Why the Enlarged Board rejected the AC in September

Merpel has finally had sight of the written decision of the Enlarged Board of Appeal (EBA) in which it rejected the request made by the Administrative Council (AC) chairman, Mr Kongstad, seeking the dismissal of a Board Member for the events leading up to the House Ban.

We knew that the EBA had rejected Mr Kongstad's request, for Mr. Battistelli was driven to write a memo to the AC asking it to bypass the EBA and simply fire the Board Member, since the EBA had (he said) shown itself to be incapable of fulfilling what was a simple administrative request. In other words, the EBA's only job (he believed) was to rubber stamp the AC's request (see Merpel's post "Ignore the Enlarged Board, EPO President tells Administrative Council" if you want a fuller reprise). 

Merpel has only had time for a quick read of the written decision, and hopes to publish the full text shortly, but can tell readers the following:

1. The EBA said in no uncertain terms that far from rubber-stamping any request to remove a Board Member from office, it must satisfy itself in adversarial proceedings conducted in proper judicial form, that the allegations made against the Board member are true and warrant the most serious sanction available, i.e. removal from office.

2. Contrary to what Merpel had understood, the request was NOT rejected for the procedural reason that Mr. Kongstad had made the request rather than the AC making the request as Article 23 requires. Indeed the EBA found that Mr. Kongstad was authorised to make the request on behalf of the AC.

3a. The request was rejected because it was not properly substantiated. The AC had commissioned a report from a specially constituted Disciplinary Committee (DC). That DC's report formed the substance of the case, and was accompanied by a USB stick containing a mass of documents and files, which were said to be the evidence against the Board Member.

3b. The EBA held that the DC report did not sufficiently document the facts and evidence for two of the five allegations it held to have been proven, and nor did it express a view on the reliability of the evidence itself. This meant that neither the EBA itself nor the Board Member being accused was able to preoperly understand and respond to the case being made and it was not reasonable for the EBA and the other party to trawl through the USB stick to reconstitute the evidence.

3c. For the three other allegations, the DC report stated conclusions but did not even set out the facts and evidence leading to the conclusions. Accordingly, for all five allegations, there was insufficient substantiation to allow proper, adversarial, judicial proceedings to be fairly conducted.

4. The EBA refused a request from Mr. Kongstad that the EBA tell him what he needed to do to make out a proper case. No surprise there, it would be extraordinary for a court to assist one party in this way.

5. The EBA made an award of costs to the Board Member for his legal costs in the proceedings to date.

As indicated above, this is Merpel's very quick initial impression of the Decision. She hopes to return to it before long. Readers will undoubtedly ask that she post a copy of the decision, and she will do so, but not immediately and hopes that readers will bear with her patiently in this regard.

Reminder for commenters: As has been true with Merpel's EPO posts for some time, and as is now the general IPKat policy, comment-posters are required to identify themselves via a pseudonym if they don't want to use their own names, since there are far too many people called "Anonymous" and it can be difficult-to-impossible to work out which Anonymous is which [if any anonymous posts get through, it's by accident -- not a change of policy]. Also, Merpel moderates EPO-related comments quite heavily, knowing that some readers get so exercised that they forget the normal standards of comment etiquette (or even of libel laws).