Independence of the Boards of Appeal - EPLAW and CCBE comment

Merpel wrote back in March on the proposal by the President of the European Patent Office for plans to reform the administration of the Boards of Appeal (proposals here and here; Merpel's comments here).  Readers may recall that there is currently running a consultation on these proposals, and that both AMBA (the Association of Members of the Boards of Appeal) and the Presidium of the Boards of Appeal  have commented on them already.

Merpel now notes that EPLAW (the European Patent Lawyers Association) and CCBE (the Council of Bars and Law Societies of Europe) have submitted comments, which have been reported and posted on the EPLAW Blog.  Two points raised by EPLAW merit repeating:

5. Two aspects of the Proposal cause most concern to EPLAW. 

6. One is that the EPO almost equates the (desired) perceived autonomy of the BoA with their (undesired) perceived inefficiency; in fact most of the Questions deal with this perceived inefficiency. We believe that these subjects (autonomy/independence and efficiency) require separate handling. The independence of the BoA is a much more fundamental issue than its (in)efficiency. Moreover, we don’t think that the connection suggested by the EPO - that excellent performance (efficiency) would generate independence (autonomy) - has any basis in law. Efficiency is a matter of perceived fact, whereas autonomy is a matter of constitutional law. 

7. The second point is that the EPO stresses that any improvements should be achieved within the legal framework of the current EPC. The current EPC envisages that both the AC and the President of the EPO have certain powers vis-à-vis the BoA. The Proposal in essence suggests that (only) the President’s powers be delegated to a newly to be created President of the BoA, rather than to revise the relevant EPC-based AC and Presidential powers. The CCBE in their letter to Mr. Kongstad have raised the question whether such delegation would withstand the scrutiny of constitutional lawyers: Does it achieve the desired independence of the BoA (to be compared with the judicial branch of a state), or could the delegation be withdrawn by the President of the EPO?

Merpel is in particular concerned about the conflation of autonomy and efficiency, and considers that these two issues are totally separate.  As to whether the proposals are legal within the existing framework of the European Patent Convention, she will leave to constitutional Kats to decide.  The CCBE response, which is a more detailed analysis of the proposals, at several points considers otherwise.  For example, in relation to a number of proposed transfers of powers from the President of the EPO to the President of the Boards of Appeal or to the planned Board of Appeal Committee (BOAC - consisting of seven members, with three being members of the Administrative Council and four being external members to be chosen by the Council from among presidents and/or senior judges of national, European and international courts upon proposals from the delegations), CCBE comments:

it is important that the delegation of powers by the President of the EPO be both permanent and irrevocable.  It is not clear whether as a matter of constitutional law that can be achieved; if not amendment of the EPC may be required.

The CCBE questions what kind of judges should be eligible to serve on BOAC - Merpel in turn wonders whether direct administrative supervision (as opposed to more distant supervisory oversight) of the Boards by a committee containing members of the Administrative Council (who are effectively the legislature of the EPO) is appropriate in any case.

Finally (for now), Merpel notes that the CCBE considers that it would be better for the Boards of Appeal to be located in a different city from the rest of the EPO, which Merpel still thinks would be folly.

If any of these comments inspire you to submit ones of your own, Merpel reminds readers that the consultation will run until 30 June 2015.

As ever, Merpel welcomes comments, but begs to remind readers of the following:

Henceforth, in respect of all EPO-related blogposts, no comment will be posted if it is merely ascribed to "Anonymous".  Any reader wishing to conceal his or her identity must adopt a pseudonym (which should not be obscene and should not be the name, or the mis-spelling of the name, of a real person).  The pseudonym need not be an actual login name, as long as it is stated clearly at the beginning and/or end of the comment itself. This way, it will be easier for people who post later comments to identify and remember the earlier comment-poster and to recall the discussion string.  Where, as has already happened on occasion, a string carries over from one blogpost to a later one on the same or a related subject, readers will be encouraged to use the same pseudonym for the sake of continuity.