The decisions concerning Mr. Corcoran can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3958&p_language_code=EN
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3960&p_language_code=EN
Interestingly, they do not decide anything. They simply notice that the President had a conflict of interest and that the procedure was therefore flawed. They explicitly say that the decisions on the compatibility of the dismissal procedure with Article 23 of the EPC (independence of the members of the boards of appeal) are not final.
Märpel notes with surprise that this is the first time AT-ILO does not summarily dismiss a request on a decision which is not final. Märpel also notes with surprise that AT-ILO makes no mention that the only procedure to discipline a member of the boards involves the Enlarged Board of Appeal. The same Enlarged Board of Appeal who, on June 10th 2016 published that President Battistelli violated judicial independence. Merpel reported on that extraordinary event here:
http://ipkitten.blogspot.de/2016/06/enlarged-board-publishes-decision-epo.html
This is also the only place where the words of the Enlarged Board of Appeal can be found, as the EPO neglected to publish it.
Basically, AT-ILO failed to actually revise the procedure in these decisions. Mr.Corcoran stays in legal limbo and Märpel does not have the faintest idea of what is supposed to happen next. Probably nothing.
The EPO did not publish anything about these decisions, but they published a glowing report on the next session (the 125th session, published in January) and especially about 2 further decisions also concerning Mr. Corcoran. The decisions can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3961&p_language_code=EN
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3959&p_language_code=EN
Judgment 3961 concerns President Battistelli publication of the details of the pending proceedings against Mr. Corcoran in the EPO and in the press. AT-ILO finds that "the complainant has no right to request the initiation of an investigation against another staff member". The complaint is dismissed. Basically, the decision implies complete immunity of EPO officials: they cannot be fought in external tribunals and Judgment 3961 also makes it clear that they cannot be fought in the EPO internal justice system either.
Judgment 3959 concerns the confiscation of a private USB stick. AT-ILO finds the complaint to be irrecevable and cites earlier judgment 3958: "the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as part of a challenge to the final decision but they themselves, cannot be the subject of a complaint to the Tribunal."
Märpel wonders what "final decision" is possible in the present case. The only disciplinary court for boards members is the Enlarged Board of Appeal and it already rendered an opinion and another is not planned. The Administrative Council was content in their December session that the matter had been settled. These judgments from January set the road free for AT-ILO to summarily dismiss whatever complaints may have been additionally filed, yet there is no indication that a decision on the substance of the case will ever be taken.
4 comments:
Excellent. Comment posting facility is now open.
I wonder if it works?
Let's see.
This just confirms that EPO employees have no rights, and management is not held accountable for its behaviour
And the Admin council, who could/should hold management accountable, is silent.
The affirmation that "the only disciplinary court for board members is the Enlarged Board of Appeal" is not entirely correct. The Enlarged Board of Appeal is only competent insofar as the removal from office of a member of the Boards of Appeals is concerned (Article 23(1) EPC). If other disciplinary measures are envisaged, the Administrative Council exercises its disciplinary power (Article 11(4) EPC) without the involvement of the Enlarged Board of Appeal. The Disciplinary Committee of the Administrative Council (established according to the Service Regulations for permanent employees, which also apply to the members of the Boards of Appeal) is consulted before a decision is taken before a disciplinary measure is decided upon by the Administrative Council (other then removal from office).
Whether this disciplinary power of the legislative organ of the European Patent Organisation (Article 33 EPC) is compatible with the requirement of personal independence of the judge, as set forth in the (un)written constitutions of the member states of the Organisation is a different question.
You are right, Märpel should have written that the EBoA was only necessary for removing a member. The important fact is nevertheless that the EBoA complained from interference and that there is no mention of this in the judgment.
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