Thursday, 31 May 2018
Fronleichnam
Märpel wishes a pleasant holiday to all residents of Bavaria. The weather is superb, enjoy your day!
Tuesday, 29 May 2018
Nothing can be said to be certain, except death and taxes
Märpel shall come back to AT-ILO in a next article, but she was shortly presented with breaking news about the EPO finances.
The EPO owns lots of money. The operating surplus is about 350 millions Euros every year, and this is after paying for one of the most expensive building in Holland. The EPO cash reserves are over 2.3 BILLIONS Euros.
Märpel is not surprised. Tightening salaries, stopping all investment in training and forcing your staff to output 40% more patents while keeping fees unchanged must yield some effects. The EPO swims in money, literally.
Actually, Märpel notes that the EPO budget is world readable on https://www.epo.org/modules/epoweb/acdocument/epoweb2/289/en/CA-50-17_Add._1_B_en.pdf There are a few gems in that document, maybe someone should host a public copy just in case?
President Battistelli has decided he needed a blank check to play with that money on the stock and derivatives market. Apparently he did not learn about the toxic loans of Saint-Germain. Or maybe he knows them too well, Märpel cannot say. Usually money lost in risky investments is not lost for everybody.
The Council, in its rubber-stamping majesty, decided to approve the new investment guidelines last December. Lately the budget and finances committee cleared the small details. Interested readers having access to the EPO intranet may look for document CA/F 10/18.
Märpel finds difficult to believe what that document says. Apparently, the EPO is going to set aside "around 250 millions Euros" every year in the next 20 years and expects that the total treasury will reach EUR 12 billions Euros after a period of 20 years, which is lots of money even for cats. The expected long term return on the modelled portfolio is 4,0% and the annual risk is 15,1% of the Net Assets Value, which Märpel understands to mean that the EPO will invest in relatively high risk assets to get that level of return. Märpel's compound interests calculator also notes that the figures do not match, unless the EPO would also invest its complete cash reserve in that risky scheme (2.3 billions Euros). But then with what money shall the EPO be run, salaries paid, etc? Märpel also notes that up to 75% can be invested in risk investments (equities, commodities, real estate and "alternatives"), which probably explains the 4% annual return in times when one is lucky to get 0.5%.
Nobody knows what the EPO is going to do with 12 billions Euros in 20 years. If the scheme succeeds (and that is a big "if"), the next-next-next-next President is going to have lots of money to play with. Or will he?
Märpel also notes that the whole scheme is going to be operated under German law by a Master-Kapitalverwaltungsgesellschaft (which is also regulated by German law). Now, that is interesting.
A particularity of German law is that the EPO is not always as immune to it as it wishes. In particular, the EPO found that the Bundesfinanzhof (the highest court responsible for taxes) can be particularly unimpressed by its immunities. Lately it decided that EPO pensions are taxable in Germany and decided so over a technicality: that the pension reserve fund was under control of the EPO president:
"Um das Versorgungssystem durch die Bildung von angemessenen Rücklagen zu sichern, hat die EPO im Rahmen ihrer Gesamtfinanzierung u.a. einen Reservefonds für Pensionen (im Folgenden: Reservefonds) gebildet (Art. 2 Abs. 2 des Statuts der Reservefonds für Pensionen und soziale Sicherheit der EPO - Reservefonds-Statut -). Der Fonds bildet ein zweckgebundenes Sondervermögen der EPO, besitzt aber keine eigene Rechtsfähigkeit. Er wird vom EPA verwaltet (Art. 2 Abs. 1 Reservefonds-Statut). Die Mittel des Fonds werden vom EPA durch Zuweisungen aus dem Haushalt der EPO gebildet. Sie sind getrennt vom übrigen Vermögen der EPO zu verwalten (Art. 3 Abs. 1 Reservefonds-Statut). Die Anlagen des Fonds werden für die Zwecke des Statuts so behandelt, als seien sie Vermögen des Fonds; sie bleiben jedoch stets Vermögen der EPO (Art. 3 Abs. 5 Reservefonds-Statut). Der Haushaltsplan der EPO weist in seinem Teil I das "Hauptbudget" und in Teil II das "Versorgungs- und Sozialversicherungssystem Budget" aus." ("besitzt aber keine eigene Rechtsfähigkeit" = "is not legally independent"). Probably the EPO pensioners would save on taxes if President Battistelli had let the pension reserve fund be independent, but this is not the subject of this post.
Back on the subject of the new investment scheme. Märpel notes that the EPO is exempt from taxes in Germany because of the PPI (protocol on privileges and immunities) signed with the FR of Germany. But the PPI does not foresee that the EPO plays in the stock market. Neither does the European Patent Convention, see Articles 37: "budgetary funding", 39 "The Organisation's own resources" and 40 "Level of fees and payments". And the EPO starts an investment company under German law, managed by a German Kapitalverwaltungsgesellschaft. Who wants to bet with Märpel that the Bundesfinanzhof finds out that the 12 billions Euros will be taxable in Germany?
Märpel also notes that the only delegate who voted against the project came from Germany. Is Germany not interested in taxes on future earnings or did Germany realise that the earnings may not be as projected?
In any case, the project is unknown in the history of civil service. Public institutions do not normally get to play on the stock and derivatives market. Märpel also reminds you that it is YOUR money, the EPO got it to actually do the work of thoroughly examining patents.
The EPO owns lots of money. The operating surplus is about 350 millions Euros every year, and this is after paying for one of the most expensive building in Holland. The EPO cash reserves are over 2.3 BILLIONS Euros.
Märpel is not surprised. Tightening salaries, stopping all investment in training and forcing your staff to output 40% more patents while keeping fees unchanged must yield some effects. The EPO swims in money, literally.
Actually, Märpel notes that the EPO budget is world readable on https://www.epo.org/modules/epoweb/acdocument/epoweb2/289/en/CA-50-17_Add._1_B_en.pdf There are a few gems in that document, maybe someone should host a public copy just in case?
President Battistelli has decided he needed a blank check to play with that money on the stock and derivatives market. Apparently he did not learn about the toxic loans of Saint-Germain. Or maybe he knows them too well, Märpel cannot say. Usually money lost in risky investments is not lost for everybody.
The Council, in its rubber-stamping majesty, decided to approve the new investment guidelines last December. Lately the budget and finances committee cleared the small details. Interested readers having access to the EPO intranet may look for document CA/F 10/18.
Märpel finds difficult to believe what that document says. Apparently, the EPO is going to set aside "around 250 millions Euros" every year in the next 20 years and expects that the total treasury will reach EUR 12 billions Euros after a period of 20 years, which is lots of money even for cats. The expected long term return on the modelled portfolio is 4,0% and the annual risk is 15,1% of the Net Assets Value, which Märpel understands to mean that the EPO will invest in relatively high risk assets to get that level of return. Märpel's compound interests calculator also notes that the figures do not match, unless the EPO would also invest its complete cash reserve in that risky scheme (2.3 billions Euros). But then with what money shall the EPO be run, salaries paid, etc? Märpel also notes that up to 75% can be invested in risk investments (equities, commodities, real estate and "alternatives"), which probably explains the 4% annual return in times when one is lucky to get 0.5%.
Nobody knows what the EPO is going to do with 12 billions Euros in 20 years. If the scheme succeeds (and that is a big "if"), the next-next-next-next President is going to have lots of money to play with. Or will he?
Märpel also notes that the whole scheme is going to be operated under German law by a Master-Kapitalverwaltungsgesellschaft (which is also regulated by German law). Now, that is interesting.
A particularity of German law is that the EPO is not always as immune to it as it wishes. In particular, the EPO found that the Bundesfinanzhof (the highest court responsible for taxes) can be particularly unimpressed by its immunities. Lately it decided that EPO pensions are taxable in Germany and decided so over a technicality: that the pension reserve fund was under control of the EPO president:
"Um das Versorgungssystem durch die Bildung von angemessenen Rücklagen zu sichern, hat die EPO im Rahmen ihrer Gesamtfinanzierung u.a. einen Reservefonds für Pensionen (im Folgenden: Reservefonds) gebildet (Art. 2 Abs. 2 des Statuts der Reservefonds für Pensionen und soziale Sicherheit der EPO - Reservefonds-Statut -). Der Fonds bildet ein zweckgebundenes Sondervermögen der EPO, besitzt aber keine eigene Rechtsfähigkeit. Er wird vom EPA verwaltet (Art. 2 Abs. 1 Reservefonds-Statut). Die Mittel des Fonds werden vom EPA durch Zuweisungen aus dem Haushalt der EPO gebildet. Sie sind getrennt vom übrigen Vermögen der EPO zu verwalten (Art. 3 Abs. 1 Reservefonds-Statut). Die Anlagen des Fonds werden für die Zwecke des Statuts so behandelt, als seien sie Vermögen des Fonds; sie bleiben jedoch stets Vermögen der EPO (Art. 3 Abs. 5 Reservefonds-Statut). Der Haushaltsplan der EPO weist in seinem Teil I das "Hauptbudget" und in Teil II das "Versorgungs- und Sozialversicherungssystem Budget" aus." ("besitzt aber keine eigene Rechtsfähigkeit" = "is not legally independent"). Probably the EPO pensioners would save on taxes if President Battistelli had let the pension reserve fund be independent, but this is not the subject of this post.
Back on the subject of the new investment scheme. Märpel notes that the EPO is exempt from taxes in Germany because of the PPI (protocol on privileges and immunities) signed with the FR of Germany. But the PPI does not foresee that the EPO plays in the stock market. Neither does the European Patent Convention, see Articles 37: "budgetary funding", 39 "The Organisation's own resources" and 40 "Level of fees and payments". And the EPO starts an investment company under German law, managed by a German Kapitalverwaltungsgesellschaft. Who wants to bet with Märpel that the Bundesfinanzhof finds out that the 12 billions Euros will be taxable in Germany?
Märpel also notes that the only delegate who voted against the project came from Germany. Is Germany not interested in taxes on future earnings or did Germany realise that the earnings may not be as projected?
In any case, the project is unknown in the history of civil service. Public institutions do not normally get to play on the stock and derivatives market. Märpel also reminds you that it is YOUR money, the EPO got it to actually do the work of thoroughly examining patents.
Thursday, 24 May 2018
Suicide is painless, it brings on many changes
As Märpel noted in the previous post, the 125th session of the ILOAT published in January was so successful for the EPO that Laurent Germond, Director Employment Law, published a glowing report on the EPO intranet.
Right after judgment 3971, the report continues with another judgment concerning a staff representative: "Staff representation and respect of the ServRegs and the standards of conduct"
Laurent Germond continues:
"In Judgment No 3968, the Tribunal confirmed that staff representatives are not immune and must abide by provisions of the ServRegs and the standards of conduct. The case related to the death of an EPO employee concerns Ms E.H., at that time staff representative, who forwarded to a SUEPO distribution list, a copy of the letter written on 5 June 2012 by the Munich local section of the SUEPO and the Munich Staff Committee to the President, with an accompanying email where she wrote that "most of us believe that the behaviour of [the deceased staff member's] (previous) manager and the unfounded attacks by PD4.3 (culminating in a disciplinary procedure) have contributed significantly to his death."
The Tribunal considered that the President of the Office, while disregarding the opinion of the Disciplinary Committee, was fully justified to apply a severe sanction - downgrading - to this staff representative. "Indeed, sending in full knowledge to a large group of persons an email containing accusations likely to highly damage the name and reputation of a staff member does constitute such a failure." The Tribunal concluded that Ms E.H. "acted carelessly, with regard to a very sensitive subject, conscious of the probability that her statement would highly offend other staff members and would create great unrest among colleagues, damaging the work environment." It further emphasised her refusal to present any apologies and the serious consequences of her behaviour on the health of the manager. Her complaint against an alleged institutional harassment was also dismissed."
The text of judgment 3968 can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3968&p_language_code=EN
There are so many problems with this judgement that Märpel does not know where to start. Maybe she should simply start with the facts: someone committed suicide and Mrs Elisabeth Hardon, who had dealt with that person as a staff representative, was understandably upset. She was all the more upset because it was the second suicide under the same manager. Judgment 3968 fails to mention that "detail", although the tribunal was certainly informed by the defendant.
After that suicide Mrs Hardon send an E-mail to an internal SUEPO distribution list were she stated as follows:
"[...] most of us believe that the behaviour of [the deceased staff member's] (previous) manager and the unfounded attacks by PD4.3 (culminating in a disciplinary procedure) have contributed significantly to his death. [...] Formally the Office will of course deny any guilt. But we hope that this letter will contribute to an internal discussion and maybe some lessons will be learnt."
(This is the text, verbatim, from judgement 3968.)
Märpel finds that text to be a rather measured response to a double suicide. Mr A., the manager of the two deceased persons, considered that single e-mail harassment.
Harassment has always been a difficult subject at the EPO, so difficult that the definition of harassment was the subject of several circulars. Märpel understands that Mrs Hardon was found guilty under the terms of a circular published after the facts (point 8 of judgement 3968).
Actually, Mrs Hardon was NOT found guilty, twice. VP4 wrote to that effect on 13 July 2012 (point 4 of judgement 3968) and the disciplinary committee wrote a report to the same effect on 28 January 2014 (point 8 of judgement 3968). But President Battistelli found otherwise and decided to downgrade Mrs Hardon.
Judgement 3968 confirmed the sanction. Most striking is point 18: "Consistent case law holds that the executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body". Märpel understands that AT-ILO is satisfied that President Battistelli can strike any staff member he wants, with complete disregard for internal disciplinary bodies.
Isn't there a problem with that?
Mrs. Hardon was dismissed later and for another case of "harassment" (that time a single word and not an email). She was dismissed together with another SUEPO official, Ion Brumme. A third SUEPO official, Malika Weaver, was downgraded. The 3 cases are planned for the next session of AT-ILO, right in time for President Battistelli end of contract bonus and inventor of the year event. Timing is everything. Märpel hates to predict the future, but her contacts in the 7th floor of the Isar building told her that the celebrations shall not be spoiled. It is a little known fact that the Office receives AT-ILO judgements before official publication.
Märpel does not predict the future, but she can talk about the past and the past explains everything. In the next article.
Right after judgment 3971, the report continues with another judgment concerning a staff representative: "Staff representation and respect of the ServRegs and the standards of conduct"
Laurent Germond continues:
"In Judgment No 3968, the Tribunal confirmed that staff representatives are not immune and must abide by provisions of the ServRegs and the standards of conduct. The case related to the death of an EPO employee concerns Ms E.H., at that time staff representative, who forwarded to a SUEPO distribution list, a copy of the letter written on 5 June 2012 by the Munich local section of the SUEPO and the Munich Staff Committee to the President, with an accompanying email where she wrote that "most of us believe that the behaviour of [the deceased staff member's] (previous) manager and the unfounded attacks by PD4.3 (culminating in a disciplinary procedure) have contributed significantly to his death."
The Tribunal considered that the President of the Office, while disregarding the opinion of the Disciplinary Committee, was fully justified to apply a severe sanction - downgrading - to this staff representative. "Indeed, sending in full knowledge to a large group of persons an email containing accusations likely to highly damage the name and reputation of a staff member does constitute such a failure." The Tribunal concluded that Ms E.H. "acted carelessly, with regard to a very sensitive subject, conscious of the probability that her statement would highly offend other staff members and would create great unrest among colleagues, damaging the work environment." It further emphasised her refusal to present any apologies and the serious consequences of her behaviour on the health of the manager. Her complaint against an alleged institutional harassment was also dismissed."
The text of judgment 3968 can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3968&p_language_code=EN
There are so many problems with this judgement that Märpel does not know where to start. Maybe she should simply start with the facts: someone committed suicide and Mrs Elisabeth Hardon, who had dealt with that person as a staff representative, was understandably upset. She was all the more upset because it was the second suicide under the same manager. Judgment 3968 fails to mention that "detail", although the tribunal was certainly informed by the defendant.
After that suicide Mrs Hardon send an E-mail to an internal SUEPO distribution list were she stated as follows:
"[...] most of us believe that the behaviour of [the deceased staff member's] (previous) manager and the unfounded attacks by PD4.3 (culminating in a disciplinary procedure) have contributed significantly to his death. [...] Formally the Office will of course deny any guilt. But we hope that this letter will contribute to an internal discussion and maybe some lessons will be learnt."
(This is the text, verbatim, from judgement 3968.)
Märpel finds that text to be a rather measured response to a double suicide. Mr A., the manager of the two deceased persons, considered that single e-mail harassment.
Harassment has always been a difficult subject at the EPO, so difficult that the definition of harassment was the subject of several circulars. Märpel understands that Mrs Hardon was found guilty under the terms of a circular published after the facts (point 8 of judgement 3968).
Actually, Mrs Hardon was NOT found guilty, twice. VP4 wrote to that effect on 13 July 2012 (point 4 of judgement 3968) and the disciplinary committee wrote a report to the same effect on 28 January 2014 (point 8 of judgement 3968). But President Battistelli found otherwise and decided to downgrade Mrs Hardon.
Judgement 3968 confirmed the sanction. Most striking is point 18: "Consistent case law holds that the executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body". Märpel understands that AT-ILO is satisfied that President Battistelli can strike any staff member he wants, with complete disregard for internal disciplinary bodies.
Isn't there a problem with that?
Mrs. Hardon was dismissed later and for another case of "harassment" (that time a single word and not an email). She was dismissed together with another SUEPO official, Ion Brumme. A third SUEPO official, Malika Weaver, was downgraded. The 3 cases are planned for the next session of AT-ILO, right in time for President Battistelli end of contract bonus and inventor of the year event. Timing is everything. Märpel hates to predict the future, but her contacts in the 7th floor of the Isar building told her that the celebrations shall not be spoiled. It is a little known fact that the Office receives AT-ILO judgements before official publication.
Märpel does not predict the future, but she can talk about the past and the past explains everything. In the next article.
Saturday, 19 May 2018
International Lost-judgements Organization
The 125th session of the ILOAT published in January was so successful for the EPO that Laurent Germond, Director Employment Law, published a glowing report on the EPO intranet.
The report opens with judgment 3971: "Ensuring the well-functioning of the EPO Internal Appeals Committee (former IAC)"
Laurent Germond continues:
"In Judgement No 3971, the Tribunal confirmed the decision of the President to discipline for serious misconduct and to downgrade a former member of the ApC, Mr A.P., appointed by the Central Staff Committee, who obstructed the work of the Committee. The Tribunal considered in particular that "the complainant's refusal to attend the IAC hearings and sessions was particularly onerous for the Organisation considering the heavy backlog of internal appeals that the IAC needed to confront." "
The text of judgment 3971 can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3971&p_language_code=EN
Märpel notes that Mr. Germond knows the jurisprudence of AT-ILO as he wrote his thesis and a book on the subject. He therefore cannot ignore that AT-ILO used to balance the interests of the employers with the particular needs for protection of the staff representatives. If you have a copy of Laurent Germond's "Les principes généraux selon le tribunal administratif de l'O.I.T", check pages 160-170. He therefore should be surprised of the stark departure from that jurisprudence in that judgment.
The events concerning Mr Aurelien Petiaud are known from all the EPO. They took place in 2014. At the time, Mr Petiaud found it necessary to protest the way the appeal committee was run under President Battistelli's orders. It was run as a purely rubber-stamping affair and since the members chosen by staff were in minority, cases were lost. Mr Petiaud protested and took a courageous decision: on each case he took the time to write a minority opinion (see judgment point 16), thereby documenting the malfunctioning of the committee.
President Battistelli was not amused and simply increased the workload to a point where there was no time to write these opinions and still attend the sessions. Mr Petiaud refused and publicly explained why he took that decision, in agreement with SUEPO. To all EPO staff, it was clear that this was a political message and not a refusal to carry out his duties.
But AT-ILO found differently. Märpel may only wonder at what the "L" in "ILO" stands for. It used to stand for "labour".
The report opens with judgment 3971: "Ensuring the well-functioning of the EPO Internal Appeals Committee (former IAC)"
Laurent Germond continues:
"In Judgement No 3971, the Tribunal confirmed the decision of the President to discipline for serious misconduct and to downgrade a former member of the ApC, Mr A.P., appointed by the Central Staff Committee, who obstructed the work of the Committee. The Tribunal considered in particular that "the complainant's refusal to attend the IAC hearings and sessions was particularly onerous for the Organisation considering the heavy backlog of internal appeals that the IAC needed to confront." "
The text of judgment 3971 can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3971&p_language_code=EN
Märpel notes that Mr. Germond knows the jurisprudence of AT-ILO as he wrote his thesis and a book on the subject. He therefore cannot ignore that AT-ILO used to balance the interests of the employers with the particular needs for protection of the staff representatives. If you have a copy of Laurent Germond's "Les principes généraux selon le tribunal administratif de l'O.I.T", check pages 160-170. He therefore should be surprised of the stark departure from that jurisprudence in that judgment.
The events concerning Mr Aurelien Petiaud are known from all the EPO. They took place in 2014. At the time, Mr Petiaud found it necessary to protest the way the appeal committee was run under President Battistelli's orders. It was run as a purely rubber-stamping affair and since the members chosen by staff were in minority, cases were lost. Mr Petiaud protested and took a courageous decision: on each case he took the time to write a minority opinion (see judgment point 16), thereby documenting the malfunctioning of the committee.
President Battistelli was not amused and simply increased the workload to a point where there was no time to write these opinions and still attend the sessions. Mr Petiaud refused and publicly explained why he took that decision, in agreement with SUEPO. To all EPO staff, it was clear that this was a political message and not a refusal to carry out his duties.
But AT-ILO found differently. Märpel may only wonder at what the "L" in "ILO" stands for. It used to stand for "labour".
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Monday, 14 May 2018
A judge and no legal system
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.
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.
Friday, 11 May 2018
Pyrrhic victory
In the previous article, Märpel found out that Guido Raimondi, President of the European Court of Human Rights, finds that the way justice is administered at the EPO is no ground for action. As readers know, the EPO justice system is first based on an internal system for which President Battistelli uses his discretionary rights to reject cases as he sees fit followed by a revision procedure at the AT-ILO. It is quite important to note that AT-ILO is not an appeal court, but rather a "Revisionsgericht". It will not reopen proceedings, only check whether the regulations were correctly applied.
Märpel notes that the regulations allow the President of the EPO to decide as he so wishes, which seriously limits what can be revised.
Märpel further notes that a condition for revision is that the means of the internal procedure must be exhausted. Considering that the length of the internal procedure is in the hands of the EPO and that there is no recourse against an inordinately long procedure, this also seriously limits what can be revised.
Last but not least, Märpel notes that delays at AT-ILO can be so long so as to render the decision moot. So, it came as a surprise when AT-ILO published judgments 3958 and 3960 last December. The judgments concert Patrick Corcoran, the most prominent member of the boards of appeal at the EPO.
Except that Märpel wonders what would have happened if the judgments had been published just two weeks later. The consequence of the judgments 3958 and 3960 were simply that Mr. Corcoran was reinstated for 2 weeks. The blogs and the press celebrated a victory, because Mr. Corcoran was reinstated. But it was a pyrrhic victory and allowed President Battistelli to exercise retribution as soon as the press was moving on to the next news.
Märpel can only wonder what would have happened if the exact same decision had been given in the next session. Would AT-ILO have decided Mr. Corcoran to be reinstated in his former post and he would then still be at the boards? Would they rather have found out that his contract had run out so there was no possibility of redress? Then the scandal would have been much higher.
The timing of these decision changed everything. Cui bono?
The content of these and further decisions on the same case will be discussed in the next article.
Märpel notes that the regulations allow the President of the EPO to decide as he so wishes, which seriously limits what can be revised.
Märpel further notes that a condition for revision is that the means of the internal procedure must be exhausted. Considering that the length of the internal procedure is in the hands of the EPO and that there is no recourse against an inordinately long procedure, this also seriously limits what can be revised.
Last but not least, Märpel notes that delays at AT-ILO can be so long so as to render the decision moot. So, it came as a surprise when AT-ILO published judgments 3958 and 3960 last December. The judgments concert Patrick Corcoran, the most prominent member of the boards of appeal at the EPO.
Except that Märpel wonders what would have happened if the judgments had been published just two weeks later. The consequence of the judgments 3958 and 3960 were simply that Mr. Corcoran was reinstated for 2 weeks. The blogs and the press celebrated a victory, because Mr. Corcoran was reinstated. But it was a pyrrhic victory and allowed President Battistelli to exercise retribution as soon as the press was moving on to the next news.
Märpel can only wonder what would have happened if the exact same decision had been given in the next session. Would AT-ILO have decided Mr. Corcoran to be reinstated in his former post and he would then still be at the boards? Would they rather have found out that his contract had run out so there was no possibility of redress? Then the scandal would have been much higher.
The timing of these decision changed everything. Cui bono?
The content of these and further decisions on the same case will be discussed in the next article.
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