Six months after ILOAT judgment No. 4551, ruling that measures restricting mass emails at the European Patent Office were contrary to the freedom of communication and must be set aside, the EPO management has failed to execute the judgment and has tried to restrict mass emails in other ways.
The Central Staff Committee (CSC) of the EPO sent letters about the case (see also this earlier blogpost) to EPO president António Campinos on 29 July, 6 September and 28 October 2022. In the first letter it demanded immediate execution of Judgment No. 4551, issued on 6 July 2022, and reinstatement of the former rules on mass emails in force prior to 31 May 2013.
In its open letter of September, the CSC wrote that two
months after the ruling of the Tribunal, it had still not been executed. The CSC pointed out: ‘We note that mailing lists for sending mass emails to more than 50 staff members, e.g. DDL-ALL-STAFF(-XX), already exist in the EPO standard email system. Such mailing lists can be easily selected from the available address book and inserted into the recipient field. However, when the sender is a Staff Committee or one of its members, sending of the email is technically blocked. The same applies upon inserting more than 50 individual addresses as recipient from the available address book.’
According to the CSC’s open letter of October, despite stating ‘that the Office is committed to executing Judgment No. 4551 of the Tribunal as swiftly and comprehensively as possible’, president Campinos ‘decided to maintain the limit of the number of email recipients to 50 and to add a “new feature” as a precondition for executing the judgment, i.e. to introduce a right for staff to unsubscribe from the relevant mailing lists. You try to justify the additional constraint imposed on the CSC with the right to privacy and data protection.’
The CSC points out: ‘We note that you obviously chose to not invoke data protection and respect for private life before the ILOAT, so that there is actually no place for additional privacy pleadings at this stage.’ After setting out, among others, that the EPO Service Regulations ‘already contain provisions to protect fundamental rights and freedoms as well as personal data of employees in the course of their official activities’, the CSC concludes: ‘In short, there is no need and no legal basis for any additional limitation on our right to communicate.’
Apparently, the EPO management has proposed to hire an external service provider managing distribution lists and has sought the opinion of the Data Protection Officer (DPO) on the matter. The CSC writes it regrets ‘that her independence has led her to ignore the judgment and depart from the letter and spirit of the Service Regulations and the Data Protection Rules (DPR)’. It reiterates ‘the demand made in two previous letters for the immediate execution of Judgment No. 4551, in its entirety and without any additional obstacles, which have no legal basis or justification whatsoever.’
The EPO declined to comment.
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The EPO is worse than Musk not tolerating workers unions at Tesla.
So what is the practical consequence of the EPO disregarding an ILOAT judgement (and thereby continuing to infringe the right to association of its staff)?
The AC has now been asleep at the wheel for over a decade, and has recently given up even pretending to act as the EPO’s independent overseer. There would therefore seem no point asking the AC to step in to ensure that the EPO respects the rule of law. But to whom else can the EPO’s staff turn?
Would the EPO’s blatant disregard of ILOAT judgements provide an opportunity to ask the Dutch Supreme Court to revisit their infamous judgement on the EPO’s immunity from suit? I have my doubts.
In any event, it is interesting to observe how an international body tasked with implementing laws can effectively “go rogue” (by failing to uphold the rule of law, rendering their governing laws meaningless by interpreting them according to their wishes, etc.) without giving rise to even the slightest signs of concern amongst the member states. And yet this is the very organisation that will soon be entrusted with even more powers (regarding “unitary” patents).
Given the weaknesses and flaws in the governance structure of the UPC (even compared to the EPO), I shudder to think what might happen if that organisation were to similarly “go rogue”.
The present attitude of the head of the EPO illustrates best that immunity is considered as giving impunity when refusing to apply a clear judgement of the ILO-AT.
It actually boils down to contempt of court when a further condition is added which has never been envisaged by the court. If people do not like messages from the staff representation, there is a delete button on every keyboard.
The attitude of the head of the EPO and its minions is despicable.
But he has the support of a majority of the AC.
One actually wonders why?
If one knows that the DPO is employed on a contract basis, one cannot expect a document emanating from the DPO being contrary to the wishes of the president.
I am convinced that it is not the DPO who has thought of this extra hurdle but the (un)human resources management.
