Former judge says actions of AC and Battistelli "devoid of any legal basis"

Prof. Dr. Siegfried Broß is probably better known to Merpel's German-speaking readers than her English-speaking ones. Suffice to say he's a highly respected former judge, who sat for 12 years on the Patent Division of the Federal Court of Justice (Bundesgerichthof), and for a further 12 years on the Federal Constitutional Court (Bundesverfassungsgericht).

He has been interviewed by Juve (a leading German magazine for lawyers), in an interview published a few weeks ago. Juve have kindly permitted Merpel to republish an English translation, which may interest English-speaking EPO watchers. The interview was conducted by Christina Geimer and Mathieu Klos from JUVE, Germany. Merpel is responsible for its translation, for which she thanks a kind reader.

Merpel notes that by coincidence, Juve has today published a rebuttal of the interview below, with EPO Vice-President Raimund Lutz. Merpel would be happy to publish such a rebuttal here, in line with her long-standing invitation to the EPO management to air its side of the story.

Incidentally, Merpel is juggling a few issues at the moment, and expects to follow up on other EPO-related matters very soon.

Juve - 29.10.2015

EPO Disciplinary Proceedings: 

"The actions of the Administrative Council and Battistelli are devoid of any legal basis."

The European Patent Office (EPO) suffers from a fundamental structural problem. Only a Diplomatic Conference of its Member States can help one of the world's largest patent offices to emerge from its current crisis. This is the view expressed by Prof. Dr. Siegfried Bross, a former judge of the Federal Constitutional Court (Bundesverfassungsgericht) and the Patent Division of the Federal Court of Justice (Bundesgerichthof) in an interview with JUVE

JUVE: Two years ago, as a legal expert for one of the parties in a complaint before the Federal Constitutional Court, you analyzed the question of the independence of the EPO Boards of Appeal. What conclusions did you come to at that time?

Siegfried Broß: The EPO Boards of Appeal are not an independent court. We are dealing here with a self-evident intermeshing of the roles of the President of the Office and the supervision of the Boards of Appeal. Therefore, the Boards of Appeal cannot be considered to possess the character of a court.

Juve: A lot has changed since you issued your legal opinion. The President of the EPO has imposed a house ban on a Member of the Boards of Appeal. In addition to that, Benoît Battistelli's reform proposal is now on the table. What conclusions do you draw today?

SB: These developments, especially the reform proposal, do nothing to alter the fundamental

incompatibility of the EPO's structure with the European Convention on Human Rights (ECHR), the European Charter of Fundamental Rights and rule-of-law-based democratic principles. The President still remains at the head of both the administrative and the judicial departments of the EPO and can exert influence on the Boards in terms of staffing and material issues. 

Juve: What needs to be done to remedy this unsatisfactory situation?

SB: The Boards of Appeal should be completely separated from the EPO and provided with their own management and budgetary resources. Furthermore, all personnel links to the EPO President should be severed. In addition, the European Patent Organisation should introduce life tenure for judges. These are matters which require action on the part of the Member States. They cannot absolve themselves from their obligations to uphold fundamental rights guaranteed by international conventions and/or by national laws merely on account of their participation in an international association of states. As a matter of fact, Germany should never have been allowed to participate in the European Patent Convention in its present form.

Juve: In the context of disciplinary proceedings against the suspended judge, the Administrative Council has recently requested the competent Enlarged Board of Appeal to make a proposal for his dismissal. What is your opinion about this?

SB: To begin with, it is must be noted out that the disciplinary proceedings

initiated in this case do not comply with the rule of law but rather have been conducted in a manner comparable to criminal proceedings. Therefore,  generally recognised principles such as the presumption of innocence under the ECHR and Charter of Fundamental Rights apply to those affected. Ab initio the EPA procedure has not been conducted in a proper manner because it has been directed by the President. According to rule-of-law principles, disciplinary proceedings against judges should be conducted exclusively by independent judges. From this perspective, these disciplinary proceedings are pre-destined to collapse.

Juve: The EPO published the main allegations against the accused person in a Communiqué. Is this compatible with international principles?

SB: In a disciplinary procedure the principle of confidentiality is of fundamental importance, in  particular having regard to the presumption of innocence. That does not mean that press releases are prohibited, but any kind of polemical content should be avoided.

In addition to this, in an internal e-mail to all EPA employees, a copy of which was provided to JUVE, Battistelli has publicly disseminated further accusations of a personally denigrating nature against the judge.

Such behavior is unacceptable. From the very outset, the actions of the President were devoid of any legal basis.

Juve: The basis for the Administrative Council's decision was, a report by an external investigation unit. Can this be used as a basis for the disciplinary tribunal?

SB: The deployment of this investigation unit provides the clearest possible confirmation that the disciplinary proceedings is not based on an approach which complies with the rule of law. The course of action which has been adopted could not be more flagrantly at odds with the international conventions to which all the Member States have subscribed.

Juve: What possibilities does the Enlarged Board of Appeal have now?

SB: They should reject all the requests of the Administrative Council and terminate the proceedings in order to draw attention to the fundamental abuse of procedure.

Juve: What impact might these problems have on the upcoming unity Patent?

SB: The Administrative Council must ensure that the EPC contracting states adhere to rule-of-law-based democratic principles and enforce an organisational separation of the administrative and judicial departments of the EPO. This is all the more urgent, because the Agreement on the Unitary Patent couples the EU in a blatantly unlawful manner to these structures. The regulations governing the Single Patent only provide effective legal protection in the case where a patent application is successful. If the EPO in its capacity as the competent administrative instance rejects an application, then the applicant cannot submit this decision to an independent judicial review. Such a state of affairs is contrary to Article 47 of the Charter of Fundamental Rights and, likewise Articles 6 and 13 ECHR.

Juve: Could a potential complaint against the Unitary Patent, for example before the Federal Constitutional Court, be based on such considerations? 

SB: Yes, of course. Due to the fact that it is only the owners of rejected patents who enjoy no judicial protection, there is additionally a violation of the right to protection of property enshrined in the ECHR. In additional, there is no objective reason for this omission - the formulation of the [Unitary Patent] Agreement is arbitrary in this respect.

The interview was conducted by Christina Geimer and Mathieu Klos.

Original German text available online here.