Summary: The now disgraced (having just resigned) Ivo Opstelten played a role in helping Benoît Battistelli crush his staff

The European Patent Office (EPO) -- especially its management as opposed to patent examiners-- has indulged in relative calm this past week. What it does not know is that there is still have plenty of exclusive coverage coming and it's not going to like it. These problems cannot be resolved with words but only with actions.

The EPO's management, namely Battistelli and his cronies, are on the retreat from EPO staff. The staff arguably has the upper hand now, so it will be getting its demands met one way or another.

Merpel from IP Kat delivered a sort of interlude at the end of last week, saying: "By recognising both the "social unease" that exists in the EPO and by timetabling the need to address it, this month's Administrative Council Meeting appears to have provided at least a basis for the various interested parties -- the President, Boards of Appeal, management, staff and unions, and also the members of the Administrative Council themselves if truth be told -- to start afresh by building relationships that are founded on respect, on tolerance and understanding, on listening to one another, plus a leavening dose of humility.

"The outcome of the Administrative Council Meeting will certainly not be to everyone's liking. For one thing, it approved the controversial healthcare reforms which, viewed from the standpoint of an objective bystander, appear to be one of the most significant causes of the "social unrest" and which will remain a permanent obstacle to its being remedied. Nor will its acceptance of the proposal for a Board of Appeal Committee, in the face of some sensible and constructive criticisms from the Praesidium and Board members, have done much to enhance respect or confidence for the Council itself. However, a door has been opened and a small step has been taken in the right direction. The question to ask now is whether, now that this opportunity has been created, it will be taken and built upon -- or mocked and spurned.

"It is easy to be sceptical and to say that something won't work, particularly if you can do it anonymously by penning comments on a blogpost. It's also rather fun to be able to say to anyone who can be bothered to listen "See, it didn't work. I told you so!" It's far harder to swallow one's pride, sit down with people you have not hitherto liked, trusted or respected, and talk through the problems that the EPO has to address, both those which it always has to face and those which it has recently created for itself. But that is what this Kat is calling for."

EPO scandals should not be left in the past and treated as 'old news' because the core issues, including corruption, have not been addressed yet. Some recent articles from the Süddeutsche Zeitung serve to remind us of the profound issues at the EPO.

"We hope that you are enjoying your time in Singapore," wrote to us a source some weeks ago when sending us translations of Süddeutsche Zeitung articles. "For your information just to keep you up to date with recent developments," wrote this source, two recent articles from the Süddeutsche Zeitung (with English translations) were sent, accompanying the originals in Dutch.

The first one [PDF] (25^th of February) is about the planned demonstration at the British Consulate in Munich (a demonstration which was called off following threats from Battistelli). Here is the English translation:

Süddeutsche Zeitung - Wednesday, 25 February 2015

An Inexorable Conflict

EPO staff call off an officially approved demonstration – because the President bans it

On one occasion, such a large number of staff - reportedly 2000 - arrived with their banners and placards that the police had to cordon off the street in front of the building with the dark glass façade beside the Isar. They had taken to the streets to protest against the management style of the man who sits – some would say “resides” – on the top floor: Benoît Battistelli, President of the European Patent Office (EPO), an international organisation with its very own rules – “a state within a state”. A state which for quite some time now has been in a virtual state of war.

All those who object to Battistelli’s new rules had planned to march again today. The route along the Isar would have brought them to the British Consulate General, just like previous actions which had taken place at the French and Danish Consulates. The EPO’s Staff Union SUEPO unexpectedly called off the officially approved demonstration: not of its own volition, however, but because the President had threatened the demonstrators with massive disciplinary consequences. This is confirmed by a document which the Süddeutsche Zeitung has seen. The Office management claimed that the demonstration was “contrary to the interests of the Office” and was likely to damage the EPO’s reputation. Staff members participating in the organisation of the demonstration were warned that they were in breach of the legal framework applicable to their contracts. In a letter to SUEPO, the President stated that the organisers would be held liable for their actions.

This de facto demonstration ban represents a new peak in a conflict whose intensity has been escalating during recent months. It is a conflict which has by now reached a point where not even senior EPO representatives see any hope of a resolution. For quite some time now staff representatives have been fighting against the President and his plans for reform. The aim of these reforms is to provide a more efficient and cost-effective management of the Office – and one aspect of this involves tackling certain long-established “perks” which date from the early days of the EPO and which until now have contributed to attractive remuneration and working conditions. Time and time again, EPO staff have protested against what they consider to be the excessively brusque manner in which these reforms have been forced through. They have taken to the streets and in the weeks before Christmas they engaged in a strike action, albeit with diminishing participation towards the end. According to staff representatives this was due to increased internal surveillance and repression by management.

Photo Caption:

The Frenchman Benoit Battistelli will remain at the head of the European Patent Office until 2018. However, his management style has been the subject of harsh criticism.

