Bonum Certa Men Certa

Letter Warns of “Reform Marathon” a Few Days Before Benoît Battistelli's Job is Offered to Someone Else

Will the final 'reform' keep him in power?

Opinion: Putin is in charge
A monarchy's modus operandi



Summary: New letter states that "although the AC pressurised the president to halt the reform process, the Office is unilaterally proposing further reforms"

THE STAFF of the EPO is very eager to be heard, but it cannot speak out without threat of retribution. Published this week was the following letter, which warns about Battistelli's plans. It's a letter we were allowed to circulate here (original at epostaff4rights.org).








€ 

Reform marathon

continues

With its March 2016 resolution1, the Administrative Council (AC), among other things, instructed the president to make a proposal for revising the investigation guidelines and the disciplinary procedures. Since then, the president has failed several times to provide a draft revision that met the expectations of the delegations. Several delegations intervened and came up with own suggestions2. While the current proposal (CA/58/17) solves some of the issues, it is still flawed. The major concern for staff lies in a lack of independence of the Disciplinary and Appeals Committees and a new fast-track procedure for judging on employee’s professional incompetence. Board 28 nevertheless signalled that they intend to support the proposal3.

And although the AC pressurised the president to halt the reform process, the Office is unilaterally proposing further reforms: a re-structuring of DG1 and DG2 (CA/65/17), and a change to the Supervisory Body of the Reserve Fund for Pension and Social Security(RFPSS).

This paper summarises the most important aspects of the planned reforms and points out the likely effects on the staff.



Standards of conduct

According to the planned reform (CA/58/17), any failure of a permanent or former employee to comply with his obligations under the Service Regulations, “whether intentionally or through negligence on his part”, may constitute misconduct (Article 21) and may make him liable to disciplinary action (Article 93). The original proposal from the “Swiss wish list” that only intentional or grossly negligent breaches of the Service Regulations should be relevant for disciplinary proceedings has not found its way into the current proposal. The current wording leaves leeway for arbitrary use of the regulation and abusive punishment.

Disciplinary and Appeals Committees

The chairman of the Disciplinary Committee (Article 97a) and the Appeals Committee (Article 111) and their alternate or vice-chairs shall “possess the qualifications required for appointment to high judicial office“ or be “lawyers with experience in the area of disciplinary law acquired at national or international level”, and they shall not be employees of the Office.

But unlike in the present system, the chair and their alternate or vice-chairs would be unilaterally appointed by the president4. The Disciplinary and Appeals Committees would therefore not be entirely paritary and thus not be independent. Moreover, the president’s final decision, i.e. the punishment imposed, may still exceed the Committee’s recommendation.5

Professional incompetence

The planned reform foresees a separation of the procedures for disciplinary matters and professional incompetence. According to the Office, “professional incompetence does not constitute per se misconduct” and the Disciplinary Committee is, for this reason, not the appropriate body to address it (CA/58/17, page 11). For dealing with professional incompetence, a new body called Joint Committee on Articles 52 and 53 will be created. The chair and alternate of the Joint Committee will be appointed by the president (Article 53a).

According to the proposed revised Article 52 “the President shall define procedures to identify, deal with and remedy cases of lack of ability and efficiency in a timely and appropriate fashion.” When these procedures are exhausted, the president may, after consulting the Joint Committee on Articles 52 and 53 take a decision on whether, on the basis of (two or more) consecutive appraisal reports, an employee shall be “dismissed, classified in a lower job group with or without downgrading or downgraded” on grounds of professional incompetence.

The new route for dealing with lack of “professional ability and efficiency” would significantly reduce the safeguards for staff.5

Investigative process

While progress has been made on the right to remain silent, the Investigative Unit (IU) will still be able to secure, access and search mobile electronic devices, including private ones.

And several other items of the “Swiss wish list” (i.e. demands of the Council) have not been dealt with: nomination of the head of the IU by the AC to secure his independence from the Office president, and duty of the IU to inform the Council when investigations are launched against staff representatives or union representatives.

Revision of presidential decisions

After exhaustion of all internal means of legal redress, (former) employees can apply to the Administrative Tribunal of the International Labour Organisation (AT-ILO).

But the ILO as the highest instance for disputes between the EPO and its employees does not hold public hearings, has no means of legal enforcement, and does not allow the filing of injunctions6. Judgments are only delivered after several years.

Worse, the ILO had several bilateral talks with the EPO administration - a party in the dispute - without informing or inviting representatives of the employees6,7.

