More news of EPO unrest reaches the IPKat

Alas, it was not to be

Merpel was trying to spend her May bank holiday sunning herself on Mediterranean beaches, but she has been dragged back from her intended vacation by a flood of emails to the IPKat that have demanded her attention as International Kat of Mystery.  Readers will already have seen the news from across the Atlantic.  But, closer to home, there have been two fascinating developments at the European Patent Office (EPO) which, although distinct, do not appear to be entirely unrelated.  The first is yet more industrial unrest among the employees of the EPO, and the second is the stripping of the chairman of the Enlarged Board of Appeal of his administrative functions following decision R19/12 (for which see the IPKat post here).

Another strike

First, Merpel has learned that the quorum of signatures has been reached to allow a call for a further strike, according to the Strike Regulations, and further to the strike that already took place [on which see earlier Katposts here, here and here].

As Merpel understands the rules, there is now a vote of EPO employees and, for the strike to go ahead, at least 50% of a quorum of 40% of EPO employees have to vote in favour.  The issues are as follows:

1 - RULE OF LAW 
• Effective access to independent justice and the division of powers
• The newly introduced EPO Investigation Guidelines
• The new nominations at the Disciplinary Committee 

2 - FREEDOM OF ASSOCIATION 
• Freedom of communication
• The newly introduced Strike Regulations
• The upcoming reform of the staff representation : “Social Democracy” 

3 - NEW WORK PACKAGE

In relation to the first of these, the main complaint appears to be that the President is administratively responsible for the EPO, but also exercises disciplinary authority under Article 10(2)(h) of the European Patent Convention (EPC); this corresponds to judicial authority in the context of a supranational organisation, as well as having a legislative role (Article 10(2)(c) EPC).  The internal appeal process apparently takes up to four years, and it is alleged that "Most of the time, the President disregards the Committee's opinion if it is in favour of the employee."  The final appeal to the International Labour Organization's Appeal Tribunal (ILO-AT) takes around 10 years, so there is no effective recourse to justice.  There are then more detailed concerns about the EPO Investigation Guidelines and the Disciplinary Committee.

Did someone say "Freedom of Association"?

In relation to the second of these these, the Strike Regulations and lack of recognition of unions have been covered in an earlier post.  Also, in relation to staff representation, the staff committees are apparently now proposed to be elected by single non-transferable vote - Merpel understands that this is an unusual voting system to be applied where multiple candidates are to be elected, because it will usually mean that many of the elected candidates have a very small number of votes.

And in relation to the third aspect, the new work package is alleged to reduce starting salaries and slow progression at the lower grades, while increasing salaries of the higher managerial grades.  It is also complained that insufficient consultation has occurred on this.

Chairman relieved of administrative function

Against unrest directed at the management of the president of the EPO, Merpel wonders whether decision R19/12 (for which see the IPKat post here) is to be be seen as part of the same discomfort about presidential power.  After all, the situation identified in this partiality decision is not new and has subsisted for the whole of the life of the EPO (which opened for business on 1 June 1978).  Yet suddenly for the first time this is considered to give rise to a justified suspicion of partiality.  The IPKat wondered what would be the outcome of this decision, and now Merpel has been informed that the Vice President, DG3, aka the Chairman of the Enlarged Board of Appeal, has informed colleagues as follows:

"I am now in a position to inform you about the decisions taken with regard to my administrative functions as VP3, following decision R19/12.

1. With immediate effect I will not be called upon to exercise any function connected to the General Advisory Committee.
2. I will not be nominated as member of the General Consultative Committee.
3. With immediate effect I will not participate in MAC meetings as a member, but it is not excluded that I can participate as observer for agenda items that have a direct bearing on the Boards of Appeal or its support services.

Furthermore, the President has decided that financial authorizations granted to me relating to activities of members of the Boards of Appeal (missions, training, study visits) are suspended. This means that authorization of expenditure will be decided upon by the President. Also the delegation to me of the power to authorize external activities pursuant to Circular 135 of members of the Boards of Appeal, is suspended.

The above mentioned measures  are precautionary and taken, pending further analysis, with the aim to enable me to exercise my judicial function as Chair of the Enlarged Board in full".

Merpel notes that the controversial administrative function is to be taken over by the President himself.  So for those who are concerned about the expansion of presidential power, the situation seems to become exacerbated.  Merpel also notes that the resolution of the situation appears to have been decided by the President and not the Chairman of the Enlarged Board of Appeal.

Merpel will continue to hunt for news on these matters and will endeavour to keep our readers informed.