What is going on at the EPO is tragic, and the success story of the EPO is getting ruined by pseudo managers who think they can act as if we were still in the 19th century.
How can anybody expect that examiners and their immediate support staff can work with a free mind in such atrocious conditions. I am not surprised that the EPO experiences difficulties in recruiting examiners.
Contempt of court? Well, not quite. Regarding execution of its judgements, the ILOAT’s website contains the following advice:
“The Tribunal’s judgments carry the authority of res judicata and must be executed as ruled. The parties must work together in good faith to this end. In cases where no time frame is set by the Tribunal for the execution of an order, the judgments must be executed within a reasonable period of time. In order to ascertain whether this is the case, all the circumstances of the case must be taken into account, especially the nature and the scope of the action which the organisation is required to take (see, in particular, Judgments 3656, consideration 3; 2684, considerations 4 and 6; and 3066, consideration 6). If there are serious reasons to believe that the defendant organisation will not honour its obligations or will delay execution, the complainant may, after having allowed the organisation a sufficient and reasonable period of time to execute the judgment, ask the Tribunal, by an application for execution filed pursuant to Article VI(1) of the Statute, to rule that the organisation has failed to do so and to order that appropriate measures be taken.
An application for execution must satisfy the formal requirements provided for in the Rules; the party applying for execution should fill in a specific form available on the website of the Tribunal, write a brief, provide a list of annexes as well as the annexes themselves, and submit six copies of all these documents. These applications are not subject to time limits, nor is there any obligation to exhaust internal means of redress before filing the application”.
Article VI(1) of the Statute states that:
“The Tribunal shall take decisions by a majority vote. Judgments shall be final and without appeal. The Tribunal may nevertheless consider applications for interpretation, EXECUTION or review of a judgment”.
It therefore seems that ignoring an ILOAT judgement has no consequence unless and until an application for execution is filed and then decided by the Tribunal. Even then, success for a complainant is far from certain, as they must demonstrate “serious reasons” to believe that execution of a judgement will be (further) delayed. No doubt this will give international organisations plenty of opportunities for gaming the system, for example by teasing possible solutions that arguably do not comply with the judgement in question.
Moreover, even presuming that the Tribunal decides promptly and in the complainant’s favour, it is unclear what “appropriate measures” the Tribunal can take. This is not least because the ILOAT would seem to have no power to impose anything other than financial sanctions. Also, it is important to remember that, at any point, the EPO is free to withdraw its recognition of the ILOAT’s jurisdiction.
So what can be done? Well, one thought would be to see if a way can be found to get the case before the CJEU (eg in view of the EU’s Charter of Fundamental Rights, as applied in cases such as C-402/05 P). But that presupposes the existence of a national court that will take the case (despite the immunities of the international organisation) AND be willing and able to make a reference to the CJEU. This seems unlikely.
It has been observed in academic writings that the only way that laws applicable to international organisations can be enforced is either by the organisations themselves, or through political pressure of their members. When it comes to the EPO, this means that there is no way for the laws to be enforced.
Dear Concerned observer,
When i wrote my comment, I was fully aware that the ILO-AT was not an ordinary court.
The ILO-AT has no real means of enforcement if its decisions are not implemented.
And the EPO is playing with it.
It is remarkable that the ILO-AT is literally flooded with motions stemming from EPO staff members.
There have been discussions between EPO’s management and the ILO-AT to see if something could be done. But to no avail! The EPO’s management even envisaged to levy a fee if a staff member wanted to go to Geneva.
It is tragic to see “that there is no way for the laws to be enforced”. The AC is rubber stamping what comes from the 10th floor of the Isar building, That a new member state will join the EPC can even render things worse, as this further state will be very keen to get a part of the “cooperation” budget!
The EPO is indeed free to withdraw its recognition of the ILOAT’s jurisdiction. But then EPO’s staff would be subject to the arbitrary decisions of the president. He is by no means bound by a decision of the internal appeals committee and can even aggravate sanctions if he is displeased with the result of the internal appeal committee. This has happened, so it is not a mere theoretical possibility.
After the salaries and pensions having been frozen for a while on the basis of a fake financial study and an amendment to the way salaries have been calculated, a salary increase is foreseen to compensate for the inflation. But the president has already announced that the production will have to increase with in parallel with the salary increase. This is typical of what was going on in the 19th century.