Siegfried Broß, a former judge at the German Federal Court of Justice (DE) and later at the German Federal Constitutional Court, recently said during a lecture8 that “The legitimate, individual basic rights of the people employed by the EPO are currently not sufficiently secured by an independent judiciary.9 He does not consider the Administrative Tribunal of the ILO a “proper court9.

Change of the governance of the Reserve Fund for Pension and Social Security (RFPSS)

The payment of pensions of former EPO staff is guaranteed by the Member States. The Pension Reserve Fund supports the EPO’s pension scheme by providing appropriate reserves (Article 38 EPC).

To avoid undue interference, the RFPSS was set up in 1991 with the aim of obtaining a de facto independent reserve fund. It therefore has a tripartite Supervisory Board (SB) with a paritary composition of representatives from the Member States, the Office and the staff (1/3-1/3-1/3). It is the only EPO body where representatives of the Office and of the staff play an equal part in decision making.

The current poposal (CA/47/17 Rev 2) will mean replacing one of the two voting staff members in the SB with a pensioners’ representative, and adding two experts with voting rights. If the proposal gets approval, the staff’s voting weight would be reduced from 1/3 to 1/8, and its representation in the Board’s meetings would be diluted to at best 1/10. The influence of the Office would be strengthened since the AC would appoint the experts based on a proposal by the president.

The representation of the stakeholders in the Board would no longer be paritary. The current proposal, if adopted, would thus weaken the independence of the SB and violate the principle of “fair representation”. The CSC considers the proposal to be “neither mature nor fit for purpose10.

DG1-DG2 reorganisation

The aim of merging Patent Administration (PA) with patent examination is to achieve a “fully digitalised end-to-end [patent grant] process in the short term“ (CA/65/17, page 2). But the necessary deliveries from the IT Roadmap have not yet materialised.

The likely effects of the thus premature DG1-DG2 reform have been analysed in an earlier publication11, and can be summarised as follows:

The planned “end-to-end patent granting process”, if implemented, is likely to have a negative effect on the quality and harmonisation of PA services delivered to external users, while increasing the work pressure for the majority of the formalities officers.

The introduction of a direct reporting line between the new COOs and the president would give him even more control over the patent examination process while marginalising the role of VP1 and VP2. This planned organisational change respects the wording of Rule 9 EPC but conflicts with its spirit.



Enjoying power - and not being accountable if anything goes wrong

"We believe that the President is simply trying to shift the responsibility for these new, flawed proposals from himself to the Council," the [CSC] letter warns. ’4

Staff voted last week for strike in great numbers. We must keep the pressure up and show the Administration and the Council that we are fed up: through a strong strike.



www.epostaff4rights.org



2eg the so-called “Swiss wish list” containing proposals of the Swiss delegation (Minutes of the 149th meeting of the AC, 12 and 13 October 2016; CA/PV 149) and the joint proposal CA/32/17 (by FR, DE, NL and CH)



3B28/6/17 “The majority sentiment was that … the proposals were now ripe for decision



5 Reform of the EPO justice system (CA/58/17); sc17098cl (16 june 2017)



6ILO-AT: 90 years old and in need of repair; su17040cp (3 May 2017)



8titled “The Patent Granting Practice under the EPC – Erosion of the Rule of Law?” (at Max Planck Institute for Innovation and Competition, Munich)



10Position of the Staff on CA/47/17 Rev 2 – Change of the RFPSS Governance; sc17096cl (16 June 2017)



11EPO-FLIER No. 30 “DG1-DG2 Reorganisation” (www.epostaff4rights.org)



Recent Techrights' Posts

IBM Culling Workers or Pushing Them Out (So That It's Not Framed as Layoffs), Red Hat Mentioned Repeatedly Only Hours Ago
We all know what "reorg" means in the C-suite
Free Software Foundation Subpoenaed by Serial GPL Infringers
These attacks on software freedom are subsidised by serial GPL infringers
Publicly Posting in Social Control Media About Oneself Makes It Public Information
sheer hypocrisy on privacy is evident in the Debian mailing lists
 