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The demonstrators have consistently emphasised that as far as they are concerned, this is not about money but rather about their fundamental rights, such as the freedom of expression. They consider that these rights have been increasingly curtailed by the President. Meanwhile, in attempting to justify the demonstration ban, Battistelli did not cite the attacks on his person and management style but referred instead to those directed against the two British delegates on the Administrative Council, the only supervisory body to which the President is subordinate. This body which is composed of delegates from the EPO member states is considered by its critics to be too much under the sway of the President. On a number of recent occasions, it has bolstered Battistelli, in particular by prematurely extending his term of office until 2018.

For this reason, the Staff Union wrote to the British Consulate General at the beginning of February and requested a discussion: not just about the President but also about what they considered to be the overly uncritical stance of the British delegation. Battistelli interpreted this as a personal attack on the two representatives of a member state. Moreover, discussions with member states are exclusively a matter for the Office – and by “Office” Battistelli means those at the top, i.e. himself. The EPO was unable to provide an answer to our question as to why Battistelli only decided to intervene now and why he did not raise any objection to previous demonstrations and letters to diplomatic representatives.

The second one [PDF] (27^th of February) is about the Dutch court judgment and the intervention by the Dutch Justice Minister to prevent execution of the Judgment. There are more documents and comments about this on the public website of SUEPO. Here is the English translation:

Süddeutsche Zeitung - Friday, 27 February 2015

Being in the right is no guarantee of obtaining satisfaction

Following a reprimand by a Dutch court, the European Patent Office strikes back

Berlin - A Court of Appeal in the Netherlands has ordered the European Patent Office (EPO) to engage in collective bargaining with the Staff Union. In addition to this, the EPO is required to cease blocking emails from staff representatives and to desist from threatening Staff Union activists with disciplinary measures. With this development, the conflict between EPO staff and the President Battistelli has reached a new level of intensity. The Appeal Court (“Gerechtshof”) in the Hague has officially declared that the EPO violated the fundamental rights of its staff. The Staff Union known as “SUEPO” had no means of legal redress available to it.

The judgment opens up a new chapter of legal history because until now it was generally accepted that the EPO, as an international organisation, enjoyed immunity from the jurisdiction of national courts. Battistelli consistently emphasised this, in particular in connection with the reforms which he has been implementing in the Office during the last few years. He claimed that he wanted to do away with long-standing privileges enjoyed by staff and that he had the support of the representatives of the 38 member states of the Organisation. Staff representatives and Union activists, however, complained that the changes led to restrictions of their fundamental rights, for example with respect to Union activities and industrial action. The headquarters of the EPO are in Munich and it also has large sub-offices in Berlin, Vienna and the Hague.

“It was quite an unusual decision”, the attorney representing the Staff Union, Prof. Liesbeth Zegveld, says about the judgment. “The EPO had, however, behaved badly because it did not recognise SUEPO as a social partner”. The EPO management on the other hand rejects the judgment of the Appeal Court as an encroachment. The judges had “decided not to respect the fundamental principle of immunity” wrote the EPO President in a Communiqué to his staff. “This judgement is neither legally admissible nor practically enforceable”.

In order to ensure that its point of view prevailed, it would appear that the EPO Administration brought pressure to bear on the Dutch authorities. A spokesperson for the Dutch Ministry of External Affairs confirmed this version of events in response to a query from the Süddeutsche Zeitung. The Dutch Government now takes the position that although the EPO is not immune from the jurisdiction of the courts in its conflict with the Staff Union, it nevertheless enjoys immunity from execution of the judgment. The Ministry of Justice ordered the Court Bailiff not to proceed with the execution. “The Ministry of External Affairs has confirmed to us that the judgment failed to take account of the international legal obligations of the [Dutch] State”, said the EPO press officer, Rainer Osterwalder.

What will happen next is unclear. On one hand, the EPO may refer the matter to the next instance, the Supreme Court of the Netherlands. On the other hand, SUEPO attorney Liesbeth Zegveld is currently considering taking legal action against the [Dutch] State which, in her opinion, is obstructing its own justice system. It is possible that a similar lawsuit could succeed before the German courts.

"The European states, including Germany, should never have ratified the Convention relating to the European Patent Office," says Siegfried Broß, a former judge of the German Constitutional Court, "because it places the fundamental and human rights of EPO employees at the disposition of the Office Administration.”

The Dutch Socialist Party has also issued a statement calling on the Dutch government not to tolerate human rights abuses at the EPO. To quote the summary alone: "The Court of Justice in The Hague last week ruled that the European Patents Organisation (EPO) is in conflict with important European fundamental rights, such as the right to strike. Security and Justice Minister Ivo Opstelten is, however, refusing to give effect to the judgment, on the grounds that the EPO – not an EU institution, but one with thirty-eight member states, including all EU countries - is an independent organisation and therefore enjoys immunity. SP Member of Parliament Michiel van Nispen finds this reasoning absurd, he says. ‘The minister is thus approving the silencing of trade unions and the fact that workers can’t in the end enforce their rights,’ he points out. ‘Independent organisations should not be hampered in their functioning, but that doesn’t mean that they have carte blanche to transgress human rights and ignore judicial rulings.’"

In imminent articles we are going to show that even Battistelli's defence, namely Opstelten, is itself corrupt. There is much that can be deduced from it. ⬆