Jurisprudence

While Märpel rejoices for Ion Brumme and Malika Weaver, the new decisions do not solve the underlying problems of justice at the EPO. They only add a further layer of unpredictability to a situation that is severely dysfunctional.

AT-ILO is unpredictable. They do not follow their own jurisprudence, for example. The recent cases of Elisabeth Hardon and Patrick Corcoran, for example, are decided on the similar grounds of procedural economy: the court only argued that the disciplinary process was invalid and remitted the case. In the two cases, the court did not seek to determine whether the staff member was innocent or guilty, they simply argued that the decision was flawed. But one person was reinstated and the other one was not.

AT-ILO is also unpredictable because they sometimes decide on the matter (as an appeal court would do) and sometimes they only decide formally on the conditions of the procedure (as a court of review or "revisionsgericht" would do). In the case of Ion Brumme, for example, the court discusses at length whether the agreement that Ion Brumme signed, as chair of Suepo Munich, constituted misconduct and the tribunal notes that "a staff union must be free to conduct its own affairs". While Märpel can only rejoice that AT-ILO takes the role of a court of appeal (there is no other one), she also deplores the resulting unpredictability when this role is only taken in a fraction of the cases.

There is another gem in the latest decisions. Case 4052 was discussed in another blog and considers the situation of an ex employee of the EPO (dismissed in 2009, despite a national court rendering an opposite decision). The EPO initiated disciplinary proceedings against him in 2015, 6 years after he stopped working for the EPO for publishing his opinions on a personal blog. Indeed the EPO service regulations Articles 19 and 20 lay some limits as to what ex-employees may do and what they may publish, but common sense would interpret these articles quite differently. The normal way to oppose a blog for the EPO would be to go to a civil court. That would ensure equality of chances between an ex-employee and someone who never was an employee if they both start a blog. Or does the EPO wish to treat differently patent attorneys who are also ex-examiners and patent attorneys who never worked at the EPO, for example?

Demonstration today

Suepo Munich organised a demonstration today to celebrate the latest decisions of AT-ILO. Ion Brumme, Malika Weaver and Elisabeth Hardon were present.

In Suepo's words:

"The ILOAT ordered the reinstatement of Ion Brumme 'to the position he held immediately before his dismissal' and the restoration of Malika Weaver 'with retroactive effect to the grade and step she would have held but for the imposition of the disciplinary sanction', as well as payment of interest on the resulting remuneration arrear, payment of moral damages and payment of costs. Elizabeth Hardon's case has been remitted by the ILOAT to the EPO 'to enable a Disciplinary Committee, differently constituted, to consider the matter under Article 102 of the Service Regulations and for the President to make a fresh decision. She is entitled to moral damages and payment of costs.

The decisions of the ILOAT are a slap in the face of Mr. Battistelli and clearly demonstrate his incompetence to manage an international organization."

Märpel certainly rejoices for Ion Brumme and Malika Weaver. The case of Elisabeth Hardon, however, appears to be a Pyrrhic victory. Why wasn't she reinstated if the EPO was not able to do their part of the job? Why did AT-ILO consider that the cases of Ion Brumme and Malika Weaver were union bashing but the procedure over the third Suepo representative was not? Did they believe Mr Minnoye when he said publicly that all this was pure "Zufall" (randomness)?

Just a few hours before the decision was issued, someone posted a comment under the name of "Mentalist" on this site:
http://rip-kat.blogspot.com/2018/06/epo-flyer-number-38.html

"Mentalist" argued that "a remittal is the best option for EPO's management. It allows them to play cat and mouse for another couple of years, effectively keeping SUEPO busy. It passes the bucket to the next president, with a blank check to do nothing for a few years. It deprives the affected persons of any recourse, because the legal process would still be running."

