During the past month, the EPO has seen a series of strikes
and demonstrations by staff, many of whom have expressed
concerns about the leadership of the Office (see in
coverage and comments on the IP Kat blog).
In addition, the suspension of a
member of the Boards of Appeal for disciplinary reasons led to
criticisms being raised by staff, judges and patent
practitioners. Battistelli responded in an
interview in Managing IP last week.
Following its meeting last week,
the Administrative Council published a
statement addressing some of these criticisms. However,
following discussions with various stakeholders, Managing IP
felt there were more questions to be asked of both the
president and the Council and therefore sent a number of
questions to Battistelli and Kongstad.
They responded in writing and we
print their answers here in full.
Have you (President and/or
AC) had any direct contact (eg, meetings) with the staff
representatives or unions regarding their concerns? Do you plan
to do so?
JK: As AC Chair, I have
regular contacts with the staff representatives. As you know,
under their observer status, they participate to the AC
meetings and are given the floor regularly to express their
opinions and present their positions to the Council members.
These contacts are conducted in full respect with the
repartition of responsibilities between the AC, which has the
power to adopt the decisions (3/4 majority for those
necessitating a change of the staff regulation) and to monitor
their implementation, and the President of the Office who has
the full executive competence to manage the Office and to
submit proposals to the AC.
BB: There are numerous
meetings with the staff representation at different levels at
the Office. The General Consultative Committee, composed of the
ten members of the Central Staff Committee and the top
management, is our highest parity body where all projects
affecting working conditions are discussed. It has been the
case for all the reforms that have been implemented since the
beginning of my Presidency. As I have regularly stated, my door
is always open for a real and effective social dialogue,
respecting the interlocutors. But to dialogue you need to be
two. Just an example of our difficulties: it is not easy to
understand that each session of the GCC starts with a statement
from the staff representation denying the four EPO
Vice-Presidents the right to participate to the discussion
because they are all under the contract regime and not in the
permanent status. In many entities staff representatives
complain not to have the opportunity to discuss directly with
the senior management, at the EPO it seems to be the
How do you respond to
allegations made in Munich and online that there is a "reign of
terror" at the EPO?
JK: How can people imagine
that the representatives of 38 European governments,
democratically elected, could accept such situation if it would
exist? The EPO has been created by a treaty which has been
ratified by 38 national parliaments. This treaty is very
precise concerning the duties and obligations of the management
of the Office and specifically its President. All decisions
concerning working conditions and the staff regulations are
taken by the Council and require a ¾ majority. The
Council receives each year an extensive report made by an
independent Board of Auditors which scrutinize the management
of the Office and especially the Human Resources policies and
the social relations. Since Mr Battistelli is President, there
has been no negative remark from this Board of Auditors
concerning the management of the Office.
BB: I consider we have to
be a little bit serious and think twice before using such
expression. It is not only totally absurd but also outrageous.
It is absurd because it corresponds to nothing close to the
reality of the EPO. It is outrageous when you think about the
people who are suffering under such regimes in some countries
nowadays or have deeply suffered on our own continent only few
decades ago. To dare to compare the EPO with such regimes is a
total lack of respect for those victims.
The AC is fully and regularly
informed of what is happening in the Office: four oral
activities reports and two written ones, each of them being
followed by a debate. During those last four years, the AC has
been, often unanimously, fully supportive to the management of
Does the EPO recognise
international standards on human rights and
workers’ rights? Is this enshrined anywhere and/or
can you cite laws that are followed?
JK: All draft decisions
presented to the AC for adoption must follow beforehand an
in-depth examination process where the proposals from the
Office will be scrutinized under different angles (financial,
legal, technical) by specific committees of representatives
from the 38 member states. Each country has its own process but
it is often the case that the position expressed by one
representative represents the outcome of an inter-ministerial
coordination at national level. There is absolutely no doubt
that any proposal that would not fit with any international
standards on human rights and worker rights would never have a
chance to go through our process.
BB: EPO respects all
principles on human rights and worker rights and applies the
best possible international standards. This principles and
standards are enshrined in the European Patent Convention, a
treaty as you know which has been ratified by 38 National
Parliaments, and in our codex of staff regulations (1200 pages)
which have been adopted by the AC. To give you recent examples
of the continuous adaptations and improvements of our social
framework, I have proposed to the AC, which has approved it, to
formally recognise the right to strike to EPO staff members and
to define the legal modalities to exercise this right. I have
also proposed, which has also been approved by the AC, to
organise direct elections by all staff members of their
representatives. This first election took place last June with
a participation rate of 70%. This is a real democratic
SUEPO officials say they
cannot speak out about their concerns because they risk losing
their jobs. How do you respond to this?
BB: The freedom of
expression is fully recognised and respected at the EPO. For
example, SUEPO and the staff representation benefit each one
from a dedicate part of the EPO Intranet, available to all
staff members and where they can publish whatever they want. We
have even put in place a RSS feed system to facilitate the
immediate circulation of information. They also regularly
distribute leaflets and organise information meetings within
EPO’s premises. Of course, each one must be
accountable for its public positions. And each one has to
respect the rules of law like in any democracy.
You plan to move to
performance-related pay for staff. How will performance be
"The performance will be judged by
comparing the yearly achievements and the original set of
targets which will have been commonly discussed between each
employee and his/her line manager at the beginning of the
BB: We are not reinventing the wheel and as a serious
patent office, we have simply looked for some prior art. During
the AC debates last week, some delegations told us that they
have already put the same system in place 10 years ago and that
it is high time for the EPO to move forward and to base
promotion and career on performance and not any longer on
seniority and time spent at the Office. The performance will be
judged by comparing the yearly achievements and the original
set of targets which will have been commonly discussed between
each employee and his/her line manager at the beginning of the
year. These targets will comprise specific individual and
collective quality objectives. There will be collective and
managerial processes to ensure harmonisation in the
implementation of the new rules office-wide.
