Kluwer Patent Blog

14 comments

1. Many thanks for reporting to the Public what happens at EPO.

   EPO HR practices have indeed not changed an inch since arrival of Mr Campinos (he is said to have absolutely no empathy towards “joe-average” staff members’ issues behind closed doors and he only wants to be seen as a “friendly and accessible chef” in Public).

   He lets Bergot run the shop and she does it with her usual level of incompetence. Forced transfers were one of the key elements found contributing to the dangerous HR organisation at France Telecom (an illustration of the duo Battistelli – Bergot’s concrete achievements https://www.politico.eu/article/labor-relations-turn-toxic-in-the-european-patent-office/).

   Bergot is responsible for all this.

   Campinos finds the “new career” (which is a nightmare for staff as it not only does not reward staff for the efforts done but also attributes unhealthy incentives (focussing too much on quantity vs quality). He has not done anything concrete about the quality of the work done except pretending that he will do something soon. He has done nothing regarding Els Hardon and Laurent Prunier who are still held hostages for wrong-doings they have not committed.

   HE DID NOTHING since he arrived, full stop.

   One may expect that a new drama will for sure occur e.g. new suicide. The question is not if but when since indeed the fear factor remains the same and it is still coupled to far too high production pressure. This is depressing.

2. Being an optimist, I seize on these words:

   “… the three new vice presidents Nellie Simon, Christoph Ernst and Stephen Rowan, who were elected last October and started in office on 1 January 2019, might be able to change things for the better.”

   If I understand it right, Ms Simon will be Bergot’s supervisor. Simon studied at the LSE. Has she got the strength to set Bergot straight? Rowan is a Brit and Ernst is a German lawyer. Suppose all three new VP’s have respect for the Rule of Law. Suppose that President Campinos has been biding his time, gathering his forces and that he regards his three new VP’s as “the cavalry” which will enable him to act in the cause of restoring decency within the rogue State of Eponia, and patching up its reputation in the outside world.

   Can we realistically hope along those lines?

   1. question MaxDrei : you sincerely place hopes in Dr Ernst ?

      you mean the very same Dr Ernst who supported Battistelli all along when he was violating the Rule of Law (Pr Bross was clear enough wasn’t he)?

      Would this mean that Mr Campino alone has neither the courage or the strength or the will to instruct Mrs Bergot to behave (since obviously with the forced transfers and the continuation of her HR policies mainly based on by fear and retaliation she is not behaving) ?

      You must be joking!

   2. Re Max Drei’s optimism:
      As head of the German delegation in the Administrative Council and more recently as President of the Council Mr. Ernst shares the Council’s responsibility for most of the developments in the past years. In particular, this applies to the punitive actions against the Boards of Appeal following decision R 19/12, including the failed structural reform aimed at efficiency instead of true independence, the exile of the Boards outside Munich and the handling of the Corcoran case showing that a Board member can be removed from office withoiut observing the garanties laid down in Article 23 (1) EPC. Nothing has changed in this respect. Rather, getting rid of a Board member who is not welcome to the management has become much easier: Reappointment has become dependent on a positive report and which manager will write a positive report on a person responsible for decisions not following the accepted mainstream. Dont forget, the President of the Boards is not just primus inter pares as a presiding judge should be. Rather he manages the Boards as laid down in revised Rule 12a (2) of the Implementing Regulations and his own dependency on his reappointment will not encourage him to risk conflics with the President of the Office or the Council. And the President of the Office has not lost his say when it comes to reappointment of Board members (cf. Rules 12d (3), 12c (2) EPC). The doubts about the rank of the rule of law in the EPO have not disappeared with the new President and his new team of Vice Presidents.

3. Dear Max Drei,

   I appreciate your optimism, but I think that it is a bit out of place here.

   You hope that Ms Simon will put things straight, especially with Ms Bergot. When it comes to the other VP you hope that they will abide by the rule of law. But you certainly know that the law is there to be interpreted. Will they go for an interpretation which will bring social peace or will they simply continue to apply the existing regime? It is a bit early to decide which way they will take, but I fear that the status quo is more likely, as it needs the least efforts. Why would Mr Ernst start going over board at the end of his career? He is there to make a bit of money and that is it.

   One could also consider that the new President could want the new VP do the “dirty” job to curtail the misbehaviour of Ms Bergot, and of all the other minions brought into the EPO by the former president. If this should be the case, he is not the right man at the right place. It is primarily his duty to give the whole scene a shakeup, not to have other people under his authority to do this. It is a question of credibility.

   As long as the whole clique put in place by the would-be Napoleon still occupy the jobs he assigned them, the new President will not gain the confidence of his staff. All the attempts of his trying to have a direct dialogue with staff will remain a fig leaf behind which nothing will really change.

