

    It is a shame for the German Federal Government that a purely local party has shown the guts to bring on the table the problems of the EPO. The Ministry of Justice, where Mr Ernst is a high ranking official, simply turned a blind eye to the problems encountered by staff at the EPO. The only thing it seems having been interested in, is that the EPO does not play havoc with its money. The fate of the people working there was of no interest to it.

    The Chairman of the Administrative Council should start the preparation of a conference of the ministers of the contracting states which is long overdue.

    By doing at least this he could show that he intends to change things at the EPO. All the measures pushed through by the Napoleon of the 10th floor to the detriment of staff should be reviewed and access to a correct justice, and not merely the ILO-AT, should be insured.

    The support, for instance of epi, has been dramatically absent all those years. Why? Only a few individuals, starting with Thorsten, have raised their voice. Are all the other cowards? I hope not.

    Techrigts: FINGERS OFF! You know what I mean.

  2. “motions like this should really ring the alarm bells both at the Administrative Council level and in the German Ministry of Justice”

    Nope, sorry Mr. Bausch, but the only bells to which the Administrative Council of the EPO usually reacts to are the cash register bells operated by Mr. Battistelli.

    Your Constitution will have to wait.

  3. ” If the Freie Wähler stand up and file a pretty sensible and non-ideological resolution like this one, then I would not be surprised if it will actually be passed by the state parliament on 20/2/2018.”

    Dear Dr. Bausch, far be it from me to question your optimism about Bavarian democracy.
    But I wouldn’t count on the motion passing if the CSU gets its way.

    But I suggest that you take a look at the contribution from Mr. Taubeneder (CSU) during the last debate on EPO affairs back in March 2017:
    https://www1.bayern.landtag.de/www/player/index.html?playlist=https://www1.bayern.landtag.de/lisp/res/metafiles/wp17/17_346/meta_vod_24176.json&startId=

    Maybe it is just me, but he gives the impression of singing off the same hymn sheet as the EPO management.
    It would not surprise me if the EPO PR department wrote the speech for him.

    1. Thank you for the link. A true gem to watch these representatives in action.

      Meanwhile I heard that today’s session was postponed to March due to sickness of Ms. Schmidt.

      As to your comments about Mr. Taubeneder (whow, what a name!), you may indeed be right. Some of the language he used was clearly not his own (but the same is true for Ms. Schmidt, to be fair). Mr. Taubeneder’s main argument in 2017 was that the Bavarian Parliament is not competent to judge about such matters, which are in the very capable hands of the Administrative Council (sarcasm added by me, but not much). If I were Mr. Taubeneder or any of his CSU fellows, I would rather argue that it is the failure of the SPD-led Federal Ministry of Justice to apply more pressure on the Administrative Council to change things at the EPO to the better.

  4. @ Attentive Observer

    “The President of the Boards is no more than a fig leaf, as the only powers he has, are powers delegated to him by the President.”

    The interesting part here is that we don’t know what powers have been delegated to him.

    A notice was published in the Official Journal informing the public that a delegation of functions and powers had taken place but the actual text of the delegation has never been published.
    https://www.epo.org/law-practice/legal-texts/official-journal/2017/03/a19.html

    In other words we know that there has been a delegation of functions and powers but we don’t know to what extent.

    So much for “Glasnost” at the EPO.

  5. I am very impressed, Herr Bausch, with your astute observations. But, there is a problem for every international organisation, which tells us why we cannot succeed going national with our complaints. Why? Because all of them work in a deficient legal environment. There is no other constitution than the convention under which it works, there is no Parliament or Government, with their respective functions, governed by the people who voted them into office. one to adopt laws, the other to excute them. And above all, there is no access to any court to deal with complaints, be they staff grudges against treatment of them, or parties to cases who feel discriminated. ILO is the single way out and as some have already observed, the EPO might just disregard them. And mark this, this is the situation for each and every international organisation from the UN down (remember the Kompass case?). Study the case law of the ECHR on cases where staff of such isntitutions have tried to be heard, eg. Waite and Kennedy v. Germany or Heinz v. the conctracting states to the EPO. These are examples of why there is no access to the ECtHR, the states and the organisation are immune. So the effort of the EU to become a member of the ECHR is commendable, that would give staff and others a venue to be heard. The rest is not silence, but a continuous effort is required to make the powers of the EPO to see reason. What is happening there is disgraceful.