Why do you think these
proposals have led to such strong opposition among
BB: if by "strong
opposition", you mean the strikers, I would invite you to look
at the figures we published in full transparency on our
website. The peak on 20.11.14 was 30.66% full day and 6.13%
half day strike. The average for the other days is less than
10% (full and half day included). A large majority of the staff
understands the need of those social reforms in order to ensure
the long term sustainability of the Office. I remind you that
we are a self-financed organisation, including for our long
term liabilities (pensions).
When you are making major reforms,
like the one on career and promotion, it is natural that people
express resistance to change and their preoccupation in front
of new rules. This is why we have prepared this reform during
more than one year and involved at different levels staff,
managers, and staff representatives. We have created dedicated
intranet site and Q&A (more than 100 pages). Clearly we
have to continue these explanations. But I am confident that
the implementation will be successful already in 2015. Indeed,
I have also received some very positive feedback by staff
members, administrative employees in particular, who will no
longer be blocked in their progression by our too rigid
administrative categories as we are going to implement a single
spine career system. Others appreciate the creation of a
"technical" career alongside with the managerial one. Many
consider that the new system will be fairer as those who work
more and better will progress quicker.
Are the HR proposals final
or could they be modified in response to constructive
JK: when decisions are
presented to the AC for adoption, they are supposed to be solid
and have followed a sound internal preparation process. Then
the debate will take place within the governing bodies of the
Organisation and it is always possible to suggest amendments.
It has been recently the case with the new method for the
salary adjustments adopted last June: after the feedback
received during the Budget and Finance Committee and AC, the
Office adapted its original proposal. It shows how sound and
democratic our processes are.
BB: HR proposals are
presented to the Administrative Council for decision after a
long internal process, including the staff representation
consultation. Of course, constructive feedback is welcomed
during this process. For the career system for example, it took
18 months from the initial discussion until the AC decision.
Moreover, the implementation of our HR policies is subject to a
regular review by our Board of Auditors, a totally independent
body. Following my proposal, their report is now published and
available on our website.
Some people have suggested
that the Boards of Appeal should be completely independent of
the Office. What do you think of this proposal?
"In almost 40 years, since the creation of
the Office, no issue has ever been reported questioning the
independence of a decision taken by the BoAs."
JK: The EPC has created, within the Office, Boards of
Appeals which are completely independent in their judiciary
activity. Their members remain obviously under the Staff
regulations in terms of their administrative position. It has
foreseen that for the members of those Board of Appeals the AC
is the appointing and disciplinary authority. In almost 40
years, since the creation of the Office, no issue has ever been
reported questioning the independence of a decision taken by
the BoAs. The President of the Office and myself with all the
members of the AC are fully dedicated to maintain this
institutional balance which has been enshrined in the EPC. And
we can be proud of the high reputation which the BoAs are
enjoying. Of course, different institutional solutions could
always be imagined. The idea of a fully separate entity has
already been discussed in 1995 and 2004 but never materialized.
We have also to take into consideration the decision taken by
25 EU member states to create after decades of discussions
another institution dealing with patent litigation, the UPC.
Following a decision taken by the Enlarged Board of Appeals
last spring, the AC is reflecting on ways to improve the
organisation and the functioning of the BoAs. This issue will
be on the agenda of our next meeting. Let me emphasize at this
juncture that the Contracting states put the highest value on
the judiciary independence of the BoAs.
Are there any plans to
host a diplomatic conference of EPC member state ministers (as
required every five years under Article 4a EPC)?
JK: There is no plan to
call for a diplomatic conference nor a conference of ministers
because there is currently no substance to be really addressed
at ministerial level in the view of the Contracting states.
This provision was originally thought mainly in the view of two
projects which were discussed at that time – the
Community Patent and the EPLA – and would have
required a modification of the EPC. They have been replaced by
the UPP and the UPC whose implementation do not need such
Does the AC support and
have confidence in the President, senior management and
JK: The President of the
Office needs a ¾ majority to be elected and eventually
extended. During the last four years President Battistelli has
proposed a Quality and Efficiency strategy translated in five
specific roadmaps (IT, HR, Building, Quality, Cooperation)
which have been unanimously approved by the AC. The results of
this policy are regularly monitored by the AC. Updated versions
of these roadmaps with first results already achieved have been
unanimously approved by the AC last June. The AC also decided
at a very large majority, the extension for three years of
President Battistelli’s mandate in order to
finalise the implementation of this strategy.
The AC is clearly fully supportive
and I think it is fair to say that the confidence in the
President is very high.
Does the current unrest
jeopardise in any way the functioning of the Office or the
preparations for the Unitary Patent?
BB: Again, look at the facts and figures. In spite of
this social tension, 2014 has been a very positive year for the
Office. We have enjoyed a strong production (+ 2% compared to
the previous year), our quality is internationally recognised
and we are the first Office among the IP5 to have obtained the
ISO9001 certification for our entire patent granting process.
Concerning the Unitary Patent, the Select Committee with the
support of the Office has advanced remarkably well in the
preparatory work (adoption of implementing and procedural
rules). The member states have been provided with extensive
data, scenarii and modelisations in order to be able to decide
on fees by June 2015. The relations with the new Commission and
the newly elected Parliament are promising. My feeling is that
everything is on track and the first unitary patent could be
delivered by the EPO in 2016.