Two months after a series of ILOAT judgments stating that former EPO president Benoit Battistelli abused his power by implementing new rules to restrict the rights of staff members to strike in 2013, the EPO has detailed in which way it intends to carry out the judgments.
According to a SUEPO report, EPO president António Campinos published a communiqué on 14 September 2021, explaining that the Office intends to apply the outcome of the judgments to all staff on strike since July 2013 only insofar as they concern excessive strike deductions or for unauthorised absence on 2 and 3 July 2013. The payments should be completed by the end of the year.
However, no moral damages will be awarded by the EPO to those who neither filed a complaint in front of the Tribunal nor an application to intervene.
An important element in the judgments (see this post) was the June 2013 decision CA/D 5/13 of the EPO’s Administrative Council, “creating a new Article 30a of the Service Regulations for permanent employees of the European Patent Office concerning the right to strike and amending the existing Articles 63 and 65 concerning unauthorised absences and the payment of remuneration. (…) Paragraph 10 of Article 30a authorises the President to lay down further terms and conditions (…) Relying on that provision, the President issued Circular No. 347 containing ‘Guidelines applicable in the event of strike’. This text entered into force on 1 July 2013, at the same time as CA/D 5/13.”
The ILOAT concluded that Circular No. 347 was unlawful and also that the EPO management had excessively reduced salaries of staff members who participated in strikes. In case 4433 for instance, a lawfully called strike was illegally considered as unauthorised absence and not as a day of strike and the complainant’s salary was punitively deducted by 1/20th instead of 1/30th.
In the various cases concerning strike limitations, the ILOAT – apart from ordering reimbursement of excessive strike deductions – awarded moral damages to the complainants amounting to between 2000 and 8000 euros. It is now clear that these moral damages will not be extended to all staff. According to SUEPO, in “a meeting with the Central Staff Committee (CSC) on 15 September, Mr Campinos even strongly excluded any form of apology from the Organisation to its staff.”
A SUEPO publication, which was distributed to staff last week, shows the strained relationship between EPO president Campinos and staff representatives. According to the trade union, Campinos burst out in anger during a meeting on the strike judgments, when the Central Staff Committee suggested he should take responsibility for mistakes of the past by apologizing to the staff:
“Meeting with the President: Lessons (not) learnt
On 15 September, the staff representation could address for the first time directly with Mr Campinos the ILOAT strike judgments of 7 July.
The staff representation argued that all EPO staff had been adversely prejudiced by the violation of their fundamental right to strike and by abuses of power. An International Organisation cannot take a fundamental right from its staff, give it back more than 8 years later and pretend that nothing happened. In his reply, Mr Campinos threatened to reduce cash injections into the pension reserve funds if he were to grant moral damages to all staff. Mr Campinos added that we should understand that in our Organisation, it’s just about moving money from one place to another. One could expect that upper management could be held accountable for designing HR policies violating fundamental rights, but Mr Campinos preemptively warned anyone who could point the finger at his services which he fully entrusts with further reforms.
The staff representation then suggested that the Organisation takes responsibility for mistakes of the past by at least apologizing to its staff. Mr Campinos bursted out in anger and shouted that he would not apologize and that we would never get an apology from him. With this statement, Mr Campinos confirms that he not only takes full responsibility for the continued policies during the first 3 years of his mandate, but also fully endorses the Battistelli administration. Mr Campinos reproached the staff representation to be not constructive when willing to discuss events that happened ages ago and added that we may have won this one but we don’t win 8 out of 10 of our cases. Here, Mr Campinos confused quality and production: in terms of legal procedures, some are more fundamental than others.
In the meeting, Laurent Germond, Director Employment Law, recalled that the Tribunal’s statute does not foresee any class action procedure and that complaints will remain of an individual nature. The Office intends to apply the outcome of the judgments to all staff on strike since July 2013 only insofar as they concern excessive strike deductions or for unauthorised absence on 2 and 3 July 2013.”
According to the trade union, 38 pending cases before the ILOAT and the filing of hundreds of applications to intervene to the ATILO since the announcement of the strike judgments on 7 July may have been one of the reasons for Mr Campinos to extend the outcome of some of the judgments to all staff.
A video conference planned for 30 September 2021 by President Campinos to discuss the strike regulations and a memorandum of understanding was cancelled as SUEPO wasn’t allowed to be accompanied by its legal advisor, and topics that had been brought forward by SUEPO such as the new career system ware excluded from the agenda.
The EPO didn’t react to a Kluwer IP Law request for comment on the issue of the ILOAT judgments and/or the SUEPO’s publication about the meeting of 15 September.
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Question: has Circular 347 been set aside by the EPO? That is, has the EPO now amended its Service Regulations and associated instruments to remove all of the restrictions on the right to strike that were held by the ILO AT to be unlawful?
A careful analysis of the decision is necessary first (December council), and a thinking on alternatives (March council), a study on options and a guiding consultation (June, likely September Council), study on financial impact (December council), the obligatory (tick box) internal consultation on the draft documents, before final documents appear and are decided on in the June council. But for political reasons, the procedure needs to be slowed, so implementation will be in a January (hence decision must be done by a december council) and of course the (re-)election process should not be disturbed by such a topic, hence move all back for another half year.
And it may not be that the EPO is without rules for such a long time, hence the circular remains marked as valid for any internal issues.
I had suspected that this would be the case.
Even a cursory review of Circular 347 by anyone knowledgeable about employment law would have revealed that it contained numerous unlawful restrictions on employee’s rights. Thus, it was always clear that those behind Circular 347 were either incompetent or had malign intentions (and simply do not care that they would need to break the law to achieve their objectives). I think that we can now definitively rule out the former explanation.