    1. Ms Holtz,
      One minor divergence. There are agreements between the organisations and their host countries such as the requirement to cooperate with local authorities and the limitation of immunity to the extent that the freedom is required to allow the functioning of the organisation. In the case of the EPO, where I believe the President and others acquire diplomatic status (passports?), the second has been interpreted widely and seemingly not challenged by local authorities. With regard to the first, local authorities are largely kept out (beyond emergency services) so that investigations of events and practices are not possible. In both cases, host countries could push the matter if they really wished but at risk of quasi-diplomatic consequences. The Hague has a goal of being a European international law centre and to intervene would probably count against it in future competitions for tribunals et al.

  6. What if the Federal Constitutional Court comes to the conclusion that at least one of the four older constitutional complaints 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/16 (two of them are accessible via the EPO-register: https://register.epo.org/application?documentId=EUD87SZM9068936&number=EP02732216&lng=en&npl=true and
    https://register.epo.org/application?documentId=EXTZOZQA0727235&number=EP96102992&lng=en&npl=false
    ) is well-founded and fundamental rights of the complainants have been violated?

    In view of the Enlarged Board of Appeal decision Art. 23 1/16, at least the conditions imposed by the Federal Constitutional Court in Solange II (https://en.wikipedia.org/wiki/Solange_II) might be considered fulfilled.

    Obviously, the national German Federal Constitutional Court cannot simply set aside a decision of an international organization, namely, a decision of a Board of Appeal of the EPO (cf. Section 95(2) Act on the Federal Constitutional Court (https://www.gesetze-im-internet.de/englisch_bverfgg/englisch_bverfgg.html), which also has effect in other countries. In this respect, I agree with Catarina Holtz.

    Perhaps the founding fathers of the European Patent Organisation have been wiser than we think and the solution is in a seldom used provision of the EPC:

    Would it be possible for the Federal Constitutional Court to render a judgement allowing a conversion of a European into a German patent (application) according to Art. 135(1)(b) EPC?
    Art. 135(1)(b) EPC seems not to require that statutory law provides for the possibility of a conversion.

    What could be the short term consequence?
    After conversion, the remaining German part of the application/patent would be handled in a sound legal environment presumably complying with the basic rights of the applicant.
    A German applicant could get a European patent application examined by (1) an Examining Division of the EPO, (2) a Board of Appeal of the EPO, converted to into a German patent application to be examined by (3) an Examining Section of the GPTO, (4) a Board of Appeal of the Federal Patent Court.
    A competitor would have to try getting the patent revoked by (1) an Opposition Division of the EPO, (2) a Board of Appeal of the EPO and after conversion by (3) a Nullity Board of the Federal Patent Court and (4) the Patent Senate of the Federal Court of Justice.

    And in the long run?
    It has been mentioned before (e.g., http://www.iam-media.com/reports/detail.aspx?g=65528c83-2eb9-4c97-a82f-b29de359da32) that Germany once also suffered from a lack of separation of the appeal senates from the German Patent Office. Accordingly, the Administrative Court Munich (later confirmed by the Federal Administrative Court) declared to be competent to review decisions of the appeal senates which at the time were part of the German Patent Office.
    The Federal Patent Court was not established, because it would have been immediately required, but because the users of the system stressed that 5 instances (examining section, appeal senate, administrative court, higher administrative court, federal administrative court) were too much! The users forced the government to make the considerable effort to change the constitution for establishing the Federal Patent Court!
    Is it reasonable to assume that the users will also force the administrative court to prepare a diplomatic conference for amending the EPC in case the Federal Constitutional Court allows for a conversion leading to (at least) 4 instances?