AT-ILO results

Märpel is delighted to hear that Mr Ion Brumme, former SUEPO Munich chairperson, has been fully reinstated by ILOAT: http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4043&p_language_code=EN and Ms. Malika Weaver, former SUEPO Munich treasurer, too http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4042&p_language_code=EN

The case of Mrs, Elisabeth Hardon is remitted: http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=4047&p_language_code=EN

EPO-Flyer number 38

Märpel is not the only team to be upset about AT-ILO. Another team publishes "flyers" regularly under the name "Flyer team". The latest flyer is about AT-ILO: "The ILO Tribunal: Is it still worthy of our trust?"

The flyers are published on the following web site: http://www.epostaff4rights.org
That web site deserves as many "unique readers" as this little blog.

Flyer 38 lists all the deficiencies of AT-ILO.

Thank you!

As most of you probably noted, this blog is hosted by google. Google automatically compiles a collection of statistics as to the number of page views and visitors. Cats being naturally curious, Märpel had regular checks on these statistics.

We passed a milestone this week and can celebrate our 500th "unique viewer". Each page is viewed over thousand times. The little robots running the site told Märpel that the difference is due to cookies, but Märpel prefers to eat mice.

Thank you for being so many! You made this little blog valuable.

Google little robots also compile statistics as to where the "unique viewers" are. As expected most of them are in Germany and the Netherlands, but Märpel was delighted to find out that we have viewers in other countries too! One country stands out: we have viewers in France! Is that the reason why the little robots call these viewers "unique"?

Wirtschaftswoche

There is an article in today's edition of Wirtschaftswoche about the EPO, discussing the scandalous investment guidelines and that President Battistelli celebrated the inventor of the year in Saint Germain, in a theatre he manages privately.
Our Munich and Berlin readers may want to get their own copy.

Innocent!

Extraordinary news were published on the Kluwer patent blog yesterday:

"Landgericht München: Patrick Corcoran is Innocent and Acquitted of all Charges":

http://patentblog.kluweriplaw.com/2018/06/20/landgericht-munchen-patrick-corcoran-innocent-acquitted-charges

In summary, President Battistelli and Vice-President Topić sued Mr. Corcoran for libel in front of a German court. Mr. Bausch managed to have access to the original decision (which is linked in original and in English translation) and the decision says:

"The Landgericht thoroughly destroyed the complaint, designating plaintiffs' evidence as „assumptions" or „suspicions" far away from the high probability or near certainty necessary for entering a judgment against the defendant, and held that there is no basis for the accusations (a) that Mr. Corcoran wrote a certain allegedly defamatory email about Mr. Topić, (b) that he sent this email out, (c) that it was received by any of the alleged addressees, and (d) that the email was even defamatory to the Plaintiffs. I would call this decision a first class acquittal."

Märpel notes a little fact that was apparently forgotten in Mr. Bausch report. There was a good reason for the civil action: because a civil action was running, the Administrative Council could not reinstate Mr. Corcoran. As comments on the Kluwer patent blog point out: "The rotting fish stinks from the head."

Märpel also notes that AT-ILO made no mention of the facts listed by the Landgericht in their own decision. They didn't even mention that the EPO investigation unit themselves found that they could not assign the libel email found on the USB stick to Mr. Corcoran. Certainly, AT-ILO were informed of that report by the EPO investigation unit, yet they chose to do nothing. Mr. Petrović, your actions speak louder than words. AT-ILO prejudice is now clear.

But the court in Karlruhe is likely to notice Mr. Petrović actions. Are they going to be satisfied with a court which ignores the basic principles of justice, ignores the facts concerning Mr.Corcoran or is satisfied that President Battistelli can harass and dismiss staff representatives? The next public reading in Geneva is next week and will be just as scandalous. Quo usque tandem?

Irrenhaus

Prowling around the corridors of the Isar building, Märpel learnt unfortunate news. It appears that Mr. Corcoran is in hospital. Märpel heard he was sent to be treated for "psychiatric reasons". Märpel has no access to the medical file and cats are not familiar of psychiatric hospitals, but there are few reasons to be sent to a psychiatric hospital in Germany. The most common one is when the patient is in danger of committing suicide.

