The creation of a dedicated administrative tribunal could be a way to improve the settlement of labour disputes at the European Patent Office. Eric De Brabandere, professor of international dispute settlement at Leiden University in the Netherlands said this in an interview with Kluwer IP Law.
The tensions at the EPO have risen over the last few months. Industrial actions and a strike have been organised and in a remarkable meeting with the Central Staff Committee (CSC) on 26 April 2022 president António Campinos apparently had an outburst of anger, cursing and interrupting other speakers and telling them they should finally accept his proposals.
At least, that is what we know from a letter the CSC distributed among staff members. In a notice of the management, no more was said than: ‘Unfortunately, the meeting was less constructive than expected, with some issues creating tension at times.’
Not functioning
Not just these events, but the fact that for more than a decade social tension has been rife at the EPO is a clear indication that the mechanisms for solving conflicts at the organisation are not functioning well.
It is difficult for an outsider to understand and explain the causes for the social environment. However, the EPO has certain features which are important to note, some of which are inherent in international or inter-state organisations, De Brabandere says.
‘One thing is that the EPO doesn’t function as a normal company. It is a self-financed inter-state organisation. Member states, who have created it, want to have influence and decide who is to become the new president or vice-president. These are in essence political nominations, and this is a normal practice in international organisations.
Also, and because of that, it is in first instance up to the EPO member states and their representatives in the Administrative Council to tackle the social problems if there are any. But they might have no financial interest to intervene; leaving aside the apparent social issues the EPO seems to function well. As long as an organisation delivers what is supposed to deliver, there might be no incentive for change from the side of member states.’
Immunity
It doesn’t help either that the European Patent Office is an organisation that the average man in the street isn’t particularly interested in, even if the EPO is of paramount importance economically with its ability to grant valuable patents in pharma, digital communication, computer technology etc. Media coverage is scarce and so is outside pressure. It was only during the worst period of social troubles under former EPO president Benoît Battistelli that national news outlets paid attention and parliamentarians and governments in several states demanded improvements. But due to the EPO’s immunity, little was achieved.
This immunity from legal process is a crucial issue. Immunity protects the EPO – and many other international organisations – from the jurisdiction and enforcement measures of member states. ‘There are good reasons for this immunity’, says De Brabandere. ‘It protects both the organization and its member states by preventing national courts from determining the legal validity of acts of the organization. Without immunity, member states (through their courts and tribunals) would be able to unilaterally influence its activities.’
But the immunity can easily become problematic if labour conflicts rise, as the normal route to go to a national court is not available. This leads to friction in many international organisations. At the EPO, which is huge and employs almost 7000 people, it was inevitable it would give problems sooner or later.
‘Since several decades, the European Court of Human Rights (ECHR) has established that immunity from jurisdiction is not unlimited but has to be proportional, and that it cannot be invoked in case of lack of a proper internal conflict resolution mechanism. This sounds like there is some space for national courts to intervene, but in practice the ECHR has in the past years mostly ruled that the internal mechanisms were adequate.’
In the Netherlands, the ECHR jurisprudence was followed among others in an EPO case in 2017. The Gerechtshof (Court of Appeal) in The Hague had ruled that the EPO was violating the European Convention on Human Rights and said that, regardless of the question whether the EPO is an autonomous international organization (…), this autonomy cannot encompass/include the right to violate fundamental European rights (…) without offering parties such as the unions any legal remedy.
The Dutch Supreme Court however disagreed. According to its judgment the employees, represented by the trade unions, could contest the measures taken by the international organisation by means of an internal procedure. It was enough that, even if this route was not available to the unions, employees could lodge an appeal as an individual with the Administrative Tribunal of the International Labour Organisation (ILOAT) in Geneva.
Interestingly, the lack of sufficient legal remedies at the EPO is central in five constitutional complaints relating to the European Patent Office before the German Federal Constitutional Court (FCC), namely, 2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/16 and 2 BvR 561/18. Four of these cases have been on the FCC’s previewed decision list since 2017. According to a spokesman of the FCC, the decision in these cases will come this year.
Anonimity
The reality at the EPO is that people behind, for instance, trade union SUEPO operate in anonymity out of fear they will be fired or will face other severe sanctions, as happened with various SUEPO leaders in the Battistelli era.
In answer to the question what could possibly be a solution for the difficult social situation at the European Patent Office, De Brabandere says that generally speaking the ILO’s Administrative Tribunal functions well. ‘It is the court of appeal for many labour disputes within international organisations and handles many cases. However, because of its heavy caseload, the whole procedure indeed can be perceived as slow and this might not easily be remedied. In the first place because of its growing popularity, as there is an increased caseload in terms of challenge of decisions in case of labour conflicts.’
