In the last week of his term as president of the European Patent Office and a day before the official opening of the new EPO building in The Netherlands, president Benoit Battistelli lost three high-profile cases at the Administrative Tribunal of the International Labour Organisation  (ILOAT). The tribunal said Battistelli’s decisions to dismiss SUEPO leaders Elizabeth Hardon and Ion Brumme and to downgrade their colleague Malika Weaver were wrong and must be set aside.

The ILOAT ordered the reinstatement of Brumme ‘to the position he held immediately before his dismissal’ and the restoration of Weaver ‘with retroactive effect to the grade and step she would have held but for the imposition of the disciplinary sanction’, payment of interest on the resulting remuneration arrears ‘at the rate of 5 per cent per annum from due dates until the date of payment’, payment of moral damages in the sum of 30.000 (Brumme) and 25.000 (Weaver) euros and the payment of costs in the sum of 8.000 euros (cases 4042 and 4043, published on 26 June 2018).

Both SUEPO leaders had been charged with breaching their duties under the Service Regulations – in the case of Ion Brumme inciting Malika Weaver to do so – by unduly pressuring an EPO employee to continue litigation against the EPO and by disclosing confidential information. But the ILOAT concluded they did nothing wrong.

Elizabeth Hardon

Elizabeth Hardon (judgment 4047) was fired on 15 January 2016 with a 20 percent reduction of her pension. She had been charged with three sets of allegations. ‘The first set involved allegations of unauthorised disclosure of EPO internal, confidential and personal material. The second set involved allegations that the complainant had threatened or harassed EPO staff. The third set involved allegations that the complainant had engaged in inappropriate behaviour in the course of the investigation and disciplinary procedures.’

The ILOAT however pointed out that ‘[A]ccording to the well-settled case law of the Tribunal, the burden of proof rests on an organisation to prove allegations of misconduct beyond a reasonable doubt before a disciplinary sanction can be imposed’, and concluded that ‘the impugned decision to dismiss the complainant should be set aside because in assessing the complainant’s guilt it is not demonstrated that the appropriate standard of proof was applied, namely proof beyond reasonable doubt.’

Hardon’s case has been remitted by the ILOAT to the EPO ‘to enable a Disciplinary Committee, differently constituted, to consider the matter under Article 102 of the Service Regulations and for the President to make a fresh decision. (…) Indeed, and in any event, the complainant’s legal representative has advised the Tribunal, since her pleas were finalized, that her request for reinstatement is moot because she has sought to be paid a retirement pension from 1 July 2018 and EPO has agreed. The complainant is entitled to moral damages which the Tribunal assesses in the sum of 20.000 euros. She is also entitled to costs which the Tribunal assesses in the sum of 7.000 euros.’

And now?

In all three cases, president Battistelli had personally chosen to impose heavier sanctions than proposed by the EPO’s Disciplinary Committee. The fact that this is now reversed – unfortunately after more than two years  – is a further stain on his tarnished reputation.

Some other cases were decided as well. As EPO-Flier reported: ‘the EPO also lost two more cases after disciplinary procedures – see Judgments 4051 and 4052. One case in this session concerning a colleague representing staff was lost. Michael’s relegation in step will not be reversed. Michael’s case is similar to Aurélien’s. Both worked for the IAC and found themselves in a situation with a too heavy workload so that they could no longer attend oral sessions and write dissenting opinions, while both activities form part of the duties of an IAC member.’

In the meantime, it remains to be seen in what way Battistelli and/or the EPO will react to the ILOAT’s decisions. While Battistelli will have his last moment of glory as president during the official opening of the new – semi-finished – building of the European Patent Office in Rijswijk in presence of Dutch king Willem-Alexander, it is not certain at all that Brumme and Weaver will receive a warm welcome, apologies or anything similar when they show up at work again, as has been shown by the appaling treatment of Irish judge Patrick Corcoran (see this blogpost, among others).

