The EPO violated the fundamental right of free association of its staff in 2014 by giving (former) president Benoit Battistelli the power to determine the detailed conditions relating to the staff committee elections. The Administrative Tribunal of the International Labour Organization (ILOAT) has ruled this in its judgment 4482, which was published after its 133d session late January. The decision, together with two other ILOAT judgments in which high moral damages were awarded, is yet again a display of the lack of legal protection and democracy at the EPO in the Battistelli era.
Last year, the ILOAT had already ruled that Battistelli abused his power in July 2013 by restricting the rights of staff members to strike (case 4430), see also this blogpost. At the time the ILOAT ruled that Circular No. 347, regulating the restrictions, was unlawful. This time Circular No. 355 was quashed by the ILOAT, which contained implementing rules for a “social democracy” reform introduced by the Administrative Council in decision CA/D 2/14 on 28 March 2014. Below some central considerations of the ILOAT:
“7. (…) Before its amendment, Article 35 provided that the regulations regarding the election of representatives to a local section (broadly the same as the new Local Staff Committee) were to be determined by a general meeting of the permanent employees of the place of employment for which the particular local section was constituted (Article 35(6)(a)). The Article created a similar mechanism for the adoption of regulations by the staff for the election of members of the Central Staff Committee: Article 35(6)(b).
The amendments effected by decision CA/D 2/14 removed from the staff the role of determining regulations for conducting elections and provided the ballot be conducted by the Office (Article 35(5)(a)), and invested in the President a power “[to] determine the detailed conditions relating to the Staff Committee elections” (Article 35(5)(c)).
8. There is a consistent line of case law of the Tribunal which makes clear, in a variety of ways, that organisations should not interfere in the affairs of a staff association or union (however described) and the association or union must have the concomitant right to conduct its own affairs and regulate its own activities (…). It also includes the right to freely elect their own representatives. (…)
10. (…) The regime in place before decision CA/D 2/14 for the conduct of elections respected the right of staff to freely associate and the new regime did not.”
The ILOAT decided the amendments introduced in article 35 will be quashed but without retroactive effect, and that “Clause 6 of Article 35 of the Service Regulations in force before decision CA/D 2/14, will apply, mutatis mutandis, to the future election of staff representatives for the Central Staff Committee and Local Staff Committees (…)”
Although case 4482 has consequences for the whole organisation, there were decisions in cases of two EPO staff members which deserve attention as well as they show the treatment some staff members suffered after they came into conflict with the management.
Single parent
The ILOAT was particularly critical in case 4491, concerning a EPO staff member who had challenged the decision to dismiss her with immediate effect for serious misconduct. Between 1 July 2013 and 27 May 2016 she “took more than 200 days of parental leave. The allowance she received was calculated at the higher rate based on her declaration that she was a single parent.”
The EPO came to the conclusion that she was not, and that she had unduly received a higher allowance on the basis of her declaration, which was estimated at 3658 euros. The women, when confronted with the allegations, declared she had not knowingly breached the rules “and emphasized that, as soon as the matter was raised during the interview, she withdrew her request for parental leave at single parent rate. She offered to reimburse the amount that was allegedly unduly paid to her.”
To no avail: she was initially suspended and “By letter of 7 September 2017 the President of the Office informed the complainant that her behaviour amounted to serious misconduct” and that he had decided to dismiss her. “The complainant was informed that this decision would take effect immediately and that she remained excluded from entering the EPO premises.”
Now what was the situation? As the ILOAT explains, the “complainant and her ex-husband were, on her account, living in contiguous semidetached residences (one owned by her and the other by her ex-husband) though they created access at two points from one to the other” for the benefit of their three children. But did that mean the woman was not a single parent and wilfully committed fraud? The ILOAT comes to a completely different conclusion. Some of the findings of the tribunal:
“6. Underpinning these allegations was the Report of the Investigative Unit of 22 May 2017 (the Investigation Report). On a fair reading of the Report, insofar as it concerns the claim for and payment of parental leave, it manifests a distortion of the evidence favouring the allegation of misconduct. (…)
7. Similarly, paragraph 102 contained the observation that: “[The complainant] admits that she was living in the same house as her former husband”. This is a distortion of what the complainant was saying. The expression “same house” involves an unfair synthesis of the complainant’s explanation of her living circumstances. (….) The complainant provided a detailed and credible explanation concerning the ownership of each of the residences supported by extrinsic evidence. No simplistic admission as referred to in the Investigation Report was made by the complainant.”
