Joff Wild

In what can only be described as a significant challenge to the authority of European Patent Office president Benoît Battistelli, a majority of EPO staff have voted for a strike timed to coincide with a forthcoming full meeting of the Administrative Council taking place next week in Munich.

According to a report in the Register, 3,701 (91%) of the 4,062 EPO employees who took part in a ballot called by staff union SUEPO yesterday voted in favour of action. That number represents over half of the 6,738 individuals - based in Munich, Berlin, The Hague and Vienna - entitled to participate. The union is obliged to give the EPO management five working days’ notice of a walk-out, meaning that 16th March – the first day of the next Administrative Council meeting – looks highly likely to be D-Day.

The vote comes after years of bitter and sometimes very personal wrangling between the union and Battistelli over a series of reforms that the president has introduced in the office affecting staff working conditions and remuneration packages. It also comes at a point when, for the first time, it seems that the president may not enjoy the full support of Administrative Council members. A letter written by the council’s chairman – and long-time Battistelli collaborator - Jesper Kongstad in which a number of disagreements were highlighted was leaked last month.

Although it has been claimed that new drafts of the letter have since been formulated which are far more conciliatory, the fact that there was a leak in the first place is significant; while a major bone of contention does still seem to exist around Battistelli’s decision to fire two union officials and downgrade another one following the conclusion of disciplinary proceedings earlier this year. In all three cases, Battistelli is reported to have taken action beyond that which was recommended by the disciplinary body itself. The leaked Kongstad letter states that Battistelli refused to accept an Administrative Council request that the decisions about the SUEPO officials be externally reviewed.

Since 2012, Battistelli has introduced nine reforms to EPO pay and working conditions affecting: part-time working (2012); the appeals system, harassment procedures, the code of conduct, strike regulations and well-being (2013); salary adjustments (2014); career paths, sick leave and incapacity benefits (2015). These have been justified as attempts to modernise working practices and incentive schemes in order to improve productivity at a time of increasing competition between patent offices. The average length of examiner service at the EPO is just over 27 years and there is an annual staff turnover of under 4%.

Although there have been some strikes and a number of walk-outs over recent years, they have never been supported en masse by EPO staff, while productivity figures have risen. This has allowed Battistelli to state that only a vocal minority are opposed to the reforms. For its part, the Administrative Council – many of whose members are drawn from national patent offices which get a large part of their funding from EPO revenues – has remained silent, presumably because it approved of the president’s leadership. Indeed, in 2014, the Administrative Council extended Battistelli’s term of office until June 2018.

The firing and downgrading of the SUEPO officials, though, has changed the entire dynamic at the office. In retrospect, it seems that Battistelli misread previous lack of support for industrial action among the examiner corps for acceptance of his changes; while at the same time over-estimating the backing he had on the Administrative Council, a body that has always been extremely political. Now he finds himself in a very difficult situation. He may seek to point to the fact that a large number of staff members did not take part in the ballot, but the obvious comeback is that over 4,000 of them did, and that an overall majority of office employees voted for a strike; to the best of my knowledge, this is an unprecendented number, at least in recent years. If, though, Battistelli accedes to the Administrative Council’s request for an external review of the disciplinary measures he took, that will be seen as a significant dent to his authority.

Undoubtedly there is going to be a lot of politicking up to and during the meeting in Munich next week. There will be some on the Administrative Council who feel there is now an ideal opportunity to force Battistelli from his position – either directly or through insisting on the external review. Others, though, may still be a little more circumspect – especially as the new UPC regime looms on the horizon or a Brexit vote in June puts its entire future under existential threat. The last thing that the EPO needs right now, they might conclude, is the upheaval of an election to choose a new president. And while Battistelli does not seem to have the full confidence of the council in the way he once did, it is undoubtedly the case that many of its members will still be on his side.

We will have to wait to see how this plays out. But one thing is certain: Benoît Battistelli is under pressure like he never has been before; today his leadership of the EPO is in crisis.