On its website, the European Patent Office has published a "communiqué" concerning this week's meeting of the Administrative Council (AC) of the European Patent Organisation (the international body running the EPO) that contains a sybilline sentence on the suspension of an EPO-internal judge (member of a board of appeal) for disciplinary reasons. The suspension was widely criticized, including but not limited to a letter by (internal) members of the Enlarged Board of Appeal (EBA) to the AC, a letter by two external EBA members, Lord Justice Floyd and high-ranking Dutch court official Robert van Peursem, which was subsequently endorsed by leading patent judges from six other countries, and an email sent by a German patent litigator to his country's AC member.
The aforementioned sybilline sentence is at the end of a paragraph that says the AC "unanimously decided to suspend [the judge in question] from active duty on full salary until 31 March 2015" and will take further decisions after completion of the investigation:
"The [Administrative] Council expressed its concern at an incident unique in the history of EPO."
If this sentence explicitly mentioned a reprimand of President Battistelli for compromising judicial independence, its meaning and its significance would be clear. However, "an incident unique in the history of the EPO" is vague enough that this could also mean unanimous backing of the executive's action and concern over whatever the suspended judge may have done. That interpretation is less likely to be correct than disagreement with the way the executive leadership handled the matter, but it can't be ruled out completely in light of the unanimous endorsement of the suspension.
Let's take a look at the third paragraph:
"The Council took this opportunity to reiterate its full endorsement of and support for the principle of independence of the members of the Boards of Appeal, as specifically set out in Article 23 EPC and generally embodied in internationally recognised principles of judicial independence."
Article 23 EPC is very clear:
(1) The members of the Enlarged Board of Appeal and of the Boards of Appeal shall be appointed for a term of five years and may not be removed from office during this term, except if there are serious grounds for such removal and if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect.
(emphasis obviously added)
Still, what's really missing from the communique is an unequivocal condemnation of the fact that a judge was indeed removed from office without an EBA proposal, let alone a Council decision.
There's a part I don't understand, at least not without further explanation. In the very same communiqué, the Council emphasizes Article 23 EPC and announces a unanimous suspension decision. Article 23(1) allows a removal from office of a judge only "if the Administrative Council, on a proposal from the Enlarged Board of Appeal, takes a decision to this effect." (emphasis added)
The letter from the Enlarged Board of Appeal to the Council, however, contains no indication whatsoever that the EBA proposed such a removal from office. If anything, it suggests the opposite.
The EBA letter refers to other articles, and Art. 10(h) allows the president to propose disciplinary action to the AC, which then decides under Art. 11(4). In this case, the suspension quite apparently occurred before the AC decided. So for the time between the suspension taking effect and the AC endorsing it, it appears to me that the removal from office had no legal basis whatsoever--at least none that I'm aware of.
But if this is all about Articles 10 and 11, why does the AC emphasize Rule 23? The standard under Rule 23 is higher: it takes (besides a factual basis) an EBA proposal and a Council vote, not just a presidential proposal and a Council vote. Is this an attempt to mislead the general public? Or did they just want to avoid any direct references to the article(s) the president violated?
In my opinion, the Rule 23 standard is the right one and even the combination of Articles 10 and 11 is too low a standard. But even that lower standard apparently wasn't met.
Officials have been forced to resign over smaller things than this. But in politics it's not unusual at all that those who appoint someone stand by the appointee for as long as possible, hoping that the storm will subside. If it doesn't, they can still take further action. The AC definitely keeps an important door open. If they want to sack Battistelli, they can do so whenever the investigation has been completed and it turns out that apart from the president acting ultra vires, the alleged misconduct by the suspended judge fell clearly short of anything that would justify a removal from office even if the proper procedures had been followed.
All in all, despite the unanimous endorsement of the suspension and my disappointment over it, I tend to see a significant crack in the shell here. The next few weeks and months will prove decisive. For now, Battistelli remains in office. But for how long is uncertain.
Coverage of this scandal in the general press will also play a key role. I heard that a Munich area center-right newspaper, Münchner Merkur, published an article in yesterday's print edition, entitled "Die letzte Diktatur auf deutschem Boden" ("the sole remaining dictatorship on German soil"). Things can't stay that way forever. The AC's "communiqué" should be interpreted by the IP sector and by innovative companies depending on high-quality patents (I heard from an unofficial source that a compensation scheme with potentially disastrous implications for European patent quality was approved yesterday) as an invitation to push even harder for serious reform. It shows that all these recent efforts, by EPO staff and by others, didn't go unnoticed, but they will one day have been in vain unless there's even more pressure now.
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