Report of the By-Laws Committee (BLC)

P. Moutard (FR), Chair

1. BLC meetings and the topics discussed during these meetings

Since the C 83 Council meeting several BLC meetings took place, some of them being held through the new video system of the Secretariat. Depending on the topic discussed, other epi members were invited to the discussions: Mr Francis Leyder, President of the epi, Mr Peter Thomsen (Treasurer), Mrs Gabriele Leissler-Gerstl and Mr Claude Quintellier (both of the Nominations Committee), Mr Paolo Rambelli (PEC) etc.
The main following topics were discussed during these meetings:

  • the incompatibilities between certain committees or bodies of the epi;
  • amendments of following articles of the By-Laws: Art.1, 8.2, 15.4, 18, 20.1 and 54;
  • a new proposal for amending Rule 154 EPC;

We make here below a short presentation of these different topics.

2. Incompatibilities between certain Committees or Bodies of the epi

It has been proposed to amend the Terms of Reference of some committees (By-Laws Committee, Professional Education Committee (PEC), Professional Conduct Committee (PCC), epi-Finances Committees, Student Admission Committee) in order to avoid conflicting situations, in particular in Disciplinary and EQE related issues, between some committees or bodies, but without stretching the notion of "conflict" too much (which would also result in too extreme situations).

Following proposals were made and approved by the epi Council (Malta, C 84):

  • concerning the members of the epi-Finances Committee: they should not be at the same time members of the Board;

  • concerning the members of the By-Laws Committee (BLC): they should not be members of the Board because one of the tasks of the BLC is to advise the Board.

  • concerning the Professional Conduct Committee (PCC): its members should not be members of the Disciplinary Committee, of the Disciplinary Board, of the Disciplinary Board of Appeal nor of the epi Board, because the core activities of PEC consist in advising the Secretary General, the Board and the President on conduct and disciplinary issues and in formulating recommendations on conduct;

  • concerning the Professional Education Committee (PEC): its members should not be members:

    * neither of the Disciplinary Board of Appeal (DBoA) nor of the Examination Board, because
    PEC may represent the epi President before the DBoA when Appeals against decisions of the Examination Board are heard (see also of the Collection of Decisions);

    * of the Supervisory Board, which is advised by the Examination Board (EQE regulation, Art. 6(1)).

    Furthermore, it is recommended that a member of PEC, who would be member of an examination committee, does not represent the epi President before the DBoA (because the members of the examination committees receive instructions from the Examination Board (EQE regulation, Art. 6(2) and 24).

  • Concerning the Student Admission Committee (SAC):

    * a member of the SAC cannot be a member of the Disciplinary Board of Appeal (because of appeals against decisions of the Examination Secretariat, before which anybody can apply for being an EQE candidate, in  particular after being refused by the SAC):

    * the Chair of SAC should not be member of Supervisory Board of the EQE.

    These exclusions will apply only from the next Committee elections in 2020, although, as rightly mentioned by the President of the epi, Mr Francis Leyder, during the Council meeting in Warsaw (C83), this situation does not remove any existing conflict until 2020.

    In particular, members and deputy members of the Supervisory Board, of the Examination Board and of the Examination Committees are bound by a duty of secrecy (EQE Regulation, art.23) which is quite extensive (« ... during and after their term of office with regards to all matters concerning the preparation of the examination papers, the candidates and any relevant deliberations »). It can be very risky for any epi member to be a member of any of these bodies and to be involved in other activities, in connection with matters on which he/she is bound to secrecy.

3. Amendments of the By-Laws

A. Article 1 (Council elections):

In article 1, the reference to Article 134 EPC was replaced by a reference to Article 134a EPC, for consistency with the EPC2000 (Helsinki, C85).

B. Article 8.2 (Terms of office of Board Members):

According to this article, the terms of office of each Board Member ceases in case of a change of constituency or of electorate of the Board member.

Some years ago, Council amended Article 5.2 of the By-Laws so as to allow a Council member to remain a Council member when he/she changes constituency or electorate.

A similar amendment to article 8.4 was proposed and approved by the Council in Helsinki (C 85) for Board Members, so that a change of constituency or of electorate is no longer a reason for which the term of office of a Board Member ceases.

C. Article 15.4 (Duty of the Secretary General to produce a summary of the unapproved minutes after each Council meeting).

Art. 15.4 BL was amended (Malta, C84) in order to remove the obligation to prepare a summary document in 3 languages of the unapproved minutes. This summary is now prepared in only one language.

D. Article 18 (Constitution and organisation of Committees).
This article was amended further to the discussions and the decision taken in Warsaw (C 83).
The BLC has harmonized the 3 versions of this long article with each other. Further stylistic amendments were made (for example: reference to "such other committee" or to "any such other committee" in art. 18B.2-18B.8).
The text of the finally proposed art.18 BL was adopted by the Council in Malta (C84).

E. Article 20 (Internal Auditors).

Article 20.1 BL was amended (Malta, C84) to make clear that there can be other elections during the term of office of the Council members, for example in case an auditor resigns.

F. Article 54 (Election of committee members).

This topic was discussed further to the Board meeting B100, the Board having asked the By-Laws Committee to draft a proposal for the Helsinki Council meeting (C85) aiming at improving the election and nomination process for Committees; in particular, there should be deadline for nominations for Committees in advance of the Council meeting where new Committee members are elected.

Furthermore, in view of the problem of epi members who would like to be candidates but who are not supported by Council members, article 54 BL was amended (Helsinki, C 85) in order to explicitly allow any epi member to be a candidate for any committee election and to publish the information about possible vacancies on the epi website. The possibility for full Council members or for any person according to Art 38.1(2) BL to propose candidates is maintained.

Rules were also adopted by Council (Helsinki, C 85) in order to organise the nominations. These Rules will be part of the Collection of decisions of the epi. Briefly:

  • According to § 1 of these Rules, the Secretariat informs all epi members about vacancies in committees through the epi website. Thus it will be easier for epi members to be informed about such vacancies and to be candidates;

  • A formal process is defined for being a candidate, both in terms of deadlines (3 months before the election) and of nomination form (§§ 3 and 4 of the Rules). The deadlines do not apply to by-elections (§ 2 of the Rules) because a committee member must sometimes be replaced during his/her term of office on a short term basis; however, in such case, the information about the vacancy is published by the epi on the website (§ 1 of the Rules);

  • Any candidate must fill out a nomination form, which includes a field for a short CV of the candidate and a field for explaining his/her motivations (§ 3 of the Rules); this applies to all candidates, even those proposed by full Council members or by any person according to Art 38.1(2) BL (§ 5 of the Rules).If a candidate files a nomination form within the deadline (§ 4 of the Rules), his/her nomination will be processed by the epi Secretariat;

  • For committees for which there are fewer candidates than the number of electable members the nomination procedure will be reopened for a period of 14 days (§ 6 of the Rules), ending at the latest 1 month before the elections.

The Secretariat finally draws up the final list of candidates for elections not later than 2 weeks before the election (§ 7 of the Rules). This list can thus be included in the accumulated file just before the Council meeting.

4. New proposal for amending rule 154 EPC

The BLC has also worked on a new proposal to amend Rule 154 EPC, together with the Treasurer, since the former proposal was not fully accepted by the Committee on Patent Law of the EPO.