Merpel has not posted for quite some time on the various developments affecting the EPO Boards of Appeal (BoA), but has been keeping an eye on the ongoing developments and reforms. She plans to post a couple of articles on the Boards generally, but thought she should first address the topic (no sniggering down the back of the class, please) that readers most frequently ask her about: the continued suspension of a Board of Appeal member for allegedly disseminating critical opinions about the Boards of Appeal and for alleged defamation of a member of EPO senior management (the allegations are set out in broad strokes in the Enlarged Board Decision Art 23 1/16).
The "House Ban" - Part 1: the story to date
It is almost two years since Mr Battistelli illegally suspended a member of the BoA, confiscated the computer belonging to the Board member, and imposed a "house ban" to prevent access to the premises of the EPO. As readers of the blog will know, the Administrative Council subsequently tried to regularise the suspension, and suspended the member on full salary until March 31, 2015 (yes, more than 18 months ago, it's not a typo).
Three attempts have been made, all spectacularly unsuccessful, to petition the Enlarged Board of Appeal to remove the member from office. Along the way, Mr Battistelli forcefully told the AC that it should ignore the rule of law and the Enlarged Board, told the Enlarged Board he would refuse to authorise any witnesses to attend its hearings, and demanded the Enlarged Board to provide an assurance that it would neither hear the case in public nor call any EPO witnesses. All of which was rather presumptuous on his part when he was not even a party to the Enlarged Board proceedings (despite which it was EPO employees presenting the case on behalf of the Administrative Council, not independent lawyers appointed by the AC).
The full and sorry saga of the failed Enlarged Board cases is detailed in this Wikipedia article. You can and should read the three decisions if you want to see how the case was mishandled by the AC and the Office: the full texts are at Art. 23 1/15, Art. 23 2/15 and Art. 23 1/16. You will look for these landmark decisions in vain on the EPO's website, despite an order that each be published (as to which, more below).
Although originally suspended on full salary, the AC subsequently decided to reduce the suspended individual to a half salary, which has been imposed since October 2015, after a Disciplinary Committee established by the AC decided that dismissal of the Board of Appeal member was justified. The AC also in December 2015 retroactively amended the rules applying to the suspension of BoA members: under the terms of Article 95 of the EPO Service Regulations which was in force when the suspension was imposed, a final decision was required within four months.
However, by means of the subsequent decision CA/D 18/15 adopted on 17th December 2015, it is now possible for Council appointees (i.e. primarily members of the Boards of Appeal - but also the President and Vice-Presidents ... any takers?) to be suspended on half-salary for a minimum of twenty-four months, or indefinitely prolonged if the AC so decides in "exceptional circumstances".
Given that the appointment of a Board member is for a five-year term, CA/D 18/15 permits the de facto removal from office of a Board member outside of the procedure foreseen under the higher-ranking legal provision of Article 23 (1) EPC. Judicial independence in such circumstances is reduced to an irrelevance. Still, it's a reasonable price to pay to keep Mr Battistelli happy, one supposes, even if it means that the AC has to take actions that directly work against the very EPC under which they are constituted and which they are bound to uphold.
In what now seems like a deliberately ironic exhortation, when this crisis broke (December 2014) the AC engaged in a hand-wringing exercise of concern, and publicly urged a speedy resolution of the disciplinary proceedings. Why ironic? Because the AC has itself continued to drag out the very same disciplinary proceedings with repeated unsuccessful attempts to fire the Board Member, appears unprepared to accept the outcome of the disciplinary proceedings before the Enlarged Board, and has in the interim written rules allowing it to impose an indefinite period of suspension specifically in order to prevent the Board member returning to work within the envisaged four month period and perhaps never. Urge a speedy resolution all you like, AC members, but perhaps some inward reflection is called for when this fails to transpire.
The House Ban part 2 - Call the cops!
What is EPO management to do when the European Patent Convention's procedures for disciplining a Board member don't deliver the desired result? Why call in the local police of course.
The Munich and Hague constabularies are always most welcome at the EPO's doorstep when they arrive for the right reasons, e.g. if there's a suspicion that published newspaper articles have been emailed from within the Office (!). Just as long as they don't expect to gain admittance if they're investigating an incident that the management finds inconvenient. In that case, the door will be barred to the Polizei and Politie quicker than you can shout "diplomatic immunity".
