Dr. Birkmann’s legal analysis, which debunks claims from Topić and Lutz
Summary: Benoît Battistelli’s union-busting actions inside the EPO come under fire from legal experts commissioned by the unions
Team Battistelli has been busy attacking people whose function is merely allowing people to join unions. Team Battistelli even sent a warning sign a month before the suspensions (under the misleading title “your rights”; a better title might be “you have no rights”). Topić appears to be leading the charge when it comes to union-busting these days and SUEPO et al. (this is the Central Executive Committee and supporters) took the time to respond to that two days ago, having released the following statement:
Zentraler Vorstand . Central Executive Committee . Bureau Central
sc15455cp – 0.2.1/0.3.2
Rebuttal of the publication by the Office entitled ‘Your Rights’ from 2nd October 2015
On the 2nd October 2015, the office published a document entitled ‘Your Rights’ on the intranet. Mr. Raimund Lutz and Mr. Zeljko Topic both signed this publication.
In it, the office at least recognised the right of Unions to provide legal support to colleagues and to provide standard contracts to them to that effect. However, they then concluded that based upon ‘an external legal opinion’, the SUEPO standard contract ‘does not fulfill the required standards of legality’.
In order to have an impartial and independent assessment of the legal situation, SUEPO’s lawyers contacted an external, experienced legal expert. Dr. A. Birkmann is a lawyer, a former Judge at the German Federal Court of Justice (BGH-Richter) and Minister of Justice (Justizminister).
In summary, his expert assessment on the legal validity of the SUEPO agreement is as follows:
- The contract does not infringe upon staff’s rights.
- The contract does not infringe upon the basic human rights of the staff.
- The contract does not violate statutory provisions in terms of a breach of the lawyer’s obligation to confidentiality.
- There are no conflicts of interest to the detriment of the EPO.
- The contract does not infringe upon the employer’s rights.
- The contract is legally sound and does not violate the applicable law.
Here is the entire expert statement in German and a certified translation in English.
The Office never published their ‘external legal advice’. We doubt they even have one. If they do, we suspect it probably tells a very different story to the one that the authors of the office document would have us all believe. However, if they do indeed have one, then we would very much like to read it.
Mr. Topic may not have the necessary legal expertise in German Law, so he might be excused for having put his name to such a publication. However, it is with regret that we once again see that Mr. Lutz, a former German judge, apparently provides an erroneous legal opinion. This not only seems to misinform the staff, but also risks bringing the Office once more into disrepute. After all, was it not the very same VP5 who apparently gave his advice in the “lost” case in TH [The Hague], wherein the office was found guilty of violating the staff’s basic human rights?
This is an important matter because Team Bergot, a ‘subsidiary’ of Team Battistelli, is already engaged in institutional harassment of at least two people who are responsible for the SUEPO agreement/contract.
Here is the legal opinion defending the SUEPO agreement:
Certified translation from German
Spilker & Colleauges
H. -J. Spilker. A. Schmidt. V. Heppt. G. Ladige. Dr. M. Fertig
Dr. A. Birkmann. M. Scherer
Anger 23. 99084 Erfurt. Tel. 0361-598 94-0. Fax 0361-565 4638
Expert statement on the legal validity of the Agreement (Agreement on Legal Assistance)
STAFF UNION OF THE EUROPEAN
PATENT OFFICE (SUEPO)
Members of the Union
I. Starting situation
In an e-mail dated 20 November 2015, Mr Alexander Holtz, the lawyer representing the Staff Union of the European Patent Office (SUEPO), asked the undersigned to submit an expert report on the question of the legal validity of the Agreement on Legal Assistance of 20/ 28.09.2012 – Annex 1. Mr Holtz ordered this report in the name of his client in an e-mail on 21 November 2015.
II. Facts of the case
In the Agreement on Legal Assistance (Annex 1) it is agreed that the “Applicant”, the beneficiary of the Agreement on Legal Assistance and member of SUEPO, will be reimbursed for between 2/3 and 100 % of the total costs of legal defence in proceedings against the European Patent Office. The rules for the grant of legal assistance stipulate the cases in which legal assistance will generally be granted (11.2). If necessary an external lawyer may be hired to give legal advice (11.9).
Rule No. 13 stipulates that
a) the recipient of the legal assistance shall entrust the whole defence procedure to the lawyer, either directly or through SUEPO’s Legal Advisor,
b) the recipient of the legal assistance shall at no time communicate directly with the Patent Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor of SUEPO,
c) if the recipient of the legal assistance fails to meet the two requirements (a) and (b) above, financial aid may be revoked at any stage and time.