It can only be hoped that Antonio Campinos, who will succeed Battistelli on 1 July 2018 and who was chosen for his ‘thorough knowledge and proven practical application of modern management methods, including an outstanding ability to establish and foster social dialogue’ (blogpost) will urgently look at their cases and those of other SUEPO leaders, such as Laurent Prunier, who was fired on questionable charges as well and is still waiting for an ILOAT decision.

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  1. 4043 (IB), Considerations, point 13, has an interesting reference to ILO case law concerning the right of unions to freedom of association and to preclude the organisation from interfering in this. This may be of particular relevance to the EPO’s action in only allowing strike ballots under approval of the EPO (I.e. Battistelli) which he did not give on at least one occasion. Additionally, the EPO insists that any vote is open to all staff and must be quorate under those rules. The EPO organises the ballot and thus no secrecy is guaranteed. In each case, the EPO is interfering with the functioning of the union (Suepo). It is hard to see that the ILO can not find in favour of any complainant, if such an appeal is ongoing. Noticeably, this is at the heart of the Suepo Dutch court case, lost at the Supreme Court on the basis of immunity from Dutch court application of human rights laws but not on the basis of substance.

    What a mess.

  2. What a blow for a person who thought he was above the law and immune to any critics. What a way to finish one’s time at the EPO.

    His reputation is more than tarnished, it is in tatters.

    When looking at the document “‘Modernising the EPO for excellence and sustainability”, I have rarely read a more biased and hypocritical document about the EPO than this one. But if you do not praise yourself who will do it to you? Especially now his crusade against SUEPO has ended up in a farce.

    By the way, not only the three persons you mention are rehabilitated, but also Mr Prunier. And for all of them damages have been ordered.

    The 8 years where the Napoleon of the 10th floor was at the helm of the EPO have been a disaster which might well open the grave of the EPO. May be this was his hidden agenda?

    I cannot see anything positive in his doings. That the EPO had to be woken up from a certain form of complacency is clear, but it did not warrant rocking the boat to the point it might sink. I would have expected that the users of the system, starting by the epi, would have reacted to all the damage done, but the silence was astounding from this side.

    One thing is sure, he was anything but a leader, as he showed absolutely unable to motivate his staff and was merely reigning by fear and demoralisation. Even worse, he was not a good manager as the sustainability of the EPO he claims, exists only in its imagination or that of his cronies. He leaves an EPO in tatters. May be the financial figures look good, but that not what matters at the EPO. Treating highly qualified staff like morons and with disdain is anything but a sign of leadership or good management.

    While the ILO-AT has said that the way the staff representatives have been handled is a disgrace, another forum for settling the disputes between staff and the management should be looked at. The ILO-AT is too formal. It is only when an administration goes manifestly overboard that it will act. This is not enough.

    It has also now to be seen how the EPO will deal with the reintegrated or re-graded staff. Will they get the same medicine as Mr Corcoran, i.e. be send in retaliation, but officially “in the interest of the organisation”, to another place of employment? If this is the case, I take bets that the ILO-AT will not bat an eyelid, but will state that this is according to staff regulations

    The president to come cannot fire all Napoleon’s cronies at once, as at the same time VP1/2, VP4 and VP 5, will also leave. If he wants to bring the EPO on a good track, he should have fired all the cronies by Christmas, or at least transfer them to posts were they will stop making havoc.

    I might sound hard, but I am boiling when I see the damage made to the EPO by such a bunch of incapable people full of themselves, and who on top of it, indulge in such self-praise.

    Techrights: FINGERS OFF !!! Do not copy past this contribution

  3. According to ILOAT Judgment No. 4052 considerations 13 and 14 “the President did not consider the instruction referred to in Administrative Council Resolution CA/26/16” regarding arbitration or mediation. It will be interesting if the Administrative Council will react in its upcoming meeting.

  4. I am so happy to read these lines and hear about these decisions for Malika, Els and Ion since they did not deserve to be treated as they were, literally hunted like animals for simply having had the guts to do their job as staff reps and union officials wholeheartedly.

    My thoughts also go to Aurélien and Michael since they too worked really hard and honestly to defend the rights of EPO Staff

    Finally, I think of Laurent Prunier who is the last of the dismissed ones, with his case currently on-going in front of ILO-AT (no decision expected before at best end 2018, probably 2019).

