The official photo of the presiding Dutch judge Floris Bakels, which one can find publicly here.

Summary: Increased pressure on Dutch courts to enforce a judgment against the European Patent Office in spite of unacceptable claims of immunity

EARLIER today, only a few hours after making the initial request (it had been mentioned here this afternoon), we got an excellent English translation of the article ‘Wat als het octrooibureau martelt?’ (with the quotes in the headline as these are not the author's words).

"Latest Dutch news report about EPO matters," as our translator put it, has something unique in it.

The original article by the NRC Handelsblad can be found here. English translation can be found below or as PDF with improved formatting.

What if the European Patent Office were to torture?

Trade Unions

The Supreme Court of the Netherlands [De Hoge Raad] cannot resolve the conflict at the European Patent Office on its own. Mediation may offer a solution.

Eppo König

30 January 2016

On Friday, one of the most senior Judges in the Netherlands issued a very unusual appeal to the European Patent Office in Rijswijk and its staff unions: make a serious attempt at mediation. This was the suggestion which came from Floris Bakels, Vice-President of the Supreme Court [De Hoge Raad], in the courtroom.

A day earlier, EPO staff had held a demonstration in The Hague to protest against the atmosphere of "intimidation" and the dismissal of union members at the European Patent Office (EPO), which with 2700 employees is the largest international organization in the Netherlands.

Three suicides

In 2013, an employee committed suicide by jumping out of the office in Rijswijk. In Germany there were two further suicides at the EPO. Since then the staff union SUEPO and the staff committee have called for an independent investigation. The French President Benoît Battistelli does not want this. In an interview with the NRC, he said, "Well, first of all suicides are always personal tragedies. I think it is not appropriate to instrumentalise these incidents for tactical purposes against the President and the management. This man [...] had just been given a permanent contract. We do not know what caused him to do this." "The Labor Inspectorate in the Netherlands has no reason to intervene in such a case. We are not a Dutch institution."

The EPO, which examines national patent applications and grants European patents, is accused by the staff unions of conducting a reign of terror that has driven some of its employees to suicide. The French President of the EPO, Benoît Battistelli, for his part speaks of "sabotage" of his reform policy.

The call for mediation was remarkable for a number of reasons. "Ordinary" judges often suggest mediation, but the Supreme Court normally only examines whether lower courts have done their job properly and delivers final judgments. The call for mediation goes further: it effectively means the recognition of staff unions as social partners.

The call is complicated by an additional "strain factor" because Guillaume Minnoye, the Flemish Vice President of the EPO and director in Rijswijk was in the audience. On Nieuwsuur [a current affairs programme on Dutch television] the night before Minnoye had predicted that the EPO would disregard an adverse ruling of the Supreme Court.

Inviolability

The ruling of the Court, which will probably come after the summer, will not bring any immediate solution to the conflict. The Supreme Court may answer an important question: how far does the legal immunity of the EPO as an international organization extend? This question is relevant not only for the EPO, but also for about thirty other international organizations in the Netherlands, such as the European Commission and the International Criminal Court.

The Appeal Court of The Hague ruled last year that the EPO must recognise its staff unions. E-mails from the unions must not be blocked, the unions must be consulted on working conditions and President Battistelli should not prevent strikes.

But the EPO disregarded this ruling, because it would not be bound by national legislation. The EPO has 38 member states and has offices in the Netherlands, Germany, Austria and Belgium. All 7,000 employees should be subject to the same laws and regulations, according to the EPO.

The Netherlands wants to be a good host for international organizations and thus the State has sided with the EPO. The government acted in a Janus-faced manner this week. On Thursday the government announced an independent investigation into the working conditions at the EPO in Rijswijk. A day later the attorney for the State stood before the Supreme Court and pleaded that the office is immune.

Both parties bring extreme examples to prove their case. The EPO refers to the mothers of Srebrenica. The mothers of murdered Muslim men may not sue the United Nations because the UN as an international organization is immune.

The lawyer for the staff unions went further. The EPO deploys detectives to investigate staff and to interrogate them without a lawyer, he said. What if the EPO now permits them to engage in torture? Could the state now still claim that the EPO has immunity?

In our view, based on things that we showed here before (and also things we are aware of and have not shown yet), the EPO does engage in torture. It is, at the very least, mental torture.

"For readers' information," wrote one of our sources, here is "more contact information at the Dutch Ministry of Economic Affairs." It may be better targeted than national delegates, especially for matters of justice rather than governance of the European Patent Organisation.

For readers' information: The Dutch Secretary of State at the Ministry of Economic Affairs who is responsible for EPO matters is Martijn Van Dam, as reported in the Dutch press. His official Web page is here (in Dutch). His E-mail address at the Ministry is m.vandam@minez.nl

The current Minister is Henk Kemp. His E-mail address is h.kamp@minez.nl

Dutch citizens need to become more familiar with the EPO situation and more actively involved, even politically, in order to resolve it. What's being done by Battistelli, Minnoye and others is degrading the image of The Hague in the world and gradually becomes an embarrassment for the whole country.

Minnoye has just been publicly mentioned in the following way:

Minnoye has an impressive track record of opening his mouth before putting his brain into gear.

Remember this classic from January 2015: http://ipkitten.blogspot.de/2015/01/judicial-independence-epo-responds-to.html

His latest performance on Dutch TV got a mention in the Dutch press today: Wat als het octrooibureau martelt("What if the EPO tortures ?") https://www.nrc.nl/handelsblad/2016/01/30/wat-als-het-octrooibureau-martelt-1586149

As we noted the other day, Minnoye had put himself in the firing line. Here is another new comment about this whole situation:

The Dutch Government is wrong to say that the question of human rights is irrelevant to the question of immunity. The ceding of sovereignty to an international organization is conditional upon adherence by the organisation to human rights standards equivalent to those prevailing in the country concerned. Otherwise a country could duck its human rights obligations simply by founding or joining an international organization. This condition of equivalence (the rights need not be explicitly the same, but must deliver the same effect) is implicit in all treaties or conventions setting up IOs.

The Dutch Court of Appeal indeed found that the protection available to SUEPO and the EPO staff was inadequate, both in terms of the ways in which the staff could not enjoy normal Union rights, and also in terms of the lack of any effective remedy in the form of timely access to a suitable court (the ILOAT only taking complaints from individuals, not unions, refusing oral hearings, and taking many years to render its judgments).

The Seat Agreement with the Netherlands and the Protocol on Privileges and Immunities is a standard one, which does not contain any special clauses. It accords a limited immunity, and in theory enforces co-operation with the Dutch Authorities on labour law and health law. Of course this co-operation has always been resisted by the EPO.

For these reasons the Vice-President of DG1 is on very shaky ground when he proposes to defy any negative Supreme Court ruling. The Dutch Government would also be gravely embarrassed by such defiance. If the Supreme Court decision is favorable to the EPO and the Dutch Government, it merely postpones the inevitable until case (against the Dutch Government) reaches the European Court of Human Rights.

In the coming days we will gradually make visible more political actions against the EPO in Europe. We just need to anonymise a few things so as not to compromise the ongoing processes. ⬆

"Decadence is a difficult word to use since it has become little more than a term of abuse applied by critics to anything they do not yet understand or which seems to differ from their moral concepts."

--Ernest Hemingway

Update (6/2/2016): SUEPO has produced this additional (alternative) translation of the article above [PDF].