“13. (…) “The discussion (…) commenced with what was described in the letter as the “main facts” which the Disciplinary Committee had established concerning the complainant’s family situation. This included that the complainant and her ex-husband had planned and created a family and had been “continuously residing together” in Germany and subsequently the Netherlands. This is said to have been established by paragraph 66 of the opinion of the Disciplinary Committee.
While that paragraph does refer to the creation, in the Netherlands, of internal access points between two houses, no finding of fact was made by the Committee that the complainant and her ex-husband had been residing together. The letter does not identify any other basis on which this factual conclusion might be founded and it was completely at odds with what the complainant had repeatedly said, including in paragraph 58 of her request for review, which provides a credible explanation of her circumstances. They were that she had no intention to own a common property with her ex-husband and raise their children together but rather wanted to ensure that, within the applicable law, she had emergency support and access to their father for her children.
For the President to have reached this conclusion about “residing together”, he must have been satisfied what the complainant was saying was a lie and that by reference to other unspecified evidence he was satisfied, at least inferentially, beyond reasonable doubt the two individuals were residing together. It is difficult to see how this conclusion can be justified, let alone at the standard of beyond reasonable doubt. (…)”
“15. The next admission was said to be that the complainant confirmed that her ex-husband “was participating in the caretaking and upbringing of [the] children as ‘[he] was babysitting them’ from time to time”. No such admission was made. (…) To the contrary, the complainant was seeking to demonstrate how very little the ex-husband actually did.”
“20. In the present case, beginning with the Investigation Report and concluding with the impugned decision of the President, there has been a clear reluctance, or indeed refusal, to accept what the complainant said was true. (…)”
“23. (…) no specific moral damage is established (…) beyond the manifest moral damage, involving considerable personal distress, occasioned to the complainant by her being investigated, charged with fraudulent misconduct, found to have engaged in that misconduct and ultimately dismissed. Those moral damages are assessed in the sum of 30,000 euros.”
The ILOAT decided the employee had to be reinstated with immediate effect and was also entitled to costs assessed in the sum of 8000 euros.
In three other cases, all concerning a former staff member, the ILOAT decided she should receive a total amount of 68.000 euros in moral damages, plus 200.000 euros in material damages “less any amount already paid and less any income the complainant received from other employment in the period 1 August 2014 to 1 February 2017.”
Just like decision 4491, the three judgments 4488, 4489 and 4490 show the lack of interest and respect of Battistelli when it came to treating staff members correctly and with respect.
Case 4488 focuses on a decision in 2012 of the former EPO president to transfer a staff member to a lower grade post. She appealed and the Internal Appeals Committee “unanimously found that the level of duties assigned to the Senior Advisor post did not correspond to the requirements for an A6 grade post as laid down in the job description of the Service Regulations. Consequently, it found the decision to transfer the complainant unlawful in that it did not sufficiently respect the complainant’s dignity. A majority recommended to set aside the decision and refer the case back to the Office, and to award her 25,000 euros in moral damages as well as costs. A minority recommended to set aside the decision, to reinstate the complainant in a “proper” A6 post, and to award her 35,000 euros in moral damages as well as costs.”
Even if the Appeals Committee supported her, president Battistelli ignored this: “By a letter of 12 August 2014 the complainant was informed of the decision not to follow the opinion of the Internal Appeals Committee and to reject her appeal as unfounded. The Administration explained that the decision to transfer her was justified by the overriding interests of the EPO and that the generic job description did not exclude the possibility to assign an A6 employee to a post whose duties are not listed in the generic description. In its view, what mattered was that the duties assigned did correspond fully to an A6 level, which in its view was the case.”
By that time Battistelli had already announced (7 April 2014) that the A6 position the staff member had held would cease to exist. Three weeks later, at the end of April, she had submitted a letter of resignation “based on the state of her health.”
In its decision 4488, the ILOAT judged that the assessment made by the Internal Appeals Committee should have been followed and awarded moral damages in the sum of 35,000 euros to the former staff member. “This is a reasonable and appropriate figure. The complainant is entitled to costs for these proceedings, in which she represented herself, which the Tribunal assesses in the sum of 1,000 euros.”
