06 December 2017
Reporter: Barney Dixon

EPO president’s impartiality questioned at ILO

The International Labour Organisation (ILO) has questioned the impartiality of European Patent Office (EPO) president Benoît Battistelli, in two tribunal decisions concerning an EPO employee, and found that there was a conflict of interest on the part of the president.

In December 2014, the employee was suspended for alleged misconduct. Specifically, he was accused of disclosing nonpublic elements of at least one board of appeal case to third parties, disseminating defamatory and threatening messages and material, and storing devices qualifying as weapons in the workplace.

The ILO tribunal said that on the same day as the suspension, Battistelli issued a communication on the office’s intranet, titled ‘Anonymous defamation: EPO staff member apparently involved’.

The defamation was said to be targeted at Battistelli and “it was alleged that the [employee] may have committed misconduct by threatening and insulting the president”.

The employee was suspended with full pay until 31 March 2015 and became subject to a ‘house ban’, blocking his access to EPO premises.

He appealed the decision, asking the EPO’s administrative council to “set aside said decision in its entirety, to lift his suspension, to rescind the house ban imposed upon him, to immediately terminate the investigation against him or, otherwise, transfer the responsibility for any further investigation to an independent and impartial body, or to the jurisdiction of the host state”.

The employee also asked that the administrative council “afford him the right to be heard” and “to exclude the president from any hearing”.

According to ILO, the employee said that the president “[did] not appear to be a neutral and disinterested party, and [had] already made a number of apparently prejudicial statements concerning a pending investigative process”.

He asked that the council reprimand the president.

However, at a meeting on 25 and 26 March 2015, the administrative council decided to reject the employee’s request for review as partially irreceivable and, to the extent it was deemed receivable, as unfounded, based on the president’s opinion contained in a document filed under Article 18(1) of its Rules of Procedure.

The suspension was later extended by the administrative council and the employees salary reduced by half until a final decision had been made in the case.

The employee contested that this was done by means of an alteration to Article 95 of the Service Regulations for permanent employees of the EPO, in which the administrative council “granted itself the power to suspend an employee subject to its authority on reduced or no remuneration for a period of up to 24 months, or longer, before delivering a final decision in the relevant proceeding”.

The ILO tribunal found that “the administrative council’s decision of 17 December 2015, amending Article 95 of the Service Regulations, was also made on a proposal from the president”.

The original version of Article 95(3) of the Service Regulations said that “[a] final decision in the proceedings [suspension] shall be given within four months from the date of suspension. If no decision has been given by the end of this period, the employee shall again receive his full remuneration”.

The amended version of Article 95(3) of the Service Regulations allowed for “[a] final decision in the proceedings [suspension] shall be given within the following period, as from the date of the decision to withhold remuneration: (a) 4 months for those employees whose appointing authority is the president; (b) 24 months for those employees whose appointing authority is the administrative council. This period may be extended in exceptional cases by decision of the administrative council. If no decision has been given by the end of the period specified under (a) or (b), the employee shall again receive his full remuneration.”

ILO said: “The amendment of Article 95 allowed the extension of the complainant’s suspension with reduced pay beyond the four-month term.”

The tribunal noted that Battistelli had been “individually offended” by the alleged misconduct of the employee, and that Battistelli’s “participation in these proceedings has given rise to the unlawfulness of the individual decisions impugned with the tribunal”.

It said: “This situation, by itself, casts doubts on the President’s impartiality.”

The tribunal noted that Battistelli had taken the issue of his alleged bias against the employee into consideration and stated that, according to the council’s rules of procedure, “it is up to the president to prepare an opinion on the request for review for the council”.

He said: “The allegations of bias against the president do not justify derogating from these rules in the present case: in view of the exceptional situation with which the EPO was faced, the president had to communicate both internally and externally. In doing so, he did not cross the boundaries of confidentiality and presumption of innocence.”

But, the ILO tribunal found that “[there] is a conflict of interest on the part of the president.”

It said: “It stems from the fact that the alleged serious misconduct, with which the complainant was charged, might reasonably be thought to have offended the president specifically, directly and individually.”

“This situation, by itself, casts doubts on the president’s impartiality. Considering the whole situation, a reasonable person would think that the president would not bring a detached, impartial mind to the issues involved. The argument raised by the president in his opinion to the council, quoted above, namely that pursuant to the applicable rules the president was acting within his competence and had the power and duty to take all necessary steps to ensure the smooth functioning of the office, is immaterial.

The ILO tribunal said: “The question of a conflict of interest only arises if the official is competent. Accordingly, the question of competency is not an answer to a charge of a conflict of interest.”

“Hence, the administrative council erred in not finding that the president had a conflict of interest in the matter. In this situation, in accordance with the provisions in force, the council should have sent the matter back to the next most senior official to exercise authority instead of the president, who was precluded from exercising authority because of his conflict of interest.”

The tribunal ruled that the employee be immediately reinstated in his former post, and be entitled to an award of material damages in an amount equal to the deductions from his remuneration made as a result of the decision extending his suspension with reduced pay.

The employee is also entitled to an award of “moral damages in the amount of €15,000 euros, and to costs in the amount of €5,000 euros”.

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