    Laurent too was brutally chased by the duo Battistelli-Bergot for wrong-doings he did not commit, for extraneous motives, and after a shameful procedure, flawed and trumped up from A to Z, with his defence rights violated all along (another SUEPO official in TH is also in front of the ILO-AT for the same abusive/fake procedure (but fortunately was not dismissed).

    Let us now hope that Mr Campinos will put an end to this terrible social situation and set free these colleagues. This has obviously brutalised the individuals concerned at the first place (hence generated immense anxiety/suffering for their families and friends witnessing such injustice) but it has also shocked the entire EPO workforce who wants to see their representatives respected and treated with Duty of Care anyone deserves at his/her workplace.

  5. The ILO’s conclusions in these cases are particularly interesting in the light of information that was previously known about how the EPO has conducted disciplinary / legal actions against other SUEPO representatives (and Mr Corcoran). This is because a clear pattern of behaviour is evident: those sanctioned appear to have been presumed to be guilty, and the flimsiest of excuses have been used by the EPO to “prove” that guilt.

    Now we know for certain that, at least in the cases of Corcoran, Hardon, Brumme and Weaver, there was no “proof” of guilt whatsoever. Instead, what has been proven is that, in all of those cases, the EPO has imposed harsh sanctions despite the total absence of any damning evidence.

    Are we to believe that it is a mere coincidence that SUEPO representatives (and Mr Corcoran) all happen to have been unfortunate enough to have had an inappropriate standard of “proof” applied to their cases by the EPO? Or is more likely that the EPO has deliberately targeted those individuals for punishment, regardless of the absence of any evidence of (serious) misconduct?

    Regardless, it is clear that the departing President has been very successful in one respect, namely seriously damaging the reputation of the EPO. Which raises a question… is that not a disciplinary offence?

  6. I read that:

    “Battistelli will have his last moment of glory as president during the official opening of the new – semi-finished – building of the European Patent Office in Rijswijk in presence of Dutch king Willem-Alexander,”

    and fully expect a speech in which he assures the assembled gathering of Big Wigs that i) the staff of the EPO are its most valuable and important asset and ii) that he, BB, has done more in his term of Office, to nurture and develop that most important asset, than any of his predecessors.

    I recommend that plenty of sick bags be available for urgent use by the unfortunate listeners.

  7. @spectator
    “It will be interesting if the Administrative Council will react in its upcoming meeting.”

    Why, of course they will react – by asking more money to the President before he leaves to continue to act like nothing ever happened.

    Good luck to the new President, Mr. Campinos, to continue to feed the beast.

  8. Will the AC Members ask the new President for “more money”, asks WW. You bet!

    In these days of populist governments, elected politicians need ever more money but cannot be seen to be raising taxes. For them, the EPO cash cow is a gift that keeps on giving. So, bleed it dry. Why not. No voter will notice or care.

    Further, far more easily than inventors, start-up companies or SME’s, it is the lobby professionals amongst the EPO users, I mean the supra-national corporate bulk users of the EPO, which can most comfortably tolerate sky high EPO fees for rock bottom EPO service. Indeed those high fees and weak examination will usefully see off the nuisance of fresh young competitor companies.

    It’s a No Brainer, readers, Mr Campinos, isn’t it?

  9. Yesterday little SUEPO won, today little KOR won.
    Belittled EPO staff will be set free in 3 days.
    Let’s see what game the new president will decide to play.

  10. I thought in view of the name P. In one of the decisions that Laurent Prunier was also re-instated. This is not correct.

    Please accept my apologies for this mistake.

    I wish however that in the future this end of the story will materialize as well for him.

    A further comment on the decision of the ILO-AT:

    It is without any reasonable doubt that the future ex-president of the EPO made the blunder of his life, in pursuing in, up to now, four cases staff members on utter flimsy grounds.

    Those grounds are to be found in his quest of revenge, and nowhere else.

    This also sheds some negative light on his advisers, to start with the present head of Personal of the EPO. But when she was selected, he claimed she was the best possible candidate. It just depends for what purpose…..

