03.22.21

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As Work/EPO Invalidity Appeals Rejected, More Reasons Emerge to Worry About the Campinos Regime

Posted in Europe, Patents at 11:48 am by Dr. Roy Schestowitz

Blog of Battistelli

Summary: Weeks after Campinos cuts off communication with the union he’s reported to have successfully influenced a decision on European software patents and now he meddles in internal tribunals as well (to the detriment of vulnerable staff, as usual — a Battistelli ‘hobby’)

The Central Staff Committee (CSC) of the EPO is looking after the health of the weakest or most vulnerable among EPO staff. This is what the union too has been doing, in turn rendering some of its leaders more vulnerable (subject or target of attacks from EPO management). SUEPO intends to fight on that front as well. Today we reproduce a document leaked to us by a recipient, as it clearly shows that Benoît Battistelli and António Campinos have become almost synonymous. Might as well call them Benoît Campinos and António Battistelli. Remember that the EPO has given many members of staff chronic health conditions; for starters, even though media never bothered covering this, 40% of EPO workers had Upper Limb Disorder (ULD) some years ago. It’s difficult if not impossible (or incredibly painful) to work that way, and as workload increases so will that pain. Who cares about labour regulations, right? With a pandemic, anything goes. Any violation that is…

“Remember that the EPO has given many members of staff chronic health conditions”We’ve decided to reproduce the item below as-is, though it relates to a document published some months ago (EPO Staff Representatation commented on the Appeals Committee).

Zentraler Personalausschuss
Central Staff Committee
Le Comité Central du Personnel

Munich, 19.03.2021
sc21036cp 0.2.1/5.2

Internal appeals against the New Career System and the Abolition of the Invalidity Lump Sum

At the beginning of February, Mr Campinos issued his decisions on appeals against two majors reforms of his predecessor: the New Career System and the Abolition of the Invalidity Lump Sum. Mr Campinos ignored the solid minority opinion in the first case and even refused to follow the unanimous opinion in the second case. The colleagues affected will have to challenge the decisions before ILOAT.

New Career System

The 2015 new career system
In 2015, the EPO introduced a new career system abolishing any seniority recognition, solely based on competition between staff and still unique among International Organisations. The change of working conditions was radical. Each year, around 40% of staff do not get any pensionable reward. Several hundreds of EPO staff filed appeals against the general decision CA/D 10/14, the implementing decisions transposing them into the new salary scale and the abolition of automatic step advancement.

The opinion of the Appeals Committee
The Appeals Committee (ApC) in its enlarged composition considered in its majority opinion that some of the appeals were irreceivable and the others were unfounded. However, the majority did acknowledge that the Office, when implementing the reform, could have done “more considerate management” and “a better communication exercise”. Regrettably, the majority also considered that the President does not have the requisite legislative power to make promises to staff regarding their career progression as it is a decision which is within the remit of the Administrative Council, although the President has the power to decide discretionarily, year after year, on the career progression of each of “his” appointees.

Mr Campinos decision
In his decision, Mr Campinos simply follows the majority opinion without commenting on it. One can therefore infer that Mr Campinos fully supports the view that any promise he makes is by definition non-binding on him and would actually be subject to a decision by the Council. This can therefore be taken to apply also to any promise Mr Campinos can make on the application of the positive outcome of appeals or judgments to all staff.


The ApC opinion came also with a strong minority opinion which Mr Campinos ignored in his decision. This attitude won’t improve the image of the Office before the Tribunal.

Next steps
EPO staff will need to file individual complaints in order to safeguard their rights. The matter will then have to be dealt by the Tribunal with the clear evidence after several years that career perspectives were either slowed down or blocked for a majority of EPO staff.