    “That men do not learn very much from the lessons of history is the most important of all the lessons of history.” Aldous Huxley

    1. Quite interesting in this respect are also decisions 2 BvR 2253/06:

      Die Verfassungsbeschwerde betrifft Fragen des Rechtsschutzes gegen Maßnahmen des Europäischen Patentamts.

      […]

      1. Die Verfassungsbeschwerde hat keine grundsätzliche Bedeutung. Die ihr zugrunde liegenden Rechtsfragen sind durch die Rechtsprechung des Bundesverfassungsgerichts hinlänglich geklärt (siehe zum Rechtsschutz gegenüber supranationalen Hoheitsakten allgemein BVerfGE 73, 339 ; 89, 155 ; 102, 147 ; und speziell zum Rechtsschutz gegenüber Maßnahmen des Europäischen Patentamts BVerfG, Beschluss der 4. Kammer des Zweiten Senats vom 4. April 2001 – 2 BvR 2368/99 -, NJW 2001, S. 2705 f.; BVerfGK 6, 368 ff.; 8, 266 ff.; 325 ff.).

      and 2 BvR 2368/99:

      Die Verfassungsbeschwerde betrifft die rechtliche Kontrolle von Prüfungsentscheidungen im Rahmen der Eignungsprüfung zur Zulassung als Vertreter beim Europäischen Patentamt.

      […]

      4. Art. 24 Abs. 1 GG muss wie jede Verfassungsbestimmung ähnlich grundsätzlicher Art im Zusammenhang der Gesamtverfassung verstanden und ausgelegt werden. Er öffnet nicht den Weg, die Grundstruktur der Verfassung zu ändern. Ein unaufgebbarer Bestandteil des Verfassungsgefüges sind die fundamentalen Rechtsgrundsätze, die in den Grundrechten des Grundgesetzes anerkannt und verbürgt sind (BVerfGE 37, 271 ; 58, 1 ; 73, 339 ). Das Grundgesetz verlangt jedoch nicht, dass auch im Einzelfall Grundrechtsschutz jeweils gerade durch das Bundesverfassungsgericht zu gewährleisten ist. Vielmehr bedingt die Offenheit der Verfassung für die internationale Zusammenarbeit im Sinne der Ziele der Präambel, dass das Bundesverfassungsgericht dann, wenn auf der supranationalen Ebene ein im Wesentlichen dem grundgesetzlichen vergleichbarer Grundrechtsschutz gewährleistet ist, seine Gerichtsbarkeit nicht ausüben wird. Wenn eine supranationale Organisation unmittelbar Verwaltungsaufgaben wahrnimmt, ergeben sich strukturelle Anforderungen an den Rechtsschutz (BVerfGE 73, 339 ) sowie an die Gestaltung der Verwaltungsverfahren.

      Die sich insoweit aus der Rechtsprechung des Bundesverfassungsgerichts ergebenden Anforderungen sind gegenwärtig auf der Ebene des EPÜ generell gewahrt. Der Beschwerdeführer legt nicht dar, noch ist sonst ersichtlich, dass dies vorliegend offenkundig nicht der Fall sei.

      (Many attorneys at law probably don’t know how annoying the EQE can be and therefore have never googled after a frustrating day of learning whether the EQE is consitutional. Well, I have and the result is quite clear. Yes, it is. (I did pass ;-)))

  7. Respect, Catarina Holtz. Respect, Thorsten.

    I think I see something common to BREXIT, Trump and the AC at the EPO, namely the Revenge of the Little People, against The Man. It’s the times in which we live.

    Who are the Little People at the AC? Why, all those small Member States who see themselves as victims of the Big Three in Europe.

