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EPO – EBA complains undue pressure exercised by the President of the Office in proceedings on the request to remove a member of the Boards of Appeal from office

24 Jun 2016

EPO, Art. 23 1/16, EBA, decision of 14 Juni 2016 – Request for removal from office, to be published

IPKat published the EBA’s decision in the proceedings in which oral proceedings were held on June 14, 2016 at the end of which the Chair made a statement already indicating that the EBA terminated the proceedings with the decision that it does not propose the removal from office of the member concerned. This is repeated in the order of the written decision and the catchword of the decision reads:

For the Enlarged Board to be able to continue with these proceedings the position of the Petitioner (i.e: the Administrative Council) would have to be that it did not agree with the Office President and acknowledged that, from an institutional point of view, the pressure exercised by the Office President in the present case was incompatible with the judicial independence of the Enlarged Board guaranteed by the EPC. As the Petitioner did not clearly distance itself from the Office President’s position, there is the threat of disciplinary measures against the members of the Enlarged Board. It is then the Enlarged Board’s judicial independence in deciding on this case which is fundamentally denied. 
The case is already spectacular enough but it contains a core element which is important far beyond the individual case. Pending this case, the Council amended the Service Regulation extending the period within which a Board member can be suspended by a provisional measure. According to the EBA, this amounts to a de facto removal without a proposal by the EBA as required under Article 23(1) EPC.

The question had been raised in previous oral proceedings but so far the members of the EBA had considered this as a general, abstract threat. This had changed as a consequence of a letter of the President objecting to oral proceedings to be held in public and witnesses from the Investigation Unit be heard. The letter denies any investigative power and fact finding mandate of the EBA  and continues as follows:

“23. With that in mind, the President will not, we are also instructed, hesitate to take any appropriate steps available to him to ensure the orderly running of the Office and the safety of its employees.”

“27. In view, in particular, of the gravity of the reputational, security, welfare and public order risks identified, there is a strong case for saying that any decision to conduct this hearing in public would be unlawful because it could not be defended as either proportionate or reasonable.”

“28. For all these reasons, the President deems it necessary in the interests of the whole Organisation that there is an assurance that this matter will proceed in camera and that no witnesses will be called from the Office.” 

The EBA explains why it used its discretion to hold oral proceedings in public, i.e. the request made by the respondent (the Board member), the fact that the Office had sought publicity for its point of view and the interest in a transparent procedure resulting therefrom.

The EBA notes that the pending case has shown that the President assumes the power to investigate and to suspend members of the Boards of Appeal and bar them from office and that he may also propose any other disciplinary measures to the Council, pursuant to Article 10(2)(h) EPC.

Under these circumstances, all members of the Board felt themselves threatened with disciplinary measures if they continued with the proceedings in the presence of the public, and sought to determine the facts of the case. Thus, the EBA concluded that its independence was only safeguarded if the Council as the appointing and disciplinary authority distanced itself from the position of the President.

During the oral proceedings, the President of the Council was contacted and made the following remarks:
… Such a communication does not emanate from a party to the proceedings. In view of the fact that the Administrative Council is only represented in the proceedings pursuant to Article 12a (2) of the Rules of Procedure of the EBA, it cannot take position on a communication from the Executive Head of the Office.

In this respect, and as per Article 23(3) EPC, the EBA members are not bound by any instruction but must abide by the provisions of the EPC. This cannot be prejudicial to them, bearing in mind that the Council is the sole competent disciplinary authority for them. …

Eventually, the EBA concluded that it was reduced to two alternatives:

– either to take an “unlawful decision”;
– or,
to take a “lawful decision” according to the demands of the Office President, i.e. setting aside its decision on the public oral proceedings and taking as granted the facts established in the IU Report and/or the DC’s opinion. 
In either case, the respective decision would be inherently vitiated because it would have been made under pressure from the executive and without the serenity and independence needed for a fair trial.

There is nothing to add to the EBA’s conclusion and it remains to be seen what the effect of the President’s intervention and the EBA’s reaction will have on the discussion in the Council next week of the still unpublished proposals of the President for a structural reform of the Boards of Appeal. The association of the members of the Boards of Appeal (AMBA) has already published its conclusion in an open letter: better no reform than accepting the President’s proposals (see post dated June, 13, 2016).

A copy of decision Art. 23 1/16 EBA can be found here.