That’s why he points at an interesting option, which various other international organisations have opted for: the creation of a dedicated administrative tribunal, consisting of judges that have no link at all with the EPO, and which would only take EPO cases. In other places this has been successful in providing a specific tailor-made mechanism, especially in large international organisations, and it may here also result to speed up conflict resolution.
The best example is the United Nations Dispute Tribunal and United Nations Appeals Tribunal (UNAT), a two-tier system established in 2009 amongst others because the previous mechanism was deemed too slow. Other examples are the World Bank Administrative Tribunal, the Administrative Tribunal of the Organisation of American States, the Asian Development Bank Administrative Tribunal or the African Development Bank Administrative Tribunal. It is not unusual for these tribunals to issue decisions within one or two years.
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The problem at the EPO has been well analysed. For the higher management, immunity means impunity. We have seen this with Battistelli and it continues with Campinos.
The problem is that there is no real possibility of negotiating anything. The staff committee has to be “consulted”, but at the end of the day, the decision rests with the president. Provided there has been a “consultation”, whatever one understands under this wording, the rest is at the discretion of the president.
He can then decide as he thinks fit.
The same goes with the internal appeal committee (IAC). Even if the decision of the IAC is unanimously in favour of the staff member, which is a rare occurrence, the president can refuse to follow its advice or decide something totally different. Battistelli did not only use this possibility, he abused it. It is a real scam and a parody of an internal appeal procedure.
The mere fact that the chair of the IAC is an “independent” personality has not changed anything. The president has not changed its behaviour. It should at least be made clear that in case of a unanimous opinion of the IAC, the president should accept it and not force staff to go to the ILO-AT. It should also not be permitted to the president to take a decision which is more negative for the staff member concerned. A kind of prohibition of the reformation in peius should be established.
In this respect, the ILO-AT is not an adequate forum. The ILO-AT checks whether the consultation mechanisms have been applied correctly, but will never take a decision which will be against the policy decisions of the management. It is only if the correct mechanisms have not been used or if the discretion has manifestly been misused that the ILO-AT will say something. This is not the protection needed.
This is different with the CJEU and EU staff. A long time ago, the staff and the commission came to an agreement that the salary increase would be in a given range. The commission then went 0,1% above the lowest value of the range. the CJEU decided that when there is a range, it could be expected that the value taken was mid-way of the range and decided that the value was the middle of the range, otherwise, the notion of range would be meaningless. The commission grudgingly obeyed.
The ILO-AT would never take such a decision, and here is the difference between a proper court and just and administrative court. In order to be protected, staff of the EPO need to be able to address a proper court.
For a dedicated tribunal to solve disputes between staff and management it needs a political will. And in view of the fact that the AC has completely given up and merely rubber stamps the desiderata of the president, there is no hope to be expected from there.
It would be nice, but reality is somehow different. The specific status of intergovernmental organisations allows their heads to act sometimes like manufacture owners in the 19th century thanks to their immunity which they take as synonym of impunity.
Isn’t this Administrative Tribunal a step promised by the previous President?
He presented it as his vision where Social Dialogue will lead to in the last step of reforms, but abolished this the moment the CA approved the first step(s), which increased the power of the administration (which were presented as intermediate step towards the implementation of an internal judiciary with independent judges hired from the national systems).
Like so many reforms, only the first step was implemented, never the second basket(s)….
Realistic examiner
Access to justice at the EPO is a long journey with a lot of obstacles.
First, staff needs to file a management review which is dealt by the Conflict Resolution Unit (CRU) which systematically rejects any case of political nature or which challenges general policies.
Second, staff needs to file an appeal in front of the Appeals Committee (ApC) and pay a 200 Eur registration fee. Yes, you read well. One has to pay his own employee to challenge illegal policies of one’s employer. When 1.000 staff members challenge a policy, 200k € enter in the EPO’s pockets.
The Appeals Committee of the EPO has also proven to be deficient. The Tribunal has sanctioned the EPO for the breach of the right to strike in (Judgments 4432-4435) and the fundamental right to freedom of association by interfering with staff committee elections (Judgment 4482). All corresponding cases had been treated and rejected by the EPO Appeals Committee chaired by Sir Paul Mahoney who was a former Judge of the European Court of Human Rights. Sir Paul Mahoney was unable to identify the breaches of fundamental rights at the EPO and the Tribunal proved him wrong. It seems that as soon as a “prominent” jurist works for the EPO, he forget about legality.
Even in the rare cases when the Appeals Committee issues a unanimous opinion in favour of staff, Mr Campinos may still reject it and dismiss the appeal. Either because Mr Campinos wants to protect the legacy of Mr Battistelli, or because he does not like the appellant: institutionalized harassment continues at the EPO.
