12.17.15

Gemini version available ♊︎

EPO Union Responds to Željko Topić and Raimund Lutz’s Attempt to Intimidate Staff That Joins Unions

Posted in Europe, Patents at 6:19 pm by Dr. Roy Schestowitz

Dr. Birkmann’s legal analysis, which debunks claims from Topić and Lutz

Birkmann letter

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

16/12/2015
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
Attorneys-at-law
Partnerschaftsgesellschaft mbB
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)
between

STAFF UNION OF THE EUROPEAN
PATENT OFFICE (SUEPO)

and

Members of the Union

dated 20/28.09.2012


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

1.

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.

2.

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.

3.

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

1.

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.

2.

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.


3.

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).

4.

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).

IV. Result

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
Lawyer,
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.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Links 4/12/2021: EndeavourOS Atlantis, Krita 5.0.0 Beta 5, Istio 1.11.5, and Wine 6.23; International Day Against DRM (IDAD) on December 10th

    Links for the day



  2. Another Gemini Milestone: 1,500 Active Capsules

    This page from Balázs Botond plots a graph, based on these statistics that now (as of minutes ago) say: “We successfully connected recently to 1500 of them.” Less than a fortnight ago more than 1,800 capsules overall were registered by Lupa, almost quadrupling in a single year



  3. [Meme] António Campinos and Socialist Posturing

    Staff of the EPO isn’t as gullible as António Campinos needs it to be



  4. António Campinos as EPO President is Considered Worse Than Benoît Battistelli (in Some Regards) After 3.5 Years in Europe's Second-Largest Institution

    The EPO's demise at the hands of people who don't understand patents and don't care what the EPO exists for is a real crisis which European media is unwilling to even speak about; today we share some internal publications and comment on them



  5. Media Coverage for Sale

    Today we're highlighting a couple of new examples (there are many other examples which can be found any day of the year) demonstrating that the World Wide Web is like a corporate spamfarm in "news" clothing



  6. Links 3/12/2021: GNU Poke 1.4 and KDDockWidgets 1.5.0

    Links for the day



  7. IRC Proceedings: Thursday, December 02, 2021

    IRC logs for Thursday, December 02, 2021



  8. Links 3/12/2021: Nitrux 1.7.1 and Xen 4.16 Released

    Links for the day



  9. Links 2/12/2021: OpenSUSE Leap 15.4 Alpha, Qt Creator 6

    Links for the day



  10. The EPO's “Gender Awareness Report”

    There’s a new document with remarks by the EPO’s staff representatives and it concerns opportunities for women at the EPO — a longstanding issue



  11. IRC Proceedings: Wednesday, December 01, 2021

    IRC logs for Wednesday, December 01, 2021



  12. EPO Staff Committee Compares the Tactics of António Campinos to Benoît Battistelli's

    The Central Staff Committee (CSC) of the EPO talks about EPO President António Campinos, arguing that “he seems to subscribe to the Manichean view, introduced by Mr Battistelli…”



  13. Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“

    The truth remains unquestionable and the law remains unchanged; Team UPC is living in another universe, unable to accept that what it is scheming will inevitably face high-level legal challenges (shall that become necessary) and it will lose because the facts are all still the same



  14. Links 1/12/2021: LibrePlanet CFS Extended to December 15th and DB Comparer for PostgreSQL Reaches 5.0

    Links for the day



  15. EPO Cannot and Will Not Self-Regulate

    The term financialisation helps describe some of the activities of the EPO in recent years; see Wikipedia on financialisation below



  16. [Meme] Germany's Licence to Break the Law

    Remember that the young Campinos asked dad for his immunity after he had gotten drunk and crashed the car; maybe the EPO should stop giving diplomatic immunity to people, seeing what criminals (e.g. Benoît Battistelli) this attracts; the German government is destroying its image (and the EU’s) by fostering such corruption, wrongly believing that it’s worth it because of Eurozone domination for patents/litigation



  17. EPO Dislikes Science and Scientists

    The EPO's management has become like a corrupt political party with blind faith in money and monopolies (or monopoly money); it has lost sight of its original goals and at this moment it serves to exacerbate an awful pandemic, as the video above explains



  18. Links 1/12/2021: LibreOffice 7.3 Beta, Krita 5.0, Julia 1.7

    Links for the day



  19. Links 1/12/2021: NixOS 21.11 Released

    Links for the day



  20. IRC Proceedings: Tuesday, November 30, 2021

    IRC logs for Tuesday, November 30, 2021



  21. Links 1/12/2021: Tux Paint 0.9.27 and WordPress 5.9 Beta

    Links for the day



  22. [Meme] EPO Administrative Council Believing EPO-Bribed 'Media' (IAM Still Shilling and Lying for Cash)

    IAM continues to do what brings money from EPO management and Team UPC, never mind if it is being disputed by the patent examiners themselves



  23. The EPO's Mythical “Gap” Has Been Found and It's Bonuses for People Who Use Pure Fiction to Steal From Patent Examiners

    The phony president who has the audacity to claim there's a budget gap is issuing millions of euros for his enablers to enjoy; weeks ahead of the next meeting of national delegates the Central Staff Committee (CSC) tells them: "Events show that the delegations’ concerns about functional allowances have materialised. The lack of transparency and inflation of the budget envelope gives rise to the suspicion that high management is pursuing a policy of self-service at the expense of EPO staff, which is difficult to reconcile with the Office’s claimed cost-saving policy, and to the detriment of the whole Organisation."



  24. Video: Making the Internet a Better Place for People, Not Megacorporations

    Following that earlier list of suggested improvements for a freedom-respecting Internet, here's a video and outline



  25. Links 30/11/2021: KDE Plasma 5.23.4, 4MLinux 38.0, Long GitHub Downtime, and Microsoft's CEO Selling Away Shares

    Links for the day



  26. A Concise Manifesto For Freedom-Respecting Internet

    An informal list of considerations to make when reshaping the Internet to better serve people, not a few corporations that are mostly military contractors subsidised by the American taxpayers



  27. Freenode.net Becomes a 'Reddit Clone' and Freenode IRC is Back to Old Configurations After Flushing Down Decades' Worth of User/Channel Data and Locking/Shutting Out Longtime Users

    Freenode is having another go; after “chits” and “jobs” (among many other ideas) have clearly failed, and following the change of daemon (resulting in massive loss of data and even security issues associated with impersonation) as well as pointless rebrand as “Joseon”, the domain Freenode.net becomes something completely different and the IRC network reopens to all



  28. Jack Dorsey's Decision is a Wake-up Call: Social Control Media is Just a Toxic Bubble

    The state of the World Wide Web (reliability, preservation, accessibility, compatibility etc.) was worsened a lot more than a decade ago; with social control media that’s nowadays just a pile of JavaScript programs we’re basically seeing the Web gradually turning into another Adobe Flash (but this time they tell us it’s a “standard”), exacerbating an already-oversized ‘bubble economy’ where companies operate at a loss while claiming to be worth hundreds of billions (USD) and generally serve imperialistic objectives by means of manipulation like surveillance, selective curation, and censorship



  29. IRC Proceedings: Monday, November 29, 2021

    IRC logs for Monday, November 29, 2021



  30. Links 29/11/2021: NuTyX 21.10.5 and CrossOver 21.1.0

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts