RESOLUTION ADOPTED BY THE ADMINISTRATIVE COUNCIL ON 16 MARCH 2016
in its capacity as supervisory organ of the EPOrg
- having repeatedly expressed its deep concerns about the social unrest within the EPOffice;
- having repeatedly urged the EPOffice President and the trade unions to reach a consensus on an MOU which would establish a framework for negotiation between social partners;
- noting that disciplinary sanctions and proceedings against staff or trade union representatives have, among other reasons, made it more difficult to reach such a consensus;
- noting that these disciplinary sanctions and proceedings are widely being questioned in the public opinion; recalling the importance and the urgency of the structural reform of the BOA;
- recognizing the important institutional role of the AC and its dependence on a well-resourced and independent secretariat;
Calls on both parties to the social dialogue to recognize their responsibilities and to work diligently and in good faith to find a way forward, and:
Requests the EPOffice President
- to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediation
- pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions;
- to submit to the AC a draft revision of the Staff Regulations which incorporates investigation guidelines (including the investigation unit) and disciplinary procedures which have been reviewed and amended;
- to achieve, within the framework of the tripartite negotiations, an MOU simultaneously with both trade unions, which would have no pre-conditions or exclude any topics from future discussions;
- to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for immediate implementation of the structural reform of the BOA, on the lines of the 5 points agreed by the AC at its December 2015 meeting and of the legal advice given by Prof. Sarooshi, and taking into account comments from the Presidium of the BOA;
Requests the staff representation and the Trade Unions
- to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for reinforcement of the AC secretariat and a clarification of its position in terms of governance.
- to acknowledge the importance of firm and fair disciplinary procedures; and
- to respond constructively to the initiatives set out above, in particular to work rapidly to an agreement on Union recognition without preconditions.
This is a strong call to order, I would say, but only a "last chance" in June 2016 with no factual progress whatsoever. While the social situation, the disciplinary issues and the reform of the BoA have been widely discussed, there appears to be a further issue with the staffing and resources of the AC secretariat and the clarification of its role.
This blogger does not have any knowledge about 5 points agreed by the AC at its December 2015 meeting and of the legal advice given by Prof. Sarooshi. If any reader knows more about this, we would be pleased to share this information.
A separate report on the 19th meeting of the select committee will be published on the EPO website within short.
Michael, you made me sad when you wrote of the AC's utterance that it is
".......to increase pressure onto the parties to resolve the situation"
Does the AC then think that what is most needed now is to "increase pressure" on those working at the EPO?
Sorry for the misunderstanding.
The parties in the social dialogue are the president and SUEPO and pressure on them to finally sit on the same table and come to a reasonable solution is increased. As always, both parties blame the respectively other one for the disaster and, as we say, it takes always two to argue. However, comparing the length of the lists of "requests" it is clear that the president experiences the highest increase in pressure in this case.
I do not at all think that the pressure onto examiners in terms of production numbers should be increased. Rather to the contrary.
Some of the demands of the President have been watered down from the leaked draft (for example, now asking him only to "consider the possibility" of invoking an external review of disciplinary proceedings - to which he will no doubt say "I have considered it, and my answer is NO"). And the demands made by the AC for action from the unions and staff representation are new.
Nevertheless, it appears to me that this puts Battistelli in a very tight spot indeed and if one reads between the lines it seems clear that the AC is tending to side more with the staff.
The previously-leaked draft included in one of its recitals:
"noting without taking position on the justification of these disciplinary sanctions and proceedings, that they are widely questioned"
The same recital in the adopted resolution now simply states:
"noting that these disciplinary sanctions and proceedings are widely being questioned in the public opinion"
Does this mean that the AC does, indeed, now "take a position"? If so I think we can see what that position might be, and it's not in Battistelli's favour.
The requirement of the President "before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions" is also newly added and appears to severely constrain Battistelli's freedom of movement in any further disciplinary proceedings against the staff.
The only two requirements made of the staff appear to be very soft. Indeed, SUEPO and the staff representation would probably be justified in saying that they do recognise the importance of firm and fair disciplinary procedures - what they question is the apparent abuse and unfairness of such procedures under the current regime. And I am sure they will respond constructively, as indeed they appear to have done every step of the way so far.
Overall, therefore, a fairly big victory for the staff, I would say. Battistelli is not gone yet, but the Communique appears to be a very strong warning shot in his direction from the AC.
The AC also requests the President
to submit proposals to the AC at its June 2016 meeting, after discussion in B28, for immediate implementation of the structural reform of the BOA, on the lines of the 5 points agreed by the AC at its December 2015 meeting and of the legal advice given by Prof. Sarooshi, and taking into account comments from the Presidium of the BOA
This looks to me as though they have told him exactly what they think the content of those proposals should be. I do not know what is in the 5 points or in the legal advice from Prof. Sarooshi, but this seems on its face to be a very precisely delineated set of expectations. And the AC appears to have seen through Battistelli's attempts to brush aside the concerns of the Presidium. "Taking into account" is not the strongest request possible, but if he decides not to adopt the proposals of the Presidium he will surely have to justify to the AC why he has decided against such adoption. And the use of "immediate" as the timescale shows the AC's patience is running out.
The June AC meeting appears to be High Noon for BB.
No misunderstanding Michael. I was just thinking of the pressure on those EPO workers who might contemplate trying to serve their fellow workers by sitting on the opposite side of the negotiating table from BB and his coterie of enforcers.
What might be the consequences? You have to worry, especially if you have a family of young children, that the consequence might be loss of job and pension rights. What is the AC doing about this "pressure" on would-be Union representatives?
BB can get rid of troublesome employees any time he pleases. The AC, as owner of the firm, could get rid of its troublesome CEO employee if it had the stomach to do so. But manifestly it has no stomach for that. BB knows it, and laughs at them, if not openly then surely behind his hand.
I feel that there is a certain difference between employment and public function which might be a reason for some confusion around. It is difficult to see in which category the EPO staff falls.
While it goes without saying that both categories are entitled to fair and transparent proceedings in disciplinary matters according to the ECHR, this is not so clear when it comes to strike regulations and the role of unions. Some European jurisdictions consider the right to strike to be a fundamental human right, others do not. German public officials do not have a right to strike and this is considered to comply with the fundamental rights. It follows that they do not have any "unions" entering in negotiations on the working conditions. Other jurisdictions have a different view.
Should officials entrusted with a statutory monopole to perform public functions (examining patents) really be entitled to withhold these services from the public in the aim of increasing their salaries?
Interesting note on the reform proposal:
The communiqué on the December AC meeting (146th) says:
"It mandated its Board 28 to elaborate guidelines to serve as a basis to the President for the drafting of concrete proposals to be submitted for decision to the Council possibly at its March 2016 meeting." (emphasis added)
The last communiqué says:
"The Council noted information provided by the Office on the envisaged structural reform of the EPO Boards of Appeal."
I presume that the "5 points" are part of the "guidelines" and what the President was not considered a concrete proposal but only information which was noted (and not even discussed?)
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