    What a shame for the Administrative Council to have accepted being manipulated by a person who had to be reminded, that he cannot be judge and party!

    The staff regulations should be altered so that the president is not allowed to negate the result achieved in a joint committee, and certainly not to aggravate a decision reached.

    One way to avoid overloading the ILO-AT is to accept such decisions, and not to say quasi systematically No!

    This could also be the result of all those blunders.

    Dear members of the AC, there is a lot of work to be done!

    Tech rights: FINGERS OFF!!!

  11. The recent ILO decisions also show which use the President made of the distasteful activities of his willful helpers in the Investigative Unit.

  12. Despite what appears to have been a victory for another SUEPO staffer in ILO judgement no. 4502, we are all still in the dark regarding the precise nature of the electronic “monitoring” that the EPO has been conducting. This is because the complainant’s request for production of documents explaining how the EPO came about certain information was side-stepped by the ILO.

    In case 4502, it is stated that the alleged misconduct of the complainant (who was by then a former EPO employee, and was instead employed by SUEPO) “consisted in the unauthorised publication on the Internet, at least throughout 2014 and under the use of various pseudonyms, of information and opinions about the work of the EPO, including non-public information and defamatory and insulting opinions”. It is also stated that “acting under various pseudonyms and using his blog, other Internet sites and Twitter the complainant had (a) published or caused the publication of information and opinions dealing with the work of the EPO without permission from the President …; (b) disclosed in an unauthorised manner non-public information about and belonging to the EPO … ; (c) published opinions of insulting, defamatory and/or libellous content against various EPO staff members and management, but also against the management of other international and public organisations; …”.

    These allegations raise a very important question, namely: if the complainant no longer worked for the EPO (and so, presumably, did not use any computers owned by the EPO to conduct the alleged misconduct), how is it that the EPO was able to identify the complainant as the author of the various pseudonymous posts?

    Personally, I find it impossible to believe that the EPO could have come about that information without somehow gaining access to the blog sites and/or the complainant’s computer. But why would either a blog site or the complainant voluntarily allow this? And should someone alert the authorities in Germany of the possible commission of (hacking) offences relating to the manner in which the EPO came into the possession of key data?

    Finally, what does this mean for the data security of those posting opinions here that are (at least in my view) justifiably critical of the current EPO management?

    1. I read case 4052 (and not 4502) here:

      The EPO accused the complainant to publish unauthorized matter in HIS blog. Presumably, the complainant was directly identified on the blog or it would not be “his blog”.
      Case 4052 also refers to other publications under a pseudonym on other sites and on twitter BUT also makes it clear that the investigation unit was not able to prove that the publications on twitter were from him. From page 3:
      “In its opinion of 18 January 2016, the Disciplinary Committee found that the complainant’s misconduct had been established with regard to the first charge insofar as it concerned material published on his blog, but not insofar as it concerned opinions published on Twitter, as he was not considered to be the author of these opinions.”

      Therefore, I understand that the EPO had not particular technical means to assert a person to publications made under a pseudonym on the Internet.

      The EPO would, of course, assert that publications made in a similar style and referring to the same subject may origin from the same person, but that does not constitute a proof.

      1. Apologies for the typo: it is indeed judgement 4052.

        Your assessment may be correct, in that it is perhaps possible that the EPO asserted authorship on the basis of stylistic similarities. However, I would make two observations in response to this.

        Firstly, if the EPO’s information on the blog posts were merely as you posit, then why would the complainant bother requesting copies of “all documentation on the duration of the investigation and the Investigative Unit’s SURVEILLANCE of his blog and ACCESSING OF HIS INTENET ACCOUNTS and the means through which this was done”?

        In this regard, I would also question how the EPO knew that it was “his” blog. Whilst it is of course possible that this was evident from the blog itself, it does beg the question of why the complainant would have bothered posting pseudonymously on other blogs if he was publishing “openly” on his own.

        Secondly, if the EPO really did impose sanctions based upon allegations of misconduct that were merely suspected (on the basis of stylistic similarities), as opposed to PROVEN, then what does this say for the standard of internal justice at the EPO? Is this yet another case of institutional harassment of SUEPO staffers by the EPO pursuing trumped-up charges based upon inadequate (or non-existent) evidence?