Third, staff needs to file a complaint in front of the ILO Administrative Tribunal. The problem is that the Tribunal’s statutes make it impossible for unions or staff committees to file a complaint. The Tribunal does not accept class actions and accepts only individual complaints. And when a judgment is in favour of staff, the EPO does not extend the application of the judgment to all staff and selectively applies as it deems fit. This is for instance what Mr Campinos did by fully applying judgments 4432-4435 ONLY to staff members who had filed a complaint. To secure their rights, EPO staff MUST file individually and resort to the filing of mass complaints which cause more work for the Tribunal.
Mr Campinos was elected to restore social dialogue and reduce litigation. The recent events proved that he failed to do so. Mr Campinos has even hired an army of litigators by allocating a 5.8 M€ budget to law firms Guillenschmidt & Associates in Paris, and Lenz and Staehlin in Zurich to battle against the complaints of staff at the Tribunal.
EPO management currently relies on major reforms (career system, salary adjustment…) which were pushed while the right to strike was trimmed and staff committee members disciplined. Mr Campinos does not want to address any of these and wants to continue to surf on unlawfully introduced illegal reforms. These illegal reforms helped the EPO to make massive cash surpluses (although the budget is supposed to be balanced) and the Council delegations are now addicted to cash. In parallel, the quality of patents is melting and the only applicants worth some attention are the major ones. Small companies and the public have long been forgotten.
It is not easy to solve lack of proper access to justice at the EPO. Especially when the current EPO surpluses depend upon it.
The EPO is the best example of how an International Organization enjoying immunity can divert from its original purposes when it is controlled by a management acting in full impunity.
A dedicated tribunal may help to settle labour disputes. But who will control the Tribunal? Who will appoint the judges? Friends of the EPO Administrative Council?
Is the EUR200 registration fee refunded in any circumstances? For example, when the appellant (eventually) prevails? If not, has the ILO AT considered whether that fee complies with principles governing (internal) access to justice?
The Appeals Committee recommends reimbursement of the 200€ registration fee when the appeal is won. But Mr Campinos may still depart from this recommendation. I am not aware of ILOAT having said anything about this registration fee yet.
The 200€ registration fee was meant to discourage staff from filing alleged “frivolous” appeals. In the end, it fills up the pockets of the EPO on mass appeals against decisions such as the salary adjustment procedure which is melting the purchasing power of EPO staff.
I can understand a desire to discourage “frivolous” appeals. However, in the absence of strict (and reliable) safeguards, I am extremely sceptical about the concept of an employer charging their employees for INTERNAL appeals relating to disputes over employment matters. There are simply too many inherent (and unavoidable) conflicts of interest in such a set-up. This makes the appeal fee look like nothing more than a (punitive) tax on any employees who wish to try to defend their rights.
The ILOAT did indeed ‘consider’ the legality of the registration fee the EPO charges its employees when they file an internal appeal. In Judgment 4422, consideration 18, in fine, it (laconically) stated:
“Moreover, there is no legal basis on which to hold that the registration fee which an internal appellant is required to pay upon filing an internal appeal is unlawful or provides a ground to vitiate the final decision.”
Of course, the judgment does not recount which grounds the complainants invoked in support of their objection against the registration fee, nor was the Tribunal bothered about the obvious implications of the (level of the) fee on (equal) access to justice, or the fact that the opinion of the Internal Appeals Committee, a consultative body, primarily serves to enlighten the President (in most cases) on which final decision to take on an internal appeal; an opinion for which the appealing EPO employees are being made to pay for, but which they receive – icing on the cake – only AFTER the President has seen it and taken his decision thereon (Article 14(1) Impl. Reg. Art. 106-113 EPO Service Regulations, giving hence the President all liberty to send the opinion back to the Internal Appeals Committee for ‘reconsideration’ if needed…).
Neither did the Tribunal bother to put into perspective its own case law, which emphasised that an “Organisation has an obligation to maintain a properly functioning appeal system” (Judgment 4384, consideration 7; as well as Judgment 3027, consideration 6 and Judgment 1968, consideration 5) as part of its duty of care towards its employees, with the obvious implication that it is for the Organisation to ensure the maintenance, that is, the financing of the registration of internal appeals, such registration quite certainly forming part of the proper functioning of an appeal system.
If they want a proper Kangaroo Court, politicians could asign disputes between the staff and the EPO to the Unified Patent Court.
I am sure they could amend the Rules of Procedure without any Parliamentary debate in order to do so.
When one reads all this one does not wonder why the EPO is not any longer an interesting employer.
For EPO‘s management any appeal is in essence frivolous!
But having to pay a fee for an internal appeal is unheard off.
How twisted must the mind of those having decided such a measure must be.
It is the negation of any justice.
At least in the past, the president applied to all staff a measure having been decided by the ILO-AT. Why, for the mere reason of social peace!
That the quality is dwindling is nothing new, but the glossy and verbose publications of the management is claiming that it has never been better!