This particular twist in the story started in 2013, while members of EPO management were still trying to trace the source of press articles that it alleged were both defamatory and were being distributed from within the EPO - these being articles from the German and Croatian press investigating the pre-EPO career of a member of EPO upper management.
A complaint about the alleged defamation was filed by a member of the senior management team at the EPO with the Munich Public Prosecutor in August 2013 against person(s) unknown, seeking a criminal prosecution. However, a few days before the "house ban" story emerged in late 2014, members of the EPO Investigative Unit (IU) met with the Bavarian Police and informed them that a suspect had been identified and that the person in question was a member of the Boards of Appeal.
In other words, the Bavarian Police were informed by the IU in November 2014 that a member of the Boards of Appeal was under investigation, before the Administrative Council (i.e. the statutory appointing authority) or the Chairman of the Enlarged Board (and at the time Vice-President of DG3) were informed, as part of an attempt to have that member criminally prosecuted.
On 11th May 2016, the Munich Public Prosecutor dismissed the complaint. The Prosecutor reviewed and analysed the articles and concluded that their content was not in fact defamatory under German law. The Prosecutor also expressed doubt that in any event the dissemination of press articles could constitute defamation under German law - and this allegation is at the heart of the petitions to have the Board Member removed under Article 23 EPC.
The House Ban part 3 - Muzzling the Enlarged Board
The Enlarged Board has issued three decisions in the House Ban proceedings. In each of these decisions, the Board has ordered the European Patent Office to publish the decision, but the Office has flagrantly ignored those binding orders.
In the third such decision, the Enlarged Board noted that the Office had failed to comply with both of its previous orders, repeated that the earlier decisions should be published and made a formal order to publish the third decision as well. And ... nothing happened. The Official Journal continues to be published on schedule with such important matters as the accession of Djibouti to the PCT, but curiously omitting the mandatory publication of these fundamentally important decisions on judicial independence and the relationship between the Boards, the AC and the President.
What does this tell us about the Administrative Council?
To recap: the AC has overridden the operation of Article 23 EPC by ensuring that a Board Member can remain indefinitely suspended, at the urging of the President. It has failed to impose any discipline on that President (this job is basically the AC's entire raison d'être) when that President has told it to ignore the Enlarged Board. It failed to distance itself from the actions of the President which the Enlarged Board held had threatened its independence. It has (most recently) watched as that President dismissed a Union leader in direct defiance of an instruction not to take any such step. And perhaps least importantly, but most tellingly in terms of its impotence, it seems unable even to ensure that when the Enlarged Board orders its decisions to appear in the Official Journal, that publication in fact occurs.
Merpel wonders if the AC is by now so lacking in authority that it cannot even compel the President to comply with an order of the Enlarged Board? Or on the other hand, is the AC so embarrassed by the shambles of the repeated proceedings and its own actions in dragging out a procedure for which it urged a "speedy resolution" that it has once again opted to ignore the rule of law in favour of expedience and saving face for itself?
Either way, Merpel reminds the Administrative Council members that the AC exists only by virtue of the EPC. It must not only act within the EPC itself but ensure that the Office does so also. That includes insisting on compliance with the orders of the Enlarged Board, however inconvenient that might seem.
For the AC's credibility to be restored at this very late stage, certain actions seem to be required.
1. The Board Member at the centre of the House Ban affair should be reinstated without further delay. The legal path has been followed and its outcome is clear. Suspension for an extended period at the insistence of management is incompatible with the requirement of judicial independence.
2. A clear signal should be given in the minutes of the next AC meeting that the actions of Mr Battistelli vis-a-vis the Enlarged Board are unacceptable, in terms of his instruction to the AC to ignore the Enlarged Board, and the actions which the Enlarged Board interpreted as threats to its operation and independence.
3. It should instruct Mr Battistelli to reinstate the recently dismissed Mr Prunier - after all, that was the standing instruction which he ignored by continuing to pursue and target the union leadership.
4. It should order that the next edition of the EPO Official Journal contains the approved texts for publication of the three "Article 23" Enlarged Board decisions. If Mr Battistelli can't find them for the publishers, the ever-helpful Merpel reminds all involved that they can be found here: No. 1, No. 2 and No 3.
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