In an open letter to EPO president António Campinos, trade union SUEPO has called for an execution of the recent judgments of the Administrative Tribunal of the International Labour Organization (ILOAT) concerning restrictions on the right to strike at the EPO.
In a series of judgments the ILOAT ruled that the legal framework which was introduced in 2013 by former president Benoit Battistelli and was intended to curb strikes, is unlawful (see this earlier post).
As the SUEPO writes: “The judges emphasised: It has long been recognised that staff of international organisations have a right to strike and that generally it is lawful to exercise that right. They ruled inter alia:
- Circular No. 347 (Circular on Strikes) is set aside.
- “Go slow” and “work to rule” are legitimate forms of industrial action protected by the ordinary conception of the right to strike.
- Imposing a minimum of 10% of employees who may call for a strike violates the right to strike.
- The requirement that the vote be conducted by the Office violates the right to strike.
- The time limit placed on the duration of strike violates the right to strike.
- Being on strike must not be stigmatised as an unauthorised absence from work. A salary deduction on this basis is unlawful.
- The deduction of 1/20 of salary for each day a member of staff is on strike is considered punitive and thus not lawful.
In your first official meeting with SUEPO representatives on 5 December 2018, the above rules for strike were on the agenda. You confirmed your readiness for looking at them together with us with the intention of settling pending cases and finding a modus vivendi reflecting a staff union’s prerogative for organising a strike. But to date nothing in this respect has happened!
It is true that the regulations were introduced under your predecessor. However, you have to accept the consequences of continuing to entrust the fate of the EPO to the advisors of the time. Thus, the full responsibility for the serious loss of reputation caused for the EPO now lies solely with you.
What was once a model organisation for Europe has revealed itself as an institution that has breached the fundamental rights of its employees – for more than eight years. (…)
We request that you execute the judgments and that accordingly Circular 347 is quashed ab initio.
For the reason that all EPO staff was deprived of their right to strike with unjustified salary deductions, we request that the outcome of the judgments is applied to all. In particular, we request that,
- Judgment 4430 be applied to all EPO staff who were deprived of their right to participate in the SUEPO strike of July 2013
- Judgment 4433 be applied to all EPO staff who was considered on unauthorised absence for participating in the SUEPO strike of July 2013,
- Judgments 4432 and 4434 be applied to all EPO staff active at the time of the events who were deprived of their right to vote in strike ballots
- Judgment 4435 be applied to all EPO staff who had excessive strike deductions of 1/20th since 1 July 2013
(…) Finally, we urge you to propose to the Administrative Council the withdrawal of the decision CA/D 5/13 ex tunc. Such a decision in the upcoming meeting on 13 October 2021 could at least avoid another embarrassment for the Organisation in front of the Tribunal in Geneva.”
The June 2013 decision CA/D 5/13 of the EPO’s Administrative Council created a new Article 30a of the service regulations for EPO employees concerning the right to strike, and it amended Articles 63 and 65 concerning unauthorised absences and the payment of remuneration. It also authorised Battistelli to lay down further terms and conditions, which he did in the controversial Circular No. 347, that has now been declared unlawful by the ILOAT. Article 65 introduced the 1/20 method for calculating salary reductions in case of strikes, which was considered punitive by the ILOAT as it was different from the method of calculating salary deductions for other purposes (the 1/30 method).
The EPO hasn’t reacted to questions of Kluwer IP Law about the ILOAT judgments and the SUEPO’s open letter.
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I do not want to sound cynical but the tenant of the 10th floor will done barely more than what is absolutely necessary to abide by the decision of the ILO-AT.
It should however not be forgotten that he was appointed in order to restore social peace at the EPO. Napoleon 4th could at least keep the contenance when discussing with staff, this is not the case with his successor.
In this context he has reached a level of detestation by staff quicker than Napoleon 4th and this says a lot.
It should also not be forgotten that those who inspired the rules for industrial action now quashed are still having their jobs at the EPO.
Last but not least, the budget for 2021 provided 6, in words six, million Euros for external legal advice for conflicts with staff.
It is a pity to see the EPO being run in the wall by a bunch of pseudo managers whose incompetence is difficult to top and decide about things without knowing or disregarding what consequences their decision can have at the “coal front”.
The worse is that with its New Normal the bunch of people thinking they are the bees knees, want to create an EPO 2.0 which is in blatant contradiction with the EPC as it stands!
One wonders if the hidden agenda of Napoleon 4th and of his successor is not to destroy the EPO ,.
Maybe, instead of asking the EPO for its reaction, Kluwer should ask the national delegates to the Administrative Council for their reaction.
From which pool of candidates, do you think, the EPO recruits its brightest and highest-ranking officials ?
Former members for the BA are submitted to a two years cooling off after the end of their duties.
A similar cooling off period should be imposed to members of the AC if they want to occupy a job at the EPO.
It is a scandal to see that the present VP5 and the PD 5.2 moved straight from the AC to DG5.
No wonder the tail is wagging the dog.
The delegates to the AC have in their wast majority not the faintest clue about what is going on at the EPO and are gullible to any nonsense proffered by the administration.