   Remember also one thing. By granting as quickly as possible, the contracting states have got used to get a lot of annual fees much earlier. I am not sure they will want less, and later. This is one of the vicious legacies of the former head of the EPO literally buying votes in the AC. If there is one aspect on which the contracting states are not prepared to compromise, it is money. Money will always come before social peace.

   I might be overly pessimistic, but this pessimism is caused by a long time of looking at how things develop at the EPO. I would very much like to be nicely surprised, as hope dies last, but I fear that it will not be the case.

   Techrights: FINGERS OFF!! I do not want my contributions to be used by somebody like you!

4. Thanks for those three well-informed and informative answers to my post. We see from them that the forces of stasis are strong and that reversion to the Rule of Law is unlikely, at least for as long as the members of the Administrative Council (ie the Member States) can get away with shamelessly shrugging off any accountability, any responsibility for the misery and despair inside the EPO.

   For as long as it’s the money that counts, they will continue to pocket it (and demand ever more), shamelessly milking the cash cow without any concern for its health and welfare.

   But as Attentive points out, it’s the hope that dies last. Time to read the new book from best-seller Michael Lewis (The Fifth Risk) praising the unsung contribution to society that hard-working civil servants make. What goes around comes around. What you dish out to others comes back to bite you, in the end.

5. If a (serious) breach of the Service Regulations can be proven, what would be the consequences?

   I think that if the boot were on the other foot (that is, if it were an employee that breached the Regulations), then it is pretty clear that disciplinary proceedings would ensue, and could lead to dismissal.

   That option is unlikely to be available in this instance, as the relevant internal Committees and Boards can hardly commence proceedings against the whole Organisation. But what if it can be proven that the breach by the Organisation was directed by an individual employee (or a small collection of employees)? Does this mean that we can expect the AC to exert the disciplinary authority afforded to them under Article 11(4) EPC?

   But wait! Would it not be essential for the AC to first establish whether there had indeed been a breach of the Service Regulations? Do they have the power to commission such an investigation or would they need to wait for the President to provide a report (and recommendations) on the matter? And if the AC does not need to wait for the President, what information would they need to receive in order to start taking matters into their own hands?

   Based upon the AC’s prior performance, I think that it would be pointless to expect them to take action, if even if they are empowered to do so. As pointed out by Attentive, the President will certainly have his own interpretation of the Service Regulations that (no matter how unsupportable) could easily be wheeled out to provide a prima facie reason for the AC’s inaction. And it is of course unlikely that the President would investigate himself or any of his senior staff.

   So we can conclude that reliance upon the provisions of the EPC is unlikely to provide legal recourse for affected EPO staff. But what about the option of taking a case to the AT of the ILO? That could be suitable if one is an individual affected by an order issued in breach of the Service Regulations and one has the time to exhaust all internal remedies before waiting many months for the ILO to take up the case. But then, by the time that the ILO issues their judgement, the (series of) forced transfers would have come to pass, meaning that the best one can hope for is a Pyrrhic victory that awards costs / damages but does not reverse transfers that have become a fait accompli.

   So, in the light of the above reasoning, does this mean that EPO staff have no effective legal recourse against forced transfers EVEN IF those transfers have clearly been issued in breach of the Service Regulations? If so, is it not high time to revisit the extremely shaky reasoning of the Dutch Supreme Court and to own up to the fact that this represents a serious breach of the human rights of EPO staff, and in particular their right to COLLECTIVE bargaining (that is, a right that can NEVER be asserted before the ILO because: (1) it concerns a union, and not an individual; and (2) is intended to address the lawfulness of a provision BEFORE it comes into effect)?

6. Dear Concerned Observer,

   The AC can only take decisions over people having been appointed by him. Those are the members of the Boards of Appeal, as well as the President and Vice-Presidents. It is very unlikely that the AC will ever turn against the President or the Vice-Presidents. If it ever had the intention to do so, it could have done so a long time ago.

   As far as members of the Boards of Appeal are concerned, we all know that it was only there to confirm a decision of the then president taken against one of its members in spite of the separation of powers. I would have thought that separation of powers is something which is taught at the Ecole Nationale d’Administration. Some of its alumni, or at least one of them, seem to have conveniently forgotten this very important rule.

   As it is not only the tail wagging the dog, but the cash cow has to be kept running, it means that it will never happen. The AC is a fake institution, and its members are simply there to cash their allowance, and all perks at their disposal. I do not know any finance minister who would instruct his delegation to the AC to get less money from the EPO.