Märpel sincerely hopes she is wrong and wishes Mr. Corcoran a prompt recovery.

A common cause

After the last article, some people approached Märpel with questions. The word "corruption" was used.

Märpel would like to point out that she did not use that word.

Let us just say that there are many ways to win people to one's cause but that it is always much easier when they believe that your cause is also theirs. Mr. Petrović was always convinced that this cause was just.

Reread the text from Guido Raimondi, President of the European Court of Human Rights, that Märpel posted on 2/5:

"with regard to the requirements of the European Convention on Human Rights, in particular its article 6. We have seen that so far, in both cases, the European Court of Human Rights has exercised to the highest degree an attitude of self-restraint. What about this attitude? We know that a certain part of the doctrine is quite critical of this jurisprudence, which is considered not sufficiently protective of the fundamental rights of international civil service workers. For my part, I tend to believe that the independence of international organisations is such an essential value for these organisations to be able to carry out their respective missions, which are so important for the well-being of humanity and, ultimately, for the safeguarding of peace, that the Strasbourg Court only recognises its true value."

To Mr. Raimondi, safeguarding the independence of international organisations is more important than access to a fair trial for civil service workers (that is what article 6 of the European convention on human rights says: "right to a fair trial") because the well-being of humanity depends on it. If the President of the European Court of Human Rights is convinced enough to say publicly so, Märpel believes that others are just as convinced, Mr. Petrović amongst many. In their minds, fair trial is a right that civil service workers should not have. Then it should be no surprise that Mr. Petrović was easily convinced that safeguarding the independence of the EPO was more important than insuring a right to a fair trial. He was already convinced that the independence (read "immunity") of international organisations should be safeguarded over other rights.

That may be the case, the independence of international organisations is indeed important. Except that there is a catch: the right to a fair trial is an essential component of the principle of the separation of powers ("Gewaltenteilung"). When the judiciary submits to the executive, a situation arises where the executive can abuse its powers. Because International organisations are so small, the executive is impersonated by a single man, so the danger for abuse is extreme.

Märpel believes that this is exactly what happened at the EPO. President Battistelli saw the opportunity to seize power and turned the organisation to a ghost of its former self: it does not fulfil its mission of examining patents any more, it is haemorrhaging staff, its financial assets have been seized by what could be a Ponzi scheme (over 2 billions Euros). All what was needed was complacency from the judiciary.

The best friend of a key man.

In a previous article from 19/5, somebody commented that Mr. Petiaud downgrading was purely politic:

"On the 30-09-2014, VP4 Topic & VP5 Lutz published on the EPO intranet the communiqué "Functioning of the settlement of disputes system".

The communiqué explains the alleged misconducts of IAC's members nominated by the Central staff Committee (CSC):

" (...)
CSC appointees are putting artificial hurdles to the daily functioning of the IAC. e.g. providing minority views by documents redoing the opinion, thus duplicating the work already done.
Two of the CSC appointees are repetitive appelants with more than 20 cases pending which leads to excessive discussions on impartiality.
(...)"

It appears from the communiqué that the misconduct of A.P. & M. L. is "providing minority opinion" and "being themselves appelants with pending cases".
As we can see, the complains from the EPO management were purely politic.
The purpose was clearly to destroy the independence of the IAC and to avoid minority opinions in favour of staff.

The ILOAT judges did not mention the existence of the communiqué in their judgement.
Why?"

Thank you for that comment, Märpel had forgotten that communiqué.

That same person ended the comment with a question:

"How could a staff member win a case if the ILOAT judges systematically hide part of the facts?"