Abolition of the Invalidity Lump Sum

The 2015 sick leave and invalidity reform
The EPO regulations on sick leave and invalidity underwent radical changes in 2015. The changes described in CA/14/15 rev 1. and the Administrative Council decision CA/D 2/15 caused considerable unrest1 among staff. Prior to the reform, employment at the EPO included participation in a compulsory death and invalidity insurance scheme, for which premiums were paid from the salaries. This insurance scheme comprised a lump sum to be paid out in the event of invalidity. The lump sum served to cover loss of income due to invalidity. This was particularly important for staff with dependants. Under the new regulations, not only are the emoluments lowered, but also the lump sum was abolished altogether, without replacement or alternative. This put in difficult situation employees who are now much older and cannot hope to get a similar insurance on the private market at rates they can afford. Staff members may have paid 25 years or more for it, only to see it disappear at a time when they might need it.

The opinion of the Appeals Committee
Five years later, the Appeals Committee (ApC) unanimously concluded that, by abolishing the permanent invalidity lump sum without adopting any transitional measures to allow for a smooth transition to the new system, the Office breached its duty of care. More specifically:

• the Office did not provide for a transitional period during which it would assist its employees wishing to contract a private insurance covering the risk of invalidity.
• the Office did not consider any transitional measures regarding the situation of employees who already suffered from an adverse transitional medical condition at the time of the reform and whose permanent invalidity would have been established shortly after the reform.

In the light of the above, the Appeals Committee recommended that the President avail himself of the power accorded to him by virtue of Article 75 of CA/D 2/15 and take appropriate transitional measures.

Mr Campinos decision
In his decision, Mr Campinos by delegation of authority to Ms Simon (VP4), does not acknowledge the breach of duty of care and line up arguments demonstrating bad faith.

First, Mr Campinos pretends that “it is not practicable for the Office to identify which staff members would fall within the categories of staff to whom the ApC has indicated that transitional measures should apply”.
However, the ApC opinion is clear: they should be applied to all staff who were hired by the EPO before 1 April 2015 and to all staff who had medical conditions making them invalid shortly after the reform.

____
1 “Another severe attack on both dignity and fundamental rights of EPO staff” SUEPO paper (su15203cp) of
19.05.2015


Second, Mr Campinos argues that “it is not possible to obtain insurance with the same coverage as the former invalidity lump sum at a comparable cost. This issue is compounded by the passage of over 5 years (and changes of circumstances) between the abolishment of the invalidity lump sum and the present date”. Mr Campinos neither mentions nor substantiates the changes in circumstances. The time elapsed since the filing of the appeals is by far the most disingenuous argument. The Office bears the responsibility for the backlog of the ApC due to its wrong composition, which the Tribunal ruled on in Judgments 3694 and 3785. Furthermore, in the present case, the Employment Law Department of the Office took two years to send its position to the ApC and Mr Campinos took nine2 months to consider the ApC opinion and make a decision. Mr Campinos is actually making staff pay for the delay caused only by the Office itself.

Next steps
Once again, this decision forces individual staff members to challenge the case before the Tribunal, including those suffering from progressive degenerative diseases that will undoubtedly render them invalid. Such staff members are often not fit enough to defend themselves and therefore need help. Such need for action and the Office’s breach of duty of care is difficult to reconcile with the Office claiming that we are “Strong Together”. In recent meetings, Mr Campinos said that he would be ready to provide help to staff members in case of hardship. But EPO staff do not need or want charity. EPO staff needs clarity and legitimately expects the Office to stick to its rules and acknowledge its mistakes.

Conclusion

The days when Mr Campinos preferred to reduce litigation through settlement discussions seem now to be over. By selectively following ApC opinions to confirm two major negative reforms against EPO staff, Mr Campinos reveals one facet of his mandate: to protect and pursue the political legacy of his predecessor.

The Central Staff Committee

____
2 Two months should normally have been the limit.

Any further commentary would likely just detract. Readers can conclude (for themselves) how bad things have become at the EPO. Nothing has truly improved since 2018. The media has gotten a lot quieter, but that hardly helps anybody.

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