Embrace, Extend, Replace the Original (Or Just Hijack the Word 'Sudo')
First comment? A Microsoft employee
Gemini Links 02/05/2024: Firewall Rules Etiquette and Self Host All The Things
Links for the day
Red Hat/IBM Crybullies, GNOME Foundation Bankruptcy, and Microsoft Moles (Operatives) Inside Debian
reminder of the dangers of Microsoft moles inside Debian
PsyOps 007: Paul Tagliamonte wanted Debian Press Team to have license to kill
Reprinted with permission from disguised.work
IBM Raleigh Layoffs (Home of Red Hat)
The former CEO left the company exactly a month ago
Paul R. Tagliamonte, the Pentagon and backstabbing Jacob Appelbaum, part B
Reprinted with permission from disguised.work
Links 01/05/2024: Surveillance and Hadopi, Russia Clones Wikipedia
Links for the day
Links 01/05/2024: FCC Takes on Illegal Data Sharing, Google Layoffs Expand
Links for the day
Links 01/05/2024: Calendaring, Spring Idleness, and Ads
Links for the day
Paul Tagliamonte & Debian: White House, Pentagon, USDS and anti-RMS mob ringleader
Reprinted with permission from disguised.work
Jacob Appelbaum character assassination was pushed from the White House
Reprinted with permission from disguised.work
Why We Revisit the Jacob Appelbaum Story (Demonised and Punished Behind the Scenes by Pentagon Contractor Inside Debian)
If people who got raped are reporting to Twitter instead of reporting to cops, then there's something deeply flawed
Red Hat's Official Web Site is Promoting Microsoft
we're seeing similar things at Canonical's Ubuntu.com
Enrico Zini & Debian: falsified harassment claims
Reprinted with permission from disguised.work
European Parliament Elections 2024: Daniel Pocock Running as an Independent Candidate
I became aware that Daniel Pocock had decided to enter politics
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 30, 2024
IRC logs for Tuesday, April 30, 2024
[Meme] Sometimes Torvalds and RMS Agree on Things
hype around chatbots
[Video] Linus Torvalds on 'Hilarious' AI Hype: "I Hate the Hype" and "I Don't Want to be Part of the Hype", "You Need to Be a Bit Cynical About This Whole Hype Cycle"
Linus Torvalds on LLMs
Colin Watson, Steve McIntyre & Debian, Ubuntu cover-up mission after Frans Pop suicide
Reprinted with permission from disguised.work
Links 30/04/2024: Wireless Carriers Selling Customer Location Data, Facebook Posts Causing Trouble
Links for the day
Frans Pop suicide and Ubuntu grievances
Reprinted with permission from disguised.work
Links 30/04/2024: More Google Layoffs (Wide-Ranging)
Links for the day
Fresh Rumours of Impending Mass Layoffs at IBM Red Hat
"IBM filed a W.A.R.N with the state of North Carolina. That only means one thing."
Workers' Right to Disconnect Won't Matter If Such a Right Isn't Properly Enforced
I was always "on-call" and my main role or function was being "on-call" in case of incidents
Mark Shuttleworth's (MS's) Canonical is Promoting Microsoft This Week (Surveillance Slanted as 'Confidential')
Who runs Canonical these days? Why does Canonical help sell Windows?
A Discussion About Suicides in Science and Technology (Including Debian and the European Patent Office)
In Debian, there is a long history of deaths, suicides, and mysterious disappearances
Federal News Network is Corrupt, It Runs Propaganda Pieces for Microsoft
Federal News Network used to be OK some years ago
What Mark Shuttleworth and Canonical Can to Remedy the Damage Done to Frans Pop's Family
Mr. Shuttleworth and Canonical as a company can at the very least apologise for putting undue pressure
Amnesty International & Debian Day suicides comparison
Reprinted with permission from disguised.work
[Meme] A Way to Get No Real Work Done
Walter White looking at phone: Your changes could not be saved to device
Modern Measures of 'Productivity' Boil Down to Time Wasting and Misguided Measurements/Yardsticks
People are forgetting the value of nature and other human beings
Countries That Beat the United States at RSF's World Press Freedom Index (After US Plunged Some More)
The United States (US) was 17 when these rankings started in 2002
Record Productivity and Preserving People's Past on the Net
We're very productive these days, partly owing to online news slowing down (less time spent on curating Daily Links)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 29, 2024
IRC logs for Monday, April 29, 2024
Links 30/04/2024: Malaysian and Russian Governments Crack Down on Journalists
Links for the day
Frans Pop Debian Day suicide, Ubuntu, Google and the DEP-5 machine-readable copyright file
Reprinted with permission from disguised.work
Axel Beckert (ETH Zurich), the mentality of sexual violence on campus
Reprinted with permission from Daniel Pocock
[Meme] Russian Reversal
Mark Shuttleworth: In Soviet Russia's spacecraft... Man exploits peasants
Frans Pop & Debian suicide denial
Reprinted with permission from disguised.work
Hard Evidence Reinforces Suspicion That Mark Shuttleworth May Have Worked Volunteers to Death
Today we start re-publishing articles that contain unaltered E-mails