REVEALED - the Administrative Council prepares procedure for removal from office of members of the Boards of Appeal
Merpel posted recently minutes of the December 2014 meeting of the Administrative Council of the EPO (here and here) and, in the comments, there were discussed the two means by which a member of the Board of Appeal of the EPO might be disciplined.
On the one hand Article 23 EPC states:
The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect.
On the other hand, Article 11 EPC states:
The Administrative Council shall exercise disciplinary authority over the employees referred to in paragraphs 1 to 3 [which includes members of the Boards of Appeal].
while Article 10 EPC provides that the President of the EPO "may propose disciplinary action to the Administrative Council with regard to employees referred to in Article 11, paragraphs 2 and 3 [which also includes members of the Boards of Appeal]"
Now, it seems clear that the discipline according to Article 11 must stop short of "removal" according to Article 23, but there is disagreement between Merpel, who believes that this "removal" means permanent removal (so that a wide range of sanctions including suspension would be envisaged under Article 11), and a commenter who thinks that "removal" under Article 23 includes suspension, so that the Article 11 disciplinary provisions (which can be proposed by the President and do not need a proposal from the Enlarged Board of Appeal) must be rather limited in application.
Another reader asked:
do you know if the suspended member of the BoA has the right to a defense and/or to provide his own arguments in front of the AC?And exactly, who is the (independent) judge and/or jury here? Who decides what constitutes defamation?Is there any chance to appeal the decision, internally or externally?
And Merpel replied "... This suggests to the Kat that such a Disciplinary Committee has never existed before so the procedure can be made up from scratch. The judge and jury is clearly the AC itself. But who is the prosecutor and what right of defence the accused has - I don't think anyone knows."
Well, it turns out that the Administrative Council has seen this legislative lacuna and had already done something about it. Merpel has now seen a proposed amendment to the Rules of Procedure of the Enlarged Board of Appeal that may provide answers as to the procedure that would be followed to remove a BoA member from office. This amendment was apparently drawn up by the Enlarged Board of Appeal and is being submitted to the Administrative Council by the Chairman of the Administrative Council for decision. It appears that, contrary to what Merpel believed, the judge and jury in the case of removal from office under Article 23 EPC will be the Enlarged Board of Appeal (whose decision would be a "proposal" for removal that then presumably would be rubber stamped by the Administrative Council in a decision of removal).
In particular, new Article 12a is proposed as follows:
Article 12a
Proceedings under Article 23, paragraph 1, first sentence, EPC
(1) A request that the enlarged Board of Appeal make a proposal for the removal from office of a member under Article 23, paragraph 1, first sentence, EPC may be made to the Enlarged Board either by the Administrative Council of the European Patent Organisation or by the Vice-President of the European Patent Office in charge of the Boards of Appeal.
(2) In the case of such a request being made by the Administrative Council, the Administrative Council shall be a party to the proceedings. The Vice-President of the European Patent Office in charge of the Boards of Appeal shall also be entitled to be heard in such proceedings.
(3) In the case of such a request being made by the Vice-President in charge of the Boards of Appeal, he shall be a party to the proceedings. [so the prosecutor will be the Administrative Council or the Vice-President in charge of the Boards of Appeal]
(4) The member who is the subject of a request to make a proposal to their removal from office under Article 23 paragraph 1, first sentence, EPC shall be a party to the proceedings as respondent. [so the accused member of the Boards of Appeal has a right of defence]
(5) The request referred to in paragraph 1 shall set out all the facts, arguments and evidence relied on. All documents referred to shall be attached.
(6) The proceedings shall be conducted in writing, where necessary or requested supplemented by oral proceedings, according to Article 14, and may not be concluded without the respondent being informed of the facts, arguments and evidence underlying the request and having had the opportunity to be heard on them. The respondent may appoint a person to advise or represent him. [and the accused member of the Boards of Appeal has a right of representation]
(7) Article 117, paragraph 1, EPC shall be applicable. [all means of giving evidence recognised by the EPC will be permitted]
Further, proposed new Article 2 of the Rules of Procedure of the Enlarged Board of Appeal, referring to Article 22 EPC, specifies that the composition of the Enlarged Board for these proceedings will be five legally and two technically qualified members, the Chairman will be replaced by his alternate, and two of the legally qualified members will be external members. The document explains elsewhere that the Chairman is excluded for these purposes because as vice-president he represents the interests of the boards of appeal he administers and therefore he cannot be both judge and party.
Presumably this proposal will be considered at the next Administrative Council meeting in a couple of weeks, and if approved will become part of the Rules of Procedure. Does this mean that the Administrative Council is intending to invoke the procedure? Or is it to have around just in case?