The European Patent Office is of the opinion that the grant of financial aid to employees for legal assistance in proceedings against the Office is based on unlawful regulations which render the Agreement on Legal Assistance invalid.
The Office considers the Agreement on Legal Assistance to be invalid pursuant to Sec. 307 BGB (German Civil Code). They maintain that under German Law, lawyers are not permitted to prohibit their clients from talking to their opponents in legal proceedings. Consequently, the provision in Art. 13 of the Rules was an invalid standard clause pursuant to Sec. 307 BGB. They consider that the freedom of self-determination of the union member is unlawfully restricted.
Furthermore the European Patent Office is of the opinion that the provisions in the Agreement on Legal Assistance constitute an infringement of Sec. 106 of the GewO (German Industrial Code) which guarantees the right of the employer to give directives as regards work duties, in order to ensure law and order in the company.
In addition, the European Patent Office considers that the Agreement on Legal Assistance violates the right to freedom of expression guaranteed under Article 2, para. 1 of German constitutional law (Grundgesetz – GG) and Article 10 of the European Convention on Human Rights and further that it constitutes an infringement of basic rights of occupational freedom guaranteed by Art. 12 of the Grundgesetz.
Finally, the Office claims that due to the provisions in Art. 13 of the Rules, the external lawyer appointed would be committing a breach of the obligation to secrecy if he did not agree to contact with the opponent but the SUEPO Legal Advisor were to take steps to initiate such contact.
Mr Holtz has made a detailed statement on the objections of the European Patent Office to the Agreement on Legal Assistance on behalf of the Union and rejected the objections
raised on the grounds that they were materially and legally inapplicable. With respect the details of Mr Holtz’s submissions we refer to Annex 2.
III. Legal assessment
In so far as the EPO raises the central question of the invalidity of the Agreement on Legal Assistance pursuant to Sec. 307 BGB, it must first be clarified whether Sec. 307 BGB is applicable at all in this case. Sec. 307 BGB is a follow-up regulation related to the application of general terms and conditions of business which are settled in Sec. 305 BGB. According to this provision, general terms and conditions of business are contractual provisions that are incorporated into the contract (cf. Palandt, German Civil Code (BGB), 74th ed., 2015 Sec. 305 margin note 2). They are principally applied in contracts with reciprocal contractual obligations. However, unilateral declarations may also be considered as the subject of general terms and conditions of business. This does not apply, however, in the case of unilateral declarations made by the user (cf. Palandt, ibid, Sec. 305 margin note 6). The user exercises his own rights in this respect when formulating the provision (cf. BGH (Federal Court of Justice) NJW 2011, 139, 141).
In the present case, it is not possible to incorporate the Agreement on Legal Assistance in the provisions of Secs. 305 et seq. BGB, in the context of further contractual regulations, foreseen as a possibility in case law (cf. BGH, NJW 2011 ibid; BGH NJW 2013, 2683 et seq.). Legal assistance is not being granted here within the framework of a mutual contractual relationship with the beneficiary, but in line with the way the Staff Union of the European Patent Office (SUEPO) perceives its function and the consequences for its work derived from this perception. Within the framework of fulfilling its tasks, the Union lays down the conditions under which it is prepared to grant benefits. The “Agreement” to be concluded between the Union and the beneficiary is solely a consequence of the freedom of the Union to decide for itself. This is therefore a unilateral legal transaction on the part of the Union within the meaning of the judicature of the BGH (cf. BGH, NJW 2011, 3, 141). This unilateral freedom to decide for oneself stems from the collective bargaining autonomy of the unions which is protected under Art. 9 Grundgesetz. Art. 9 para. 3 of the Grundgesetz guarantees the freedom of action of the unions. As a consequence of this right, the Staff Union of the European Patent Office (SUEPO) offers its members assistance with exercising
their rights. The Union is entirely free to decide how to organise this unilateral offer. Contrary to the opinion of the EPO, there is little room for the consideration of the principles of good faith, given the legal situation.
Some members of the Union perform their work in accordance with this freedom to decide for themselves. They are subject to the same constitutional protection as the Union itself, the so-called individual right of the union members to pursue union activities (cf. Maunz-Durig-Herzog, Grundgesetz, Commentary, Art. 9 margin note 169).
There is therefore no legal scope to control the content of the conditions for offering assistance pursuant to Sec. 307 BGB.