The simple answer is that staff cannot. That is a feature. The internal "justice" system finds staff guilty in all the cases. When it still found staff innocent (before 2016), President Battistelli could simply disregard their opinion. After that time, President Battistelli changed the members to ones more "loyal" to his person and exercised retribution on the others to make sure the ones of his choosing stayed "loyal". AT-ILO not only agrees with this practice but went out of their way to move publications of key decisions like the one concerning Mr. Corcoran to a date better suiting President Battistelli plans.

With a tribunal eager to please the President, what can we expect in the future? The big decisions which are expected in the near future are about the members of Suepo who were dismissed. The decisions were planned for the second half of this year or later, which would have allowed Suepo to negotiate a settlement with the new President. Who knows? Maybe a gesture of good will would have been useful for a President entering his functions?

AT-ILO moved the publication of the decisions to be just in time for the big parties at the end of President Battistelli's term: grand opening of Saint Germain newly decorated theatre and inauguration of the most expensive building in Holland. Märpel does not believe they moved the publication of these judgments to spoil the parties. Sorry, Mrs. Hardon, Mr. Brumme and Mrs. Weaver.


AT-ILO is not independent. AT-ILO does not respect the most basic principles of justice: it does not hear the parties, it does not reconsider the facts presented by the investigation unit which is partial to the EPO by its very nature, it hides facts as it sees fit. AT-ILO is a tribunal only by name and a shame to anyone with a legal background.



How could it come to that? First, AT-ILO is dependent financially on its largest purveyor of cases. But mostly the situation is explained from personal ties.

To understand these ties, one has first to know the internal structure of AT-ILO. It is not run by or for judges. There are 3, but they are only flown in to read decisions already pre-written. They are chosen amongst already retired judges and are normally not specialists of the particular legal system in which AT-ILO operates, even if they may be specialists in international law. Therefore they are easily convinced that the pre-written decisions are correct if they look prima facie convincing.

To do the actual work of drafting the decisions of the case, AT-ILO uses its own staff under the control of the Registrar: Dražen Petrović. Mr Petrović entered its functions at the end of 2013. In 2014, after a meeting with representatives of the EPO, Mr Petrović decided to add a third annual session to work on the extremely high backlog of EPO cases and immediately proceeded to do so by summarily dismissing an extraordinary number of cases. Märpel can only compare the statistics on the number of cases won and lost before 2014 and afterwards. This can only be the work of the team under the management of the new registrar.



At the end of 2013 something else also happened, this time at the EPO. President Battistelli hired a new person to be head of department employment law in Munich. Department employment law is the department of jurists doing the work of preparing the submissions of the EPO in AT-ILO cases. That department is only a few people in the 7th floor of the Isar building, most of whom are on fixed term contracts. The head of that department is Laurent Germond.

How President Battistelli managed to recruit Mr Germond is a mystery. Before the EPO, Mr. Germond had the same work at the European Space Agency in Paris. Why, as a Frenchman, did he chose to leave Paris to do the same job at about the same salary in Munich? The EPO and the ESA are both international organisations and have similar pay scales. Rumours say that some promises were made, but Märpel would advise Mr. Germond not to trust rumours. President Battistelli rarely holds his promises and, in any case, time is running short.

But, in 2013, President Battistelli wanted Mr. Germond so badly that the recruitment procedure took months, in complete disregard of applicable regulations.

Why was President Battistelli so eager to hire Mr. Germond? Märpel believed that the reason is that Mr Germond and Mr. Petrović are personal friends. The world of international organisations is tiny, the world of international administrative justice even more so. Mr Germond and Mr. Petrović have worked in that circle for a long time and have come to appreciate each other. And maybe a bit more than that, but Märpel cannot tell without revealing her sources.

When he entered his functions, President Battistelli knew the EPO very well from his work in the administrative council. He knew, from the experiences of previous presidents, that the main card of the staff was AT-ILO. The tribunal overturned several key decisions in favour of staff. President Battistelli wanted none of that. President Battistelli knew that it was absolutely vital to his plans that AT-ILO would be in is favour. He needed a way. The new registrar offered him one.