  13. Whilst prima facie concerned Observer is right, the whole decision says only that the decision has to be reviewed in the light of the ACs resolution of March 2016.

    It is for this reason that the ILO-AT considered that the production of documents was not necessary.

    The question is thus not answered.

    From the summary of facts preceding the decision, and from other affairs of the EPO ending in Geneva, one thing is clear: the President is allowed to disregard the findings of a joint committee as he thinks fit.

    This is the real scandal, and the staff regulations should be changed in this respect. Why have joint committees if the President can ignore their findings. He becomes judge and party, and this is not acceptable in present days! The President should only be allowed to change a decision in a positive way, not to aggravate it!!

    On the other hand being confronted in a disciplinary action with documents which apparently have been obtained in a fraudulent way is certainly not correct. One cannot control the CIA, but it should possible, and necessary, to control the IU of the EPO.

    This decision exemplifies the “legalistic” approach taken by the ILO-AT. If the decision is according the text, the ILO-AT will not bat an eyelid. This is grossly insufficient.

    Justice just checking whether the texts have been applied, and this in a very formalistic way, is not justice.

    That is why another Forum than the ILO-AT, should be created.

    If the new President wants to regain the confidence of its staff, which is the main asset of the EPO (Max Drei, no need of a sick bag here), the is a lot to be done. The quicker all those problems are tackled, the better.

    Techrights: FINGERS OFF!!!!

  14. The whiff of scandal does not end with judgement 4052. As noted on another blog, judgement 4049 makes for alarming reading. However, to fully understand the significance of the judgement, it is necessary to provide a little bit of background information.

    On 6 July 2016, the ILO-AT issued judgement no. 3694, which reached the following (seemingly very significant) conclusion with regard to the composition of EPO’s Internal Appeals Committee:
    “The balance sought to be achieved by the composition of this body, which includes members appointed by the Administration and the staff representation, is a fundamental guarantee of its impartiality. That balanced composition is an essential feature underpinning its existence. WITHOUT IT, IT IS NOT THE APPEALS COMMITTEE”.

    On 1 January 2017, AC decision CA/D 18/16 amended the Service Regulations by introduction of Article 36(2)(a). This allowed the President to make appointments to the Appeals Committee “by way of exception”.

    On 5 May 2017, the decision impugned in case 4049 was issued by an Appeals Committee composed of a Chair, two members appointed by the President (Article 5(1) and (2) of the Implementing Rules), and two members “nominated by calling for volunteers or drawing lots from among eligible staff members in accordance with Article 36(2)(a)”.

    Against all of this background, one might have expected the ILO-AT to refer to judgement no. 3694, and to find that the composition of the Appeals Committee still did not guarantee its impartiality. Indeed, a member of the Appeals Committee wrote a dissenting opinion to this effect.

    The outcome? The ILO-AT sees no problem with the composition of the Appeals Committee, because it was in accordance with the relevant rules in force at that time.

    Now, one might argue that impartiality is still ensured by the fact that the members appointed under Article 36(2)(a) must (presumably) still be elected Staff Committee members. However, that does not take into account the influence that the President has over the numbers of elected members and the conditions under which elections take place (Article 35 of the Service Regulations). It also ignores the possibility of the President pursuing a vindictive campaign of harassment against all Staff Committee members, with the result that few (if any) staff members would willing stand for election … thereby making it easy for the President to secure election of his “stooges” (who would of course be guaranteed to be protected from harassment).

    Now, if anyone doubts that the President (or at least the soon to be ex-President) would ever consider conducting a vindictive campaign of harassment against staff representatives, based upon little or no proof of wrongdoing, then please refer to my earlier comments on this thread, where I point to a clear pattern of behaviour in this regard.

    I guess this is just illustrative of a key problem with the ILO-AT: because it only examines matters from a formalistic standpoint (based solely upon the internal rules in force at the time, and without any attempt at independent fact-finding), it simply fails to see the wood for the trees.

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