If, as expected, the AC plays along with all of this, then the representatives of national offices on the AC will be undeniably complicit in denying EPO staff fundamental rights that they are guaranteed under national, EU and international (ECHR) laws. In this event, I would have thought that EPO staff really ought to have a cause of action before the national courts against those representatives. If they do not, then I think that we can safely conclude that the EPO truly has become Europe’s answer to Guantanamo Bay.
The EPO has only promised to provide redress to individuals who participated in “unsanctioned” strikes and were then subject to salary deductions according to Circular 347. It therefore seems that, at this time, the EPO has every intention of maintaining in force paragraphs 1 to 4 of Circular 347, ALL of which were found by the ILO AT to represent unlawful restrictions upon the right to strike.
Under national laws, this would all have worked out very differently. This is because COLLECTIVE bargaining – which is unavailable to EPO employees – would have prevented Circular 347 from ever coming into force. What has instead happened under the “laws” of EPOnia is that:
(a) the staff have been forced to operate under clearly unlawful restrictions on their right to strike;
(b) certain brave members of staff have nevertheless exercised their rights and have been subject to punishments under an unlawful regulation;
(c) some EIGHT YEARS after it entered into force, the ILO AT vindicates EPO staff by finding Circular 347 to be unlawful (on multiple grounds); and
(d) the EPO responds to the judgement of the ILO AT by maintaining in force all of the provisions that were found to be clearly unlawful.
Aside from the fact that the EPO is clearly thumbing its nose at a judgement it should be obliged to respect, there is one important issue that should not be forgotten. That is, the EPO has trampled – and is STILL trampling – upon the right to strike of those members of staff who have been dissuaded from exercising their rights by the unlawful provisions of Circular 347.
This calls into question all of the changes to working conditions (including changes to the Service Regulations) that have been rammed through by the EPO since Circular 347 has been in force. This is because it is now impossible to know whether, if granted unfettered access to their right to strike, EPO staff would have been able to either fend off entirely, or modify the provisions of, any of those subsequent changes.
In other words, EPO staff’s lack of access to true COLLECTIVE bargaining has harmed the staff in incalculable and irreparable ways. This amply demonstrates why the 2017 decision of the Hoge Raad (in SUEPO vs. EPO) was so wrong-headed. That is, a comparison of what would have happened under national laws to what actually happened under the “laws” of EPOnia makes it plain that seeking recourse to ILO AT is most definitely NOT a “sufficiently reasonable alternative” for the EFFECTIVE protection of the right to collective bargaining.
I am not particularly surprised at the refusal of EPO management to apologise for imposing, or at least perpetuating, unlawful restrictions on the right to association. However that refusal demonstrates that the EPO’s management adopts a belligerent attitude towards its staff even when it is clear that, by effectively acknowledging past mistakes, an apology might help to ease social tensions. The EPO’s very limited application of the outcome of the ILO AT judgements simply rubs salt into the wounds, as it is plainly an attempt to deprive the affected staff of the moral damages to which they are entitled.
My recollection is that Campinos was selected by the AC on the basis that he would restore social peace at the EPO. If this episode is anything to go by, he still VERY far from achieving that objective. One would think that the AC would take this into account when considering whether to renew his term of office for another 4 years. Similarly, one might think that the AC would also take note of the huge outcry from sections of the patent profession against certain policies (such as requiring unnecessary amendments to the description or making VICOs mandatory for oral hearings) that Campinos has imposed with little or no consultation. However, that would be to confuse the AC with a regulatory body that actually gives two hoots about the EPO’s staff or its users.
The AC is already complaining that the no. of grants is not increasing anymore (empty cupboards – we cannot anymore)
They don’t care.
And the money for any “moral damage” will come from the EPO, and thus from the money the EPO would otherwise inject into the RFPSS, thus from staff itself again.
(no, it will not be taken from the bonuses of management who made the wrong decision, nor from the EPO-TIF (investment funds), because not increasing that will lead to a cut in kickback bonuses – hence staff will have to pay for their own moral damage management inflicted upon them)
I think the AC are just paying lip service to social peace and they’re perfectly happy with what has turned out to be just a slight variant of the Batistelli regime.
Here we have another version of the game: the tail is wagging the dog!
What happened under his predecessor is continuing!
When the present tenant of the 10th floor has been appointed he was meant to restore social piece at the EPO.
If the AC had the guts he would have send him back to the Iberian peninsula a while ago. But the AC is gullible to everything that was presented to it by the EPO management.
Not only the social situation has degraded, but it has worsened dramatically.
When you know hear that buildings are transformed in open space offices it it high time to realise that the people in charge at the EPO have no clue of what people, and especially examiners, are doing.
Planning a kind of virtual EPO in which members of deciding bodies are not even sitting together when they decide is an heresy. But the AC has happily endorsed Art 15a RPBA20.
It can be expected that G 1/21 will be a good successor of G 2/19 and G 3/19.
It is not a question to merely repay what has been removed in excess.
The whole strike regulation has to be amended to conform to the ILO-AT judgement. It is simply illegal and it does not matter whether it has been adopted by the AC or not.
It is relatively rare that the ILO-AT considers a general measure to be illegal.
In general it contends itself to decide whether the measure adopted had followed the correct legal way.
It rarely takes a political position like here.
There is another problem lurking in the background. The EPO has unilaterally decided to suppress the specific invalidity insurance for which staff has paid premiums for many years.
This premium was there to guarantee a lump sum in case of invalidity.
The lump sum has been removed, but the EPO kept the premiums staff had paid.
Another way to restore social peace?
That’s less problematic than it seems.
Staff did get a refund on premiums which were not used to finance the old scheme.
The new scheme has a continued salary, which is tax-free, the old scheme had payouts which were not tax free.
The new scheme has issues, but the old one had too.
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