Case 4490
In case 4490 the complainant challenged the amount of damages awarded for the unlawful decision not to renew her contract as a Principal Director and to reinstate her in a lower-level post instead. The ILOAT judged the EPO had to pay her 200.000 euros in material damages “less any amount already paid and less any income the complainant received from other employment in the period 1 August 2014 to 1 February 2017” – the date of her pension. This was far higher than what had been paid earlier by the EPO, who was also ordered to pay 20.000 euros in moral damages and 1000 euros in costs. Just one quote from the ILOAT’s decision:
“18. (…) It is tolerably clear from the terms of the complainant’s letter of resignation of 29 April 2014 and the contemporaneous medical certificate from her treating physician (the contents of neither, as they related to the effect of events on the complainant, were challenged by the EPO) that the decision to abolish her post and not to renew her Principal Director contract had a serious and negative effect on the complainant’s health and well-being culminating in her resignation.”
Case 4489 centered on one specific issue in the respectless treatment the staff member had to endure: the unwillingness of Battistelli to endorse and sign two very positive performance management reports she received for 2011 and part of 2012.
“10. (…) The complainant was a senior member of staff and the President’s refusal to complete the reporting process was arbitrary. That refusal persisted after he transferred the complainant to another position over her opposition and in the period leading up to a decision not to renew her contract. The moral injury caused to the complainant by the President’s arbitrarily refusing to complete the reporting process, is obvious.”
Conclusion
Years after the departure of president Battistelli at the EPO, the ILOAT cases keep unveiling details about the climate of fear and harassment under his presidency which have been so often described by staff members. Although he was succeeded in July 2018 by António Campinos, one of Battistelli’s closest allies Elodie Bergot, who used to be Battistelli’s principal director for human resources, is currently chief corporate policies officer. Some have linked the recently announced reshuffle at the EPO, in which Bergot will apparently face a considerable loss of influence, to the ILOAT decisions.
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Question: how many fundamental rights enshrined in the ECHR can the EPO violate without consequence for the individuals responsible?
The EPO has now been found (by a Dutch court, and the ILO-AT) to have violated two rights enshrined under Article 11 ECHR, namely the right to collective bargaining and the freedom of association. The consequences for doing this? Essentially nothing, other than relatively small “fines” imposed by ILO-AT and paid for by the Office (ie by funds provided by the EPO’s users).
Also, in case Art. 23 1/16, the EBA held that the then President had violated the independence of the judiciary as guaranteed by Article 23(3) EPC. This corresponds to a violation of Article 6 ECHR. The consequences for the former President? None whatsoever.
Indeed, due to their privileges and immunities, it is difficult to imagine any of the responsible individuals ever suffering any adverse consequences, even for deliberate and malicious further violations of rights enshrined in the ECHR.
Of course, one consequence of the ability of the EPO’s management to act with impunity is that there will never be any access to TRUE justice for those whose human rights have been violated.
Exhibit A: the ILO-AT’s decision to effectively approve the application of the UNLAWFUL provisions of CA/D 2/14 for the nearly EIGHT YEARS that it was in force prior to judgement 4482.
Exhibit B: the Dutch Supreme Court’s decision to “pretend” that recourse to ILO-AT was an acceptable alternative to the right to collective bargaining. The insanity of that pretence is further reinforce by ILO-AT’s judgement 4482, as access to true collective bargaining would have prevented unlawful restrictions on the freedom of association from ever entering into force … as opposed to remaining in force for almost a decade before being quashed.
However, perhaps the most worrying consequence of the immunity / impunity enjoyed by the EPO’s management (and the AC) is the fact that – as amply illustrated by the above-mentioned cases – there is literally nothing to prevent the EPO from engaging in further, potentially much worse violations of fundamental human rights.
So why do the Member States not only tolerate this situation, but also participate (eg by way of CA/D 2/14) in enabling the abuses of human rights at the EPO? Have they no shame? Are they not obliged by their national laws to take action to prevent such abuses?
Perhaps a withholding of the former President’s pension rights might be appropriate.
Through the decisions of the ILO-AT it has now become abundantly clear that the tail was, and still is, wagging the dog.
It is furthermore a scandal that the strike ruling has not been rescinded and still applies. Rather than resolve the problem, the present tenant of the 10th floor prefers to enact regulations relating to the UPC months before they are actually needed!
Art 4a has been superbly ignored by the two last people who rule the EPO as if it was their own property, or the money spent come from their private sources.
