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EPO – Structural Reform of the BoA of the EPO / Post retirement restrictions

04 Jul 2016

Structural Reform of the Boards of Appeal of the EPO, Post-retirement restrictions for Board members

Whereas the decisions of the Administrative Council on the structural reform of the Boards of Appeal (BOA) are not yet published on the EPO’s website, the blogs have made available after doc. CA/43/16 Rev. 1 (see post dated July 1, 2016) also doc. CA/29/16 Rev. 1. on “Post service integrity – prevention of conflicts of interest”. In contrast to the previous proposal, post-retirement restrictions apply only to Board members and not to other staff like examiners. The essential provision is Article 19 (2) of the Service Regulations as revised, reading:

A … former member of the Boards intending to engage in an occupational activity, whether gainful or not, within two years of leaving the service shall inform the
Administrative Council thereof. If that activity is related to the work he carried out during the last three years of his service and could lead to a conflict with the integrity of the EPO’s appeal system, the Administrative Council may, having regard to his interests and to those of the EPO’s appeal system, either forbid him from undertaking it or give its approval subject to any conditions it thinks fit.

The first question might be whether post-service loyalty justifies the information on any occupation, e.g. as a member of a choir or as member of a county council. However, more important is the scope of possible exclusions. One of the explanations given is that a user of the EPO’s appeal system might gain an unfair advantage over competitors with the assistance of a former Board member’s inside information.

This leaves room for broad interpretation. Since the activity in a Board of Appeal may be regarded as a valuable experience in a professional’s CV, one may argue that a law firm enjoys an advantage employing such a person. Thus, the provision might be used to justify a practice not allowing a former Board member to act as authorized representative in the technical field of his former Board, even if he does not intend to act in proceedings before this Board.

This might be a justifiable balance for a Board member having served on a lifetime appointment until retirement. However, for a Board member not re-appointed after a single appointment period of five years, the situation is quite different. He may be forced to find a new appointment quickly and for him a ban from the profession for two years without compensation might appear as an intolerable risk.

Thus, the new provision may, in combination with the re-appointment system based on achievement, deter outside candidates for the Boards of Appeal, at least as long as there lacks experience or more detailed guidance how the provision is applied in practice.

A copy of doc. CA/29/16 Rev. 1 can be read here.

A comparison between existing and new text can be read here.