Neither does the employer’s right to give orders pursuant to Sec. 106 of the German Industrial Code restrict the union’s freedom of decision and action protected under Art. 9 para. 3 of the Grundgesetz. The boundaries of Sec. 106 of the German Industrial Code are found elsewhere in the working conditions laid down there. The conditions governing work performance are basically derived from the contract of employment and the provisions agreed therein, as well as from company agreements and usual company practice, collectively agreed and statutory provisions (cf. Landmann/Rohmer, GewO, Voll, Sec. 106 margin note 3). This means that the employer has to respect the union’s sphere of influence. The employer must take into account the rights due to the unions on the basis of Art. 9 para. 3 of the Grundgesetz (cf. Landmann/Rohrner, ibid, margin note 5, 6). This states: “Given a modern understanding of labour relations, companies today, especially in the face of global competition, cannot exist with a simple hierarchical structure, but must foster a cooperative partnership between employers and employees.” That means that, in the interests of unions working on behalf of the workforce, the legally permissible freedom of action of the unions working must be respected.
The Rules for the Grant of Legal Assistance do not unlawfully restrict the right of the employee to free development of his personality in accordance with Art. 2 of the Grundgesetz and to choose their occupation or profession in accordance with Art. 12 of the Grundgesetz. On the contrary: it is a very expression of the freedom protected under Art. 2 para 1 of the Grundgesetz that contractual freedom is guaranteed and that employees therefore, within the scope of private autonomy, are free to conclude agreements, such as to accept the offer of assistance from the Union. The conflict seen by the European Patent Office between this and the offer of assistance derived from Art. 9 para. 3 of the Grundgesetz, does not exist. The employee is free to choose whether to accept or reject such an offer (cf. Maunz-Dürig-Herzog, ibid, Art. 2 para. 1 margin note 101).
In the same way, the basic right to choose an occupation or profession pursuant to Art. 12 of the Grundgesetz is not affected by the legal assistance regulation and the acceptance of the assistance by the employee. Art. 12 of the Grundgesetz is to be seen against the background of Art. 9 of the Grundgesetz. The basic right to form associations pursuant to Art. 9 para. 3 of the Grundgesetz has it main material point of reference in occupational freedom, insofar as it concerns the collective regulation of working conditions. When an employee joins an association – union – this is part of his occupational freedom (cf. Maunz-Durig-Herzog, ibid, Art. 12 margin note 193).
Neither does Art. 13 (c) of the Agreement violate statutory provisions in terms of a breach of the lawyer’s obligation to secrecy. The standard clause governing lawyers’ professional duties is Sec. 43 BRAO (Federal Lawyers’ Act), which states that the lawyer must “exercise his profession conscientiously and prove himself worthy of the respect and trust that the position of a lawyer demands both in his professional and private life”.
The performance of these duties relates to the professional conduct of the lawyer vis-à-vis persons seeking legal assistance, clients and opponents, courts and authorities as well as in
collaboration with the Bar Association and members of other professions, as well as to laws concerning supervision and advertising (cf. Feuerich / Braun, BRAD, commentary 5th ed., Sec. 113 margin note 9).
The obligation to secrecy is expressly settled in Sec. 43 a BRAD. The maintenance of strict secrecy is the essential basis of trust between the lawyer and his client (cf. Feuerich / Braun, ibid). No conflicts of interest with the Patent Office are evident. In a counterfactual situation where the Legal Advisor of SUEPO declares that contact between the applicant (beneficiary) and the opponent is permissible, the external lawyer would seem to be indirectly released from his obligation to secrecy. “If the client releases the lawyer from the obligation to secrecy, the obligation to secrecy ceases to exist” (cf. Feuerich / Braun, BRAD, Sec. 43 a margin note 24).
In summary it can be stated that the Agreement on Legal Assistance does not violate applicable law.
All the measures included in the Rules should be viewed against the background of the freedom to decide of the Staff Union of the European Patent Office (SUEPO) and are justified. There are no conflicts of interest to the detriment of the European Patent Office (EPO).
The Agreement on Legal Assistance as a whole can be seen within the framework of the union’s freedom to decide on its own actions.
Erfurt / Gernsbach, 4 December 2015
Dr. Andreas Birkmann
Judge at the Federal Court of Justice (retired)
Minister of Justice (retired)
Experience suggests that irrespective of how illegal, unethical or unjust the EPO’s actions may be, the EPO will just use its immunity/impunity to do whatever Battistelli wants. Where are politicians in all this and how can this be tolerated by so many of them? Lack of information (legal threats contribute to this) is most likely the cause of apathy. █