Battistelli and Kongstad respond to EPO criticisms
Following the recent unrest at the EPO and last week’s meeting of the Administrative Council, Managing IP asked a series of questions to the EPO President Benoît Battistelli and Chair of the Administrative Council Jesper Kongstad
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 particular the 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 contrary.
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 the Office.
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 improvement.
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 judged?
"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."
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 staff?
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 feedback?
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 exercise.
Does the AC support and have confidence in the President, senior management and roadmaps?
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.