ILOAT Judgment 4551, as explained here last week
The Central Staff Committee (CSC) of the EPO has circulated material which is applicable to many institutions where management tries to interfere with staff communications. What's interesting is that after Benoît Battistelli's term we have seen his compatriot António Campinos doing nothing at all to improve things. As we showed years ago, he actively interfered with correspondence between staff representatives and their colleagues. He had no intention of fixing this.
"The Tribunal’s ruling is, as usual, coming far too late to have a truly meaningful effect."As it turns out, based on a ruling nearly a decade late, this was all along unlawful.
The CSC notes that "[o]n 6 July 2022, the Tribunal ruled in Judgment 4551 that the EPO Communiqué of 31 May 2013 restraining the use of email to no more than 50 recipients without prior authorisation breached the fundamental right to freedom of association. The Tribunal considered that the true reason was to exercise prior censorship on the content of communications (consideration 11, p. 15, last €§)."
"It also confirmed that the mass emails of the staff representation and unions at the material time did not exceed the limits to freedom of opinion and speech, and hence did not justify a mechanism of a prior authorisation (consideration 11, p. 16, last ۤ - p. 17, last ۤ)."
"After 9 years of breach of freedom of communication (including 4 years during the mandate of Mr Campinos), the Tribunal has declared the ban of mass emails unlawful. Mr Campinos must now lift the technical restrictions imposed on staff and their representation. It is yet another judgment confirming his lack of willingness to restore fundamental rights at the EPO on his own initiative."
Much of the same can be seen in the abstract below. "Since 2012," the CSC notes (yes, an entire decade!), "the EPO has been consistently testing the limits of Employment Law and feels only governed by the Tribunal’s ruling."
The Tribunal’s ruling is, as usual, coming far too late to have a truly meaningful effect. This enormous delay is being exploited by gutsy abusers, who treat laws, constitutions and treaties no better than toilet tissue.
For an HTML version (along with text and GemText later today) we've converted the whole publication and left it intact, verbatim, with no annotation added:
Zentraler Personalausschuss Central Staff Committee Le Comité Central du Personnel
Munich, 14/07/2022 sc22099cp – 0.2.1/0.3.2/5.1
ILOAT Judgment 4551
“You’ve Got Mail”
On 6 July 2022, the Tribunal ruled in Judgment 4551 that the EPO Communiqué of 31 May 2013 restraining the use of email to no more than 50 recipients without prior authorisation breached the fundamental right to freedom of association. The Tribunal considered that the true reason was to exercise prior censorship on the content of communications1. It also confirmed that the mass emails of the staff representation and unions at the material time did not exceed the limits to freedom of opinion and speech, and hence did not justify a mechanism of a prior authorisation2.
After 9 years of breach of freedom of communication (including 4 years during the mandate of Mr Campinos), the Tribunal has declared the ban of mass emails unlawful. Mr Campinos must now lift the technical restrictions imposed on staff and their representation3. It is yet another judgment confirming his lack of willingness to restore fundamental rights at the EPO on his own initiative. Since 2012, the EPO has been consistently testing the limits of Employment Law and feels only governed by the Tribunal’s ruling.
I. Changing his own rules during the game
Beginning of 2013, the use of email communication was governed by Communiqué No. 10 of 29 March 2006 and the announcement “Communication means for CSC and LSC” of Mr Battistelli dated 28 December 2011 allowing staff committee members to have recourse to mass emails. However, the social atmosphere at the EPO had started to deteriorate with the introduction in 2012 of the Investigation Guidelines severely criticised4 by the union as an authoritarian drift.
On 30 January 2013, Mr Battistelli appointed5 as Principal Director Human Resources the wife of his closest advisor, thereby raising the suspicion of nepotism at the EPO. Management then started to express6 disturbing intentions in the working groups on “performance management” and “well-being”. The deterioration continued with Communiqué No. 20 in which Mr Battistelli accused staff representatives of making unfounded personal attacks thereby triggering a rebuttal7 from those accused. During this period, staff representatives made use of mass-emails to timely inform all staff of the chain of events and the consequently planned industrial actions.