   All other staff of ÊPO are appointed by the President or any member of staff he delegates this power, for instance the head of HR. So anything affecting staff management is out of the reach of the AC. The AC may amend the staff regulations, and this is upon proposal by the president. Do you expect any change under this configuration.

   The ILO-AT is not a recourse, as it will never look at the political side of the staff regulations. It will only check whether the correct procedural mechanisms have been followed in changing staff regulations or applying the latter, or whether there has been a manifest abuse of discretionary power. That is the prime reason why EPO’s staff is barely successful at ILO-AT. And it takes ages until a decision is taken there.

   There have been so many mechanisms put in place by EPO’s management to make it more and more difficult to even reach the ILO-AT (management review of complaints for instance) or even remove some management actions from the reach of ILO-AT, that any referral to the ILO-AT looks more like a desperate attempt to obtain some procedural justice than obtain real justice. The ILO-AT has never attempted to interpret the staff regulations and to scrutinise whether they are reasonable or not.

   It is thus clear that the ILO-AT is not a recourse contrary to what has been said by the Dutch Supreme Court: In times were presidents of international organisations have acted in good faith towards their staff is long time gone, and we have seen where it can lead when the head of an organisation is primarily concerned by his well behaviour and that of his minions.

   It is high time to create a forum where staff of international organisations will find true justice. Only staff of the EU can find true justice at the CJEU, as this forum does not hesitate in stating how staff regulations have to be interpreted.

   Many, many years ago, the EU commission had accepted after negotiation with staff unions of the EU that the salary increase would be within a given %range. When it came to apply the result, the EU commission decided that the increase would be 0,1% above the lower end of the range. For the Commission it was within the range. Strictly speaking yes, in reality no. The unions went before the CJEU and the latter decided that the salary increase should be the average value between the lower and the higher end of the range. This was the meaning to be given to the agreement between staff and Commission.

   You cannot expect a forum like the ILO-AT to give such an interpretation of the law, and therefore its efficiency, as far as staff is concerned, is tending towards nil. And on top of it, EPO’s management refuses to enter into negotiations with the most representative staff union, but relies on a creation of its own, and in negotiations in an apparently joint body, whose decision can be set aside by the president, and in which half the members are from (top) management. Unless the president of the EPO accepts that a joint body gives an opinion which is binding for both sides, anything else is useless. And probably the grand children of my children will never see this!

   Techrights: FINGERS OFF!! I do not want my contributions to be used by somebody like you!

   1. Attentive observer, do not underestimate AC members. AC members may do more than cashing allowance and perks. Some have been smarter and taken their position to advantage to reach top management positions within the EPO.
      An interesting case in the history of the relationship between the AC and EPO management is the turning down of the EPO proposal for 3-year deferred examination by the AC. The reason was money : by prolonging pendency, the proposal would have enabled the EPO to collect renewal fees for a longer time, and as you know, the EPO gets 100% of renewal fees for pending applications while it gets only 50% of renewal fees collected by member states after grant.
      The EPO has recently launched a new online consultation on this topic, apparently to prepare for a new bid to the AC. It remains to be seen what will be the position of the current president.

7. Attentive,

   Thanks. I think that it is pretty clear that the structural defects in the EPC mean that it breaches at least Article 28 (Right of collective bargaining and action), Article 30 (Protection in the event of unjustified dismissal) and, most importantly, Article 47 (Right to an effective remedy and to a fair trial) of the Charter of Fundamental Rights of the EU.

   I find it astonishing that the Member States appear to be more concerned about upholding the EPO’s immunity than they are about the fact that the EPO’s employees are being deprived of fundamental rights afforded to them under EU law.

   More astonishing still are the difficulties in identifying a legal mechanism by which the fundamental rights of EPO employees can be upheld. Whilst the complaint of SUEPO to the ECtHR should have succeeded in this aim, it seems that this went nowhere (though there is precious little information on that case, the comments of ECHR President Guido Raimondi indicate that at least he views the immunity of international organisations as being more important than the fundamental human rights of those working for such organisations).

   Then there is the Charter of Fundamental Rights of the EU… and this is where things get a little weird. Despite defining FUNDAMENTAL rights, the Charter apparently applies to Member States “only when they are implementing EU law”. That obviously makes things a little tricky when the provisions concerned are national (or, in the case of the EPO, international) laws that do not obviously “read on to” a provision of EU law.

   So it seems that, because both the Dutch Supreme Court and the ECtHR appear to prioritize immunity of an international organisation above even fundamental human rights, there is a “loophole” in the legal system in Europe that is being actively defended by the Member States but that is providing the management of organisations such as the EPO with carte blanche to disregard not only the letter but also the spirit all EU and national laws, no matter how fundamental or important. Worse still, in the case of the EPO, even clear breaches of the EPO’s own statute either go unpunished by the AC or are retroactively “rubber stamped”.