They do not want the cooperation budget for their country and their personal perks to be reduced.
If it comes from the administration it must be good.
Now you might understand better why the tail is wagging the dog!
@Attentive Observer
My problem with your repeated disparagements of the former President is not so much that they are inappropriate, it is that they tend to obfuscate the essential issue rightly raised in your comment, which is the potential shift to EPO 2.0. This issue should not blurred by personal allegations (cronyism, conflicts of interest, incompetence and the like).
There is unquestionably a drive toward 2.0 simply as a result of the developments of IT technology, and the pandemic is acting as a accelerator. What could that imply for the EPO ?
In short, there may be the option attractive to some to turn the EPO into a decentralised network of national franchises. The EPO would become akin to a brand, with a central unit dealing with corporate management and producing the rules (Boards of Appeal, Legal Directorate, guidelines), the tools, training tutorials, and national franchises using the trademark and the tools. National franchises could be close to NPOs for obvious convenience and likely open to local influence. This would be the end of the EPO in its centralised structure.
It seems clear that within the AC some of the Member States could favour this kind of evolution. This seems to be the case for the UK and Northern European countries. I would see here the result of national cultures, each fully respectable. Thus I think the issue deserves a serious conversation, as dispassioned and objective and therefore as disconnected from personal considerations as possible. There has been a precedent with the debate about decentralisation in 2008.
As you can see, I am an incurable optimist.
Francis, if there is indeed a move to (unlawfully) create an EPO 2.0, how could that possibly be achieved in the absence of corruption within the EPO and the AC? That is, if those running and overseeing the EPO were insistent upon staying within the limits of their powers, and were not tempted (by opportunities for self-enrichment) to exceed those powers, then there would be no need to fear the creation of an EPO 2.0 by way of any mechanism other than a Diplomatic Conference.
From this perspective, I think that it is important to shine a light upon instances of (apparent) corruption within the EPO and the AC as promptly as possible … on the basis that doing so might help to “disinfect” the EPO before the rot sets in too deeply. On the other hand, certain recent developments at the EPO could be argued to point a truly pervasive rot, and so perhaps complaining about corruption is a futile exercise now. Also, it makes one speculate how different things might have been if more within the profession had raised the alarm during the tenure of the previous President (who, unlike the current incumbent, was careful to avoid taking actions that caused immediate displeasure and alarm amongst users of the EPO). We shall never know.
Just to emphasise the snails pace of the IOLAT: already in 2015 a Dutch appellate court ruled that parts of the EPO’s strike regulations violated human rights (see e.g. https://ipkitten.blogspot.com/2015/02/can-suepo-sue-epo-it-now-seems-so.html). This decision was later overturned by the Dutch High Court, referring among others to the EPO’s immunity and the possibility to go to the ILOAT, see https://www.epo.org/news-events/news/2017/20170120.html.
So: Dutch courts, up until the High Court: 4 years. Final decision ILOAT: 8 years…
The decision by the Dutch supreme court is perhaps one of the worst that I have ever seen.
As I recall, the essence of that decision is that, for the purpose of enforcing the right to association (including the right to collective bargaining), the supreme court held that recourse to the ILO AT is an adequate alternative to national courts. Recent events have proven precisely how wrong-headed that conclusion was. That is, the after-the-fact decision by ILO AT now casts doubt upon the legitimacy of provisions that were passed and in force whilst unlawful restrictions on the right to strike were in force. However, ILO AT will not have either the power or the inclination to rule that those questionable provisions are indeed unlawful.
In other words, forcing EPO employees to seek recourse only via ILO AT effectively eviscerates their right to collective bargaining with their employer BEFORE the imposition of legally questionable measures. It is impossible to see how this does anything other than breach the fundamental rights of EPO staff. Shame on the Dutch supreme court for rubber-stamping this denial of justice.
Abusive restrictions on strike deductions (and organisation of strikes), abusive restrictions on communication means imposed on SUEPO (de facto limiting information of members hence of all EPO Staff), no SUEPO recognition (despite ca. 50% of EPO staff being SUEPO member), time limited contracts (surely to enhance the independence of view of workers), refusal so far to redress the cases of Mr Petiaud in Munich and Lund in The Hague (experts nominated by the Staff Representation who were the first to be abusively sanctioned by Battistelli et al.), to be continued
But all is fine and let us praise Mr Campinos who proudly trumpets during administrative council meetings that social dialogue at EPO is high on EPO’s agenda
18 days after the announcement of the judgments not a single reaction from the administration. Usually Laurent, Head of the Employment Law.Department is keen on making an Intranet Communiqué celebrating the victories of the EPO against it staff at ILOAT. Now, its dead silence. And silence means the sinister advisors of Campinos are thinking about how NOT to execute the judgments. The EPO has lost its dignity and is not afraid of another embarassment. A sound organization, would have already announced the reimbursement of the unlawful and punitive strike deductions of 1/20th.
Also, an internal audit would already be running in order to understand how the internal injustice system could have been so wrong in rejecting all internal appeals with its Chair Sir Paul Mahoney who actually worked as a Judge at the European Court of Union Rights: “the strike deductions of 1/20th are proportionate” he dared to write.