The salaries at the EPO are by far not as good as they used to be. Combined with the fact that an open ended contract can only be obtained after two five year contracts it also explains why the EPO experiences difficulties in recruitment.
When looking at the way the job of an examiner is presented on the EPO’s home page, nice buzzwords are used, but nowhere is anything mentioned about the 5 years contracts and the way disputes between staff and management can be settled.
A good scientist or engineer with some knowledge of foreign languages is not dependent on the EPO to find a good job. Very few candidates with a family and kids will envisage coming to the EPO and at the same time severing any ties with the social protection and pension system from its country of origin.
The “financial study” was a masterclass in lies and misrepresentations. It does not matter that there is already clear evidence that its “predictions” were nothing more than a managerial fantasy. This is because it was only ever intended to serve the purpose of further reducing the EPO’s outgoings (to its staff) and thereby increasing the flow of funds into the EPO’s coffers … to be disposed of as the management and the AC see fit.
It is a sad state of affairs when such a clearly meritless “study” is simply rubber-stamped by the AC, with none of the delegations apparently voicing any concern or dissent. This is the part that I find hardest to understand. However, it has become clear to me that even those AC delegations that once might have expressed an independent view have quickly been taught the error of their ways. The only question is how that has been achieved. Whilst there is no doubt that money has been the key to achieving this, the veil of secrecy that covers all dealings with international organisations makes it hard to understand from where and to which organisations (or individuals??) the funds have flowed. If it were possible to drag that information out into the light of day, then there might just be a chance of the AC remembering that it is supposed to act as the EPO’s overseer … and not its poodle!
If the EPO were not an international organisation, but a EU agency like the EUIPO, would any of this be possible?
(To clarify, I do not necessarily think that the EPO ought to be a EU agency, and I am very well aware that such a change could be difficult to bring about, to put it mildly.)
The answer to your question is a clear NO.
Means of redress for EU staff members is at the end the CJEU.
Many years ago the commission had agreed with staff unions an increase in wages within a given range. The Commission decided to go 0,1% above the lower value of the range. Following a complaint before the CJEU the Commission was sentenced to increase the salaries with the average value of the range.
Such a decision is unthinkable at the ILO-AT as its role is mainly to check that the procedure has been respected. Any “political” decision like the one of the CJEU would never be taken by the ILO-AT.
It is only if the procedure has not been correctly followed or if it is arbitrary, that the ILO-AT will do something.
The CJEU has certainly the means to impose its decision to the commission.
A situation like at the EPO is unthinkable at the EU.
The ILO-AT is the only possibility for a final judicial decision for the staff of most intergovernmental organisations. It is open for instance to UN staff or ESA staff.
When hiring at such an organisation, most of staff are not aware of this drawback.
Could a complaint be made against the individual EU states for not requiring their members of the AC to ensure that the rule of law is observerd, with the CJEU having a final say?
It might be linked to the concept of fiduciary duty. One can accuse the AC members of perpetrating the rule of of a president who loses the members countries money by taking illegal decisions. But the ministries that send the AC representatives will surely side with the AC reps. Nobody wants to rock the boat at this level.
Surely the long-term solution is to set up the EPO as the Patents Division of the EUIPO granting patents (unitary?), with recourse to the General Court of the EU for applicants and protection for employees under the EU schemes. Democratic legitimacy and oversight are then provided by the European Parliament.
Dear LKJL,
Your suggestion might be interesting, but it would boil down to turning back the wheel of history.
In the 60s of the 20th century, there have been no less than four drafts of a Community Patent Convention. None of those drafts ended up at a diplomatic conference.
One major problem was the closed character of this possible agreement as it was reserved for European Community EC member states. European countries which played an important role in patents, due to the fact they had a substantive examination system (e.g. SE, AT), were at the time not member of the EC.
Other reasons were language requirements (an official document of the EC/EU should in principle be available in all official languages of the member states), the fear of forum shopping to name the most preeminent. The UK, although at the time a young member state, was also not keen on this idea and had a quite obstructive attitude.
