In an interview with C&F, Prof. Dr. Siegfried Broß, a former judge at the Federal Constitutional Court, was critical of the European Patent Office (EPO) pointing out that major democratic constitutional deficits and human rights have occurred there. An recent article from the debate magazine Cicero published in March 2018 supports and underscores the expert's statement. The article looks at the consequences of international organizations having legal immunity and lists various cases of arbitrary actions and bullying. The author, Petra Sorge, describes in particular instances of misconduct ate the EPO. Among these is the case where a judge who worked for the EPO Board of Appeal for years fell under suspicion in December 2014 of having leaked internal information and having slandered top personnel at the Office. According to Cicero’s research, the Investigative Unit of the EPO, an intelligence-gathering bod, secretly monitored the judge’s e-mails and PCs and even included uninvolved persons. According to Sorge, the EPO's trace analysis concluded that "numerous e-mails to State officials, Government leaders, journalists or the European Parliament" had been written by the employee, apparently warning of "high-level corruption” and “nepotism”, and a “Balkan affair” involving Battistelli (the still acting EPO president) and Vice President Topic". The employee denied being the author of the mails – but was nevertheless ordered by Battistelli to be suspended on grounds of defamation. The judges of the Enlarged Board of Appeal of the EPO, who declared the orders for dismissal inadmissible, were subjected, according to the research, to massive pressure from Battistelli and threatened with disciplinary measures. "This undermines the basic principle of court independence'', the article quotes from the June 2016 decision of the Enlarged Board of Appeal. The Cicero author summarizes it as follows: "The drama is being played out on a stage without spotlights. A place outside the law, because the immunity of the supranational EPO circumvents any judicial supervision or control".
The article also provides an example of violations of fundamental rights within the EPO: One of the Office's regulations is that "sick people should be at home daily from 10 a.m. to 12 noon and from 2 p.m. to 4 p.m. in case the medical officer comes by. Those who are not at home are threatened with sanctions, including patients with depression or burnout. A Munich lawyer, who is quoted in the article, speaks of violations of fundamental rights concerning "the general right of personality" and "the right to the integrity of one’s home". The needs and rights of family members are also affected.
In addition to the constitutional democratic deficits as a consequence of the concept of immunity, the article also strongly questions the work quality of the EPO. Many EPO patent examiners have supposedly themselves issued warnings that they could no longer ensure the quality of their work. In mid-March, 924 of them wrote an open but anonymous letter that had been notarized to the Administrative Council of the EPO, stating that they were "far too often forced into the dilemma" of either striving for high quality or subjecting themselves to the orders of their superiors. The fear of sanctions is substantial.
Cicero author Petra Sorge describes other disturbing events at the EPO in her article. It becomes clear that even the best research cannot reveal the whole truth in detail. What is certain, however, is that there have been and continue to be enormous distortions at the EPO. The dramatic effects, especially on a human level, put the globally outstanding image of an organization employing almost 7,000 people at risk.
It is obviously high time for proper labor jurisdiction at the EPO. This would not represent any partisanship – much to the contrary. As has been proven many times on a national level, proper labor jurisdiction is the appropriate means of avoiding and resolving conflicts between the parties involved, in this case between the employees and administrators of the EPO, and of preventing future misconduct similar to described above. This should also give the Administrative Council and the individual Member States food for thought. It is difficult to understand why they have so far failed to act.
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