But of course, this would require work from Mr Campinos who also shows very little interests in staff rights and just asks Nellie Simon (VP4) to sign whatever Gilles Requena (Chier International Legal Officer) and Élodie Bergot (Chief Policy Officer) bring to him. The latter are still the ones running the EPO while Campinos is enjoying his EPO 2.0 bubble from a country where he can wear shorts. Battistelli missed the Seine in Paris, Campinos misses the sun from Alicante, but they both missed the point by ignoring all warnings as to the legality of the strike regulations. And if they knew and continued nevertheless, then that is a gangster attitude.
How can the EU even think to continue to entrust the EPO with the Unitary Patent?
@Concerned observer,
I cannot but agree with you.
ILO-AT only checks whether the procedures have been correctly applied, but barely ever says that the measures itself are illegal or incorrect.
It is only in very clear-cut cases, like here, that the procedure is considered flawed.
In a sense it is understandable as the ILO-AT does not want to engage in “political” discussions.
The difference with the CJEU is is significant. After negotiations with the union, the EU Commission accepted that salary increases should be within a given range, let’s say 1-4%.
The EU Commission decided that the increase would be 1,1%. The CJEU decided that this was not correct and the increase will be 2,5%.
It is unthinkable that the ILO-AT ever comes to such a conclusion.
The same will apply to the salary and pensions reductions decided by the EPO management on the basis of a financial study which proposed various scenarios. The EPO management chose eventually the worse one for staff, claiming that there is no guarantee about the level of annual fees in the future, which is plainly ridiculous.
When on top of this, 6 millions € have been foreseen in the budget 2022 for legal advice in disputes with staff, the conclusion is quickly drawn about the will of the EPO management to restore social peace.
EPO staff have actually no real means of redress as the decisions of the Internal Appeals Committee (IAC), even the unanimous ones, can be set aside by the president without any reason. Non unanimous decisions the more so.
It leaves thus staff members of the EPO to go to Geneva, which is a long and tedious process.
The ILO-AT is literally submerged by complaints to the EPO, and cannot any longer deal with this influx of cases from the EPO. And the access to the IAC has been made more difficult with the creation of an administrative review before having access to the IAC.
That on the other hand, OP by ViCo have to be mandatory in order to deliver justice quickly is adding insult to injury to staff members who have to wait for years before the ILO-AT takes a decision, which on top of it is rarely positive for the above reasons.
But the EPO is immune, and being immune is equated by the president and its minions that they benefit of impunity.
It is sickening to see how such incompetent, but would-be managers, drive the EPO into the wall, with on top of it, the benediction of the AC.
Cher Monsieur Hagel,
It is difficult not to link what has been happening since 2010 and 2018 at the EPO by making abstraction of who was sitting on the 10th floor.
I agree with you that the essential issue rightly raised in my comment, is the potential shift to EPO 2.0 in the absence of a Diplomatic Conference. The mechanism to amend the EPC is in Art 172. That the AC cannot take decisions contrary to the EPC is in Art 164(1). No exceptions are foreseen.
This issue is not blurred by personal allegations (cronyism, conflicts of interest, incompetence and the like). Napoleon 4th brought with him a group of people of which some of them are still active at the destruction of the EPO.
The latest tenant of the 10th floor has done even worse. He brought chores of people from Alicante, to start with VP1 and VP5. Nowadays if you do not come from the Iberian Peninsula or if you did not have any contacts with the EUIPO, you do not stand a chance to be admitted to the EPO at director or PD level.
When taking as VP5 the former head of the AC and as PD 5.2 shows that “in-breading” has taken proportions which are not any longer tolerable.
All those people are indebted to the past and present head of the EPO for their position within the management of the EPO. Do you honestly think that their attitude will be any different of all the people displayed in the famous series “Yes Mr PM”, here “Yes Mr President”? In French: des bénis oui, oui!
Mentioning those facts are not there to obfuscate the debate, but to show that the tenants of the 10th floor have managed to gather around them only people which will find any idea uttered by the heads of the EPO as being the 7th world marvel.
How do you think it would possible, not only to pursue EPO 2.0, but also making sit all examiners in open spaces rooms, should their dare want to come on the premises of the EPO to exercise their duties?
This is the result when of people having no clue of what is the work done at the EPO, allow themselves to decide how it has to be carried out. This is the real scandal.
That the AC is accomplice to this destructive behaviour is also a scandal.
I am pleased that epi has decided to react in G 1/21. I would have liked to have seen a reaction when Napoleon 4th introduced R 12a-d and exiled the BA to Haar. Ironically the BA should come back to Munich, but like for examiners all members of the BA will not have a dedicated working space and even less a dedicated office.
Seeing how the BA has been acting up to now in G 1/21, the only logical conclusion is that the EBA is nothing more than a puppet on the strings of EPO’s management.
Seeing that Art 4a EPC 2000 has not been applied once does not lend me to be optimistic.
I have nothing against amending the EPC, but it should be done the proper way with the proper instruments and not by way of secondary legislation like in G 3/19.