It is the pressure of the PCT signed in 1970 which created the fear of some EC/EU member states of being flooded by unexamined patents which pushed the European countries to have a new look at the situation. At the time, the PCT mainly consisted of Chapter 1.
The solution of the problem was, according to my information, proposed by Mr. Kurt Haertel, at the time head of the German Patent Office.
The proposal was to create two conventions, one which was open to non-EC/EU member states which would lead to the grant of a European patent which was equivalent to a national patent. The second convention was meant to deal with the rights of such an EP within the EC/EU.
All those efforts have been successful and ended in 1973 with signing of the EPC and the EPO opened its doors on 01.01.1978.
Another reason why a breakthrough was achieved with the EPC/EPO was the limitation of the official language of this to be created EPO to three: GB, DE and FR.
If you look at the “travaux préparatoires” you will find a lot of documents with reference to these various drafts within the EC and the meetings which took place in Luxembourg under the aegis of the EC.
You know now why the passage between the Pschorr-Höfe buildings is named Kurt Haertel Passage.
There has been a diplomatic conference in 1975 in Luxembourg about the community patent. This was again a closed convention. The community patent was a patent granted by the EPO and which would have been common to all EC/EU member states. The Luxembourg conference led to no tangible result and the project of a common patent was dead for many years. The reasons were still the languages and the fear of forum shopping.
It took up to 2012 and 2013 to come back with the idea of a patent valid for all some EU member states in the form of two EU Regulations, on the translations and on the enhanced cooperation, as well as the UPCA.
It seems thus not thinkable to return to the situation before the creation of the EPC as the EPC has now much more member states as the 27 EU member states. Politically the idea is dead-borne.
It’s very disappointing to see that the present president is not al all better than the previous one. The two choices made by the AC one after another point to a structural problem of the EPO. I dream of a day when all the international organisations will be subjected to the principle of “three strikes, you’re out!” but that will never happen. That would mean that if an organisation loses three lawsuits, then the signatories of the illegal decision are fired. That would suppose also that the ILOAT decision should be extremely fast and wouldn’t mean anything to the president if (s)he’s in the final year but at least it would clean up the HR and the lawyers who signed, which would be no mean thing. Something must be done against serial abusers of the law.
“Something must be done against serial abusers of the law”. I could not agree more. However, the foxes are in charge of the hen house. The AC delegations, and likely their political masters, have decided to turn a blind eye to all of this. Ditto for the Dutch Supreme Court and the ECtHR.
Sadly, for an international organisation, the EPO is not alone in “going rogue”. Indeed, its breaches of the rule of law are arguably not as troubling as breaches by other international organisations (such as WIPO, under the leadership of Francis Gurry, who, amongst other things, was accused of breaking United Nations Security Council sanctions by sending IT equipment to North Korea and Iran; see https://en.wikipedia.org/wiki/Francis_Gurry).
We can therefore conclude that there are strong ground for limiting the immunities granted to international organisations, so that there is at least one reliable route (namely legal action before a national court) that can be used to address the most egregious breaches of the rule of law. However, unless and until that happens, or a national supreme court is prepared to interpret immunities as being so limited, the only hope is that the politicians in charge of all of this suddenly find a conscience and grow a backbone. Forgive me, but I will not hold my breath waiting for this to happen!
Something must be done, I read. But the human rights of staff at the EPO do not impinge on the consciousness of elected politicians, their voters and their acolytes on the EPO’s AC nearly as much as the human rights of those unfortunate millions of people currently being abused by a whole host of nation States, all around the world.
In the order of priorities for elected politicians worried about getting re-elected, what’s happening at the EPO is so far down the list of concerns as to be invisible. Their time is precious. They are devoting it to other things, and will continue to do so. Nothing is going to be done about it, any time soon.
Besides, ever-increasing divident pay-outs from the EPO increasingly encourage the Member States not to rock the AC boat.
Besides, if the UPC is a roaring success, quality maintenance at the EPO can be dismissed as mattering less than it did.
The main flaw in the system of legal protection for EPO staff can be summed up in a single phrase: “lack of injunctive relief”.
A legal system purporting to protect the rights of its stakeholders which operates without the possibility for injunctive relief is inherently defective.
It’s like a bird trying to fly on one wing.
Thus we end up with situations like the one currently under discussion.