   I agree with you that this situation is unlikely to change for as long as that lucrative stream of renewal fees keeps flowing to the Member States. Those that effectively provide the funds that keep this all going (ie the EPO staff, who grant the patents that lead to the fees, and the general public, who pay increased prices as a result of more patents of dubious validity being granted) either have no say in the matter or are oblivious to what is going on. With this in mind, it is no wonder that international organisations such as the EPO have been acting in ways that markedly depart from the ideals to which one might hope they would aspire. The absence of any effective legal remedies makes it perfectly possible, perhaps even likely, that international organisations will be captured by “bad actors” that seek only to line their own pockets and that get away with doing so by effectively stuffing the mouths of their overseers with gold. There are simply no disincentives to acting in this way, and no real legal consequences even if one is caught doing so.

   So far, so depressing. However, there is one option that might be worth exploring, namely identifying a provision of EU law that “reads on to” activities of the EPO and that might provide a “hook” for national courts to establish whether those activities comply with EU law in the light of (eg Articles 28, 30 and/or 47 of) the CFREU. I, for one, would be very interested to see how the courts would deal with such a case. This is not least because of the obligation under Article 267 TFEU to refer questions regarding the interpretation of EU laws to the Court of Justice … which might just have something to say about Member States of the EU signing up to international organisations that do not comply with even the most basic of provisions of EU law.

8. Please let us not forget the several staff reps and union officials, who had the guts to stand in front Battistelli and his acolytes who violated the rule of law and were abusively sanctioned by Battistelli and not released by Mr Campinos so far

   – Mrs Elisabeth Hardon -dismissed – from Munich
   – Mr Laurent Prunier – dismissed – from The Hague
   – Mr Aurélien Pétiaud – downgraded – from Munich
   – Mr Michael Lund – downgraded – from The Hague

   https://www.unionsyndicale.eu/usf-lettre-damnistie-oeb/

   Everyone would like to believe that you are better than your predecessor Mr Campinos but then why did you not act to redress their situation?

   Why Mr Campinos did you keep all top managers responsible for the social mess at their positions where they continue to do damages to both individuals and the EPO as a whole?

   Also why did you Mr Campinos keep a career which puts staff under unhealthy pressure whilst contributing directly to demotivate staff and lower the quality of the work done?

   Why are you simply doing nothing since your arrival Mr Campinos or worse: why are you (secretely) planning new deteriorations of the work package soon (e.g. deteriorated salary adjustment method, deteriorated pension system etc etc ) without consulting the staff reps and unions ?

9. Upon reflection, I should perhaps not be so surprised that the Supreme Court of the Netherlands (a country which benefits financially from hosting many international organisations that rely upon privileges and immunities) and the President of the ECtHR (which is itself an international organisation affording priviliges and immunities, particularly to its President) prize so highly the immunities afforded to international organisations.

   Nevertheless, I still find it extremely disturbing how such important judicial bodies, which are supposed to apply the law in an impartial and objective manner, can seemingly allow naked self-interest to sway their views … and to such an extent that the conclusions at which they arrive are manifestly flawed / illogical.

   It is of course important to respect judicial decisions, even if one violently disagrees with the court’s conclusions. However, it would take an awful lot to persuade me that there is any semblance of logic in the Dutch Supreme Court’s conclusion that the AT ILO (which only accepts complaints from individuals negatively affected by decisions already in force) provides an adequate remedy for those seeking to rely upon their right to COLLECTIVE bargaining. By the same logic, the availability of medical assistance would be an adequate replacement for a bullet-proof vest!

10. I can only but agree with you. It is a shame that it had to come to the present situation at the EPO.

    As long as the heads of international Organisations act in good faith there is not much of a problem. But as soon as the immunity becomes synonym to impunity things become sour. But it need not to be like this.

    It was highly hypocritical to call a member of the boards of appeal before a local court inMunich, but at the same time play on immunity to be oneself out of reach of courts. At least the local courts in Munich not only dismissed the complaints of the top managers of the EPO.

    To me the decision of the ECHR is itself a scandal!

    Human rights should be available to any citizen, whether working for an international organisation or not!!

    Techrights: FINGERS OFF!!!

11. He did nothing.

    Not True. He is sitting every morning at the bar listening to employees queuing to enjoy his beloved one-to-one meeting. Sometimes he listen so carefully that he does not say a single word.

    There will be soon direct consequences from what he ‘listened’ and from the dooming survey due to start today.

    We all miss and regret the time when he was just doing nothing.

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