    People like B. Battistelli, Donald Trump and that guy who used to run FIFA are masters at pitching to the Little Guy, and in so doing, getting elected.

    But I’m optimistic. the first step towards improvement is to identify the problem. With Thorsten’s help, that is happening.

  8. With regard to fundamental problems regarding the conditions of employment at the EPO, it seems that the “dead cat” strategy I previously discussed is in full swing (see: http://patentblog.kluweriplaw.com/2018/02/14/epos-vision-ii-expert-well-supported-motivated-staff/).

    The first part of the strategy is to introduce a new, and particularly outrageous proposal: in this case, proposed changes to Article 53(1)(f) of the Service Regulations.

    The second part is to get everyone focussed on (and talking about) that proposal:
    https://www.worldipreview.com/news/administrative-council-deliberates-epo-s-employment-plan-15499

    The third part is to then withdraw the proposal: see the rumour set out in https://twitter.com/Sheikh_al_Touar/status/966371012723068928

    The final part is to then get on with pushing through everything else that, in the absence of the “dead cat”, would have also drawn heavy criticism (in this case, a proposal to massively expand the use of 5 year, fixed-term contracts).

    We shall just have to see whether the final part of the strategy also plays out as I have predicted.

  9. In her contribution Ms. Holtz refers amongst other things to the issues arising from the status of international organisations and their immunity.

    In this context it is worth noting that recently on 26 January 2018 the Parliamentary Assembly of the Council of Europe (a supranational parliamentary assembly) debated and adopted a resolution on the “Jurisdictional immunity of international organisations and rights of their staff”.

    The relevant documents can be found on the PACE website:
    http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=22224&lang=EN
    http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=24239&lang=EN
    http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=24391&lang=EN
    http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=24498&lang=EN

    If I understand Ms. Holtz she takes the position that the national legal route is not an appropriate and/or effective one. However, if the national legal route is not available and there is no effective supranational route the consequence seems to be a denial of justice or a legal vacuum. The recent PACE debate indicates that these issues are gradually gaining awareness among at least some parliamentarians.

  10. According to Catarina Holtz:
    “The rest is not silence, but a continuous effort is required to make the powers of the EPO to see reason.”
    But where do we hear the voices of those concerned ?

    Back in 2014 there was a flurry of protest including interventions from external members of the Enlarged Board of Appeal.
    http://eplaw.org/epo-breaking-letters-to-ac-from-floyd-van-peursem/
    http://ipkitten.blogspot.de/2014/12/leading-european-ip-judges-join-chorus.html
    Even Sir Robin Jacob got in on the act: http://www.stjerna.de/patfiles/150105_Letter_IPJA.pdf
    At least until Willy Minnoye put him straight (!)
    http://ipkitten.blogspot.de/2015/01/judicial-independence-epo-responds-to.html

    But where were the voices of protest in December 2015 when the Administrative Council adopted CA/D 18/15 which allows members of the Boards of Appeal to be suspended indefinitely as we have recently seen?
    https://www.epo.org/modules/epoweb/acdocument/epoweb2/194/en/CA-D_18-15_en.pdf

    Or when the President of the Office interfered in proceedings before the Enlarged Board of Appeal in June 2016?
    http://ipkitten.blogspot.de/2016/06/enlarged-board-publishes-decision-epo.html

    It may just be my imagination but I cannot remember any protests from external members of the Enlarged Board of Appeal on those occasions.

    All of this leads me to wonder if we now have a two-tier “judiciary” at the Enlarged Board of Appeal ?
    On the one hand the members appointed under Article 11(3) EPC subject to CA/D 18/15 and the whims of the Admininstrative Council (driven by the Office President) and on the other hand the members appointed under Article 11(5) EPC who are happy to pocket their 1000 to 2500 Euro fee per case from this little sinecure while turning a blind eye to the incursions on the independence of their colleagues with “indentured servant” status at the EPO.
    I can only hope that I am wrong but my impression so far is that the silence has been deafening …

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