This is a further series of scandals!
In the past there have been years when the AC dared not to approve the president’s budget or some projects, like the new building of the EPO in Voorburg/Leidschendam, which ended in a round receptacle.
Years later, when the tower was so derelict that a new building had to be erected. It was not just a building, it was a prestige object, which was inaugurated whilst not finished, just to give the then tenant of the 10th floor the pleasure to meet the King of The Netherlands. Vanity is word which must be taught constantly at the ENA.
Since 2010 the tail is wagging the dog as the tenant of the 10th floor used the cooperation budget in order to get the votes in the CA as he wished. This has not changed with the new tenant of the 10th. I would say it is even worse. With online meetings of the AC, the possibility has been restricted, but at some time the members of the AC coming to Munich could be covered by the EPO insurance, and it is said that some dentist’s practices around the EPO were quite busy when there was an AC session.
Such behaviour of the heads of the EPO is only possible due to the fact that in lots of votes, “smaller” countries have the same weight as the big contributors in applications. The EPO has grown too quickly without giving itself a mechanism commensurate with its expansion. The same is actually happening with the EU. Nothing against small countries, but they should be aware of their responsibility and not just rubber stamp proposals of EPO’s management.
In order to increase the perception of the independence of the BA, they were exiled to Haar as retaliation. Now the BA should come back into town. And still, for a large extent, the same delegates sit in the AC. I would not bank that those people have a high notion of self-respect as they would now decide the contrary to what was decided a few years ago. But is the meantime it has cost the users of the EPO millions of € which have been wasted just for the vanity of an egomaniac.
The former egomaniac had already reduced the salaries and wages. His successor has continued this destructive endeavour on the basis of fake financial studies which have been gobbled by delegations fearing a reduction of the cooperation budget.
Nowadays, the head of the cooperation budget is the former chef de cabinet of the egomaniac. He can thus decide directly and does not have to send instructions down to DG5.
With the “New Normal” and the teleworking scheme which should have been approved in the December session of the AC, some resistance of the bigger nations, e.g. Germany, The Netherlands, France and Switzerland (sorry if I forgot some) have started resisting. It is to be hoped that the AC comes back to his role of control institutions. I would be ashamed when realising that what I have decided is clearly considered illegal by the ILO-AT.
I reminds me an alleged say of Mao: the fish rots from the head.
And so we now have further, concrete proof that the EPO never intended to stick to the crucial, but both ridiculous and unjustifiable, assumption underpinning the 2019 “financial study”, namely that fees would not increase in line with inflation:
https://www.epo.org/law-practice/legal-texts/official-journal/2022/01/a2/2022-a2.pdf
It is beyond a joke that the EPO is still basing its plans upon a “financial study” whose fundamental assumptions have consistently proven to be well wide of the mark. The real driver behind the creation of such a study is therefore becoming increasingly clear, namely the provision of a pretext to further degrade the working conditions and remuneration of the EPO’s (non-management) staff.
Dear Concerned Observer,
One cannot but approve your statement!
Furthermore, one should not forget that the AC accepted the worse scenario presented by EPO’s administration.
The level of gullibility of most of the delegations is awesome.
The reasoning level in the AC seems to have lowered to a level which is hard to believe:
If it comes from the management, it must be good.
It is even better if we can keep, if not increase, our personal perks and the “cooperation” budget.
What those people do not realise is that they are sawing off the branch they are sitting on.
With a very lopsided recruitment and a massacred training period the EPO will not be able to maintain the quality the management is proud of.
In any case for the tenant of the 10th floor quality means expediency.
It is only what can be measured!
With the recent tenants of the 10th floor the EPO would never have become the success story it has been.
The EPO is willingly run into the wall.
One really wonders why?
Justice delayed is justice denied.
These recent judgments together with earlier judgments on the right to strike (blog of July 13, 2021) have one thing in common: they arrive very, very late. The strike judgment took around 8 years, the election rules took about the same time, starting also in 2014. Dismissal of the single parent goes back to September 2017, more than four years. At least case 4488 goes back to 2012 (date of decision for transfer), and case 4489 concerns reports covering the years 2011 and 2012.
There is no fast track procedure. The legal protection offered to staff is “as helpful as a chocolate teapot”, as someone remarked on this blog (concerning G 1/21 – oral proceedings as videoconference).
That has to change. I wonder whether I will live to see attempts in this regard.