Open Letter of Association of the Members of the BoA (AMBA) to all Stakeholders with an Interest in Maintaining the Boards of Appeal of the EPO as an Independent Judicial Body

In its March meeting, the Administrative Council adopted a resolution requesting the President of the EPO to submit proposals to the Council for immediate implementation of the structural reform of the BoA, inter alia taking into account comments from the Presidium of the BoA.

In the meantime, IPKat reported on two isolated aspects of the still unpublished proposals (cited as CA/43/16), i.e. a substantial increase of the appeal fee and the restriction of post-service employment. It may be assumed that both aspects, although of considerable public interest, are not concerned with the core of the structural reform.

Additionally, AMBA – the Association of the Members of the BoA, raises its voice expressing the concern that the proposals are very wide of the goal to increase the functional independence of the BoA.

AMBA inter alia raises the following objections:
– The delegation of powers by the President of the EPO to the President of the BoA does not exclude intervention by the President of the EPO whenever the latter considers the interests of the Office to be at stake.
– The President of the Office retains his power to propose the appointment of the Chairman of the Enlarged BoA who is at the same time the President of the BoA in whose hands key judicial tasks are placed.
– There is a loss of security of tenure for the members of the BoA because re-appointment is subject to a positive recommendation in the light of unspecified reporting and performance criteria.

AMBA concludes that the proposal in its present form will inevitably result in further challenges before constitutional courts and before the Enlarged BoA.

As to the procedure, AMBA complains that the reform had not proceeded in a way commensurate with the status of the BoA and the user and public interest. There had been a lack of transparency and any meaningful consideration. In particular, the “consultation” of the BoA amounted to no more than discussing their proposals, no aspect of which had been incorporated, and last minute discussion of drafts which had not been changed at all.

Quite apart from the substance of AMBA’s concerns, their intervention shows that the possibilities of interested circles and the public at large to take part in a legislative process and to exercise substantial influence are quite different if national legislation and legislation at the EPO are compared.

A copy of the open letter can be found here.