The EPO management can enact measures which breach the fundamental rights of staff.
These will remian in force for years while the files gather dust in Geneva.
Finally – almost a decade later – the breach of fundamental rights will be detected and the impugned measure set aside.
By that time most of those directly involved will either be retired or have moved on to new positions (such as the former head of the German delegation who is now the EPO’s VP5).
Truly an absurd and Kafkaesque situation.
But as Max Drei has noted, a situation which is unlikely to change.
Where there is no will, there is usually no way …
What most commentators appeared to have missed is that a legal protection deficit similar to that afflicting EPO staff is likely to cast a shadow over the UPC.
The EPC at least anchors a right of access to the ILOAT in its text.
However, in the case of the UPC agreement I have been unable to find any provisions governing the matter of employment disputes.
Before anyone barks about EU law, I would caution about placing any reliance on that.
The UPC is not an EU institution.
It is an international court established by an agreement amongst a group of EU states.
There is no reason to assume that EU law applies to employment relationships in such an institution.
I also cannot find any UPC document resembling the EPO’s Staff Regulations so it’s not clear what mechanisms – if any – exist for the resolution of staff grievances.
But why worry about such minor niggling details as the rights of employees when you’re busy trying to set up a supranational gravy-train for judges, lawyers and their corporate lobbyist buddies … 😉
Dear One-Winged Bird,
The UPC is indeed silent about provisions governing the matter of employment disputes.
We will only know which provisions are governing the matter of employment disputes when the Staff Regulations of officials and other servants of the Court of the UPC will be known and published.
These will be decided by the Administrative Committee, cf. Art 16(2) of the Statute of the Court, which is part of the UPCA.
As far as judges are concerned, Art 10(1) of the Statute of the Court provides that “A judge may be deprived of his or her office or of other benefits only if the Presidium decides that that judge no longer fulfils the requisite conditions or meets the obligations arising from his or her office. The judge concerned shall be heard but shall not take part in the deliberations.” There are no means of redress for a judge to be found in the UPCA and its ancillary texts.
At least a judge which risks being removed from his office will be heard, but as such he will have no immediate means of redress. This is somehow surprising.
It is thus not wrong to think that the only means of redress open to a judge will the same as those offered to any staff of the UPC.
The situation is thus similar to that of the members of the boards of appeal of the EPO.
At the EPO there is a complicated system of means of redress with first a managerial review procedure followed by an Internal Appeals Committee and ultimately the possibility to address a complaint to the ILO-AT once all internal means of redress have been exhausted. It demonstrates indirectly that members of the EBA are anything but independent.
The problem at the EPO is that the president is not bound by a decision of the Internal Appeals Committee, even if it is taken unanimously. He can decide what he thinks fit. This has in the past ended with the aggravation of sanctions decided for instance by the Internal Disciplinary Committee even reviewed by the Internal Appeal Committee. I can thus fully endorse what you call a “lack of injunctive relief”.
It is to be hoped that at the UPC a system of internal appeals will be established with a second instance outside the UPC. But it will pose a legal problem: what could be the composition of such an internal appeals committee? A “joint” mechanism of designation like at the EPO?
This leads to the comment that the ILO-AT has ruled that the composition of the internal appeals committee of the EPO decided by the preceding head of the EPO was illegal. This problem is not yet solved and is more important than the possibility to send mass e-mails.
Such an outside instance could be the ILO-AT which acts for most of the existing intergovernmental organisations. But the ILO-AT has to accept the designation and to decide on the fees it levies for complaints stemming from an organisation.
As the UPC is not an EU institution, it clear that EU law will not apply to employment relationships at the UPC. It is thus also not wrong to think that the CJEU will not be the last instance in matters of disputes of staff members of the UPC, including judges.
Staff regulations and salary scales have been elaborated within the EPO by a department headed in the past by Madame UPC or la Reine Margot.
It is therefore quite surprising that some well-known national judges and all the technical judges have accepted to sit in a court for which no staff regulations even exist.
The promises, especially as far as salaries and perks are concerned, made to all those people must have been generous enough for them to hire on such wobbly grounds.
It confirms once more that the UPC has not been set up in order to benefit society in general, but for the benefit of very specific groups quoted by yourself.