On 13 May 2013, Mr Battistelli issued Communiqué No. 26 entitled “When enough is enough – The use of mass emails within the Office” announcing the setting of new rules on mass communication.
________ 1 Judgment 4551 cons. 11, p.15, last €§ 2 Judgment 4551 cons. 11, p.16, last €§ - p.17, first €§ 3 From a technical point of view this task should require only a few minutes from BIT services. Indeed, more than decade before the issuance of the President’s Communiqué of 2013, staff committees and unions were already sending mass emails to all EPO staff without any hindrance from the Administration. 4 “Investigation Guidelines = EPO becoming a Police State”, SUEPO Munich paper of 15.11.2012 (su12112mp) 5 “New Principal Director Human Resources as of 1 February 2013”, VP4 Communiqué of 30.01.2013 6 “Report on the CSC with the President on 20 November 2012 in Munich”, CSC paper of 26.11.2012 (sc12122cp) 7 “Story-telling by Mr Battistelli”, SUEPO paper of 27.02.2013 (su13024cp)
Shortly after, on 15 May 2013, the union reacted8 with a “translation into plain English” containing a satirical cartoon.
The next day, on 16 May 2013, a meeting9 took place between Mr Battistelli and the Central Staff Committee (CSC) during which Mr Battistelli informed of his intention to ban mass emails which had not obtained the requisite authorisation (see his Communiqué 27).
On 31 May 2013, the Vice-President of DG4 (Mr Topic at the material time) issued a Communiqué entitled “Communication in the workplace” announcing that as from 3 June 2013 only authorised employees would be able to send emails to more than 50 recipients.
II. Judgment 4551: the ban on mass emails of more than 50 recipients is unlawful
On receivability The complainants challenged the Communiqué No. 26 and the Communiqué of 31 May 2013. They were at the material time permanent EPO employees and also elected members of the staff committee and executive members of the SUEPO trade union.
In their capacity as staff representatives, they argued that the ban on the use of mass emails affected them in their daily work since they could not “maintain suitable contacts with the staff” nor provide “a channel for the expression of opinion by staff” (Article 34(1) ServRegs).
In their capacity as individual employees they alleged an infringement of their rights to freedom of association, communication and speech which are granted to EPO employees.
The Tribunal confirmed (cons. 3) that each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary element of their employment (see Judgment 4194, cons. 7; Judgment 911, cons. 3).
According to the Tribunal’s case law, a general decision cannot be challenged by a staff member unless and until an individual decision is taken, “[h]owever there are exceptions where the genera decision does not require an implementing decision and immediately and adversely affects individual rights.” (Judgment 3761, cons. 14). This is equally true regarding the right to associate freely (Judgment 496, cons. 6, and 3414, cons. 4).
The Tribunal considered that the Communiqué of 31 May 2013 immediately and directly affected the right of staff members to freely associate, by stating that as from 3 June 2013 emails sent to more than 50 recipients would be allowed only if authorised, and, if not, they would be automatically blocked and not dispatched. As to Communiqué No. 26 of 13 May 2013, it was the first step of the process; therefore, it was properly contested together with the final Communiqué of 31 May 2013.
On the merits Freedom of association necessarily involves freedom of communication
The Tribunal recalled (cons. 9) that there can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy. It is recognised as a right by the Tribunal as well as by a large number of international conventions and declarations, as enshrined in Article 30 ServRegs providing that “Permanent employees shall enjoy freedom of association; they may in particular be members of trade unions or staff associations of European civil servants”.
The role of staff associations or unions is to represent the interests of members primarily in dealing
________ 8 “Communiqué No. 26 – Translation into plain English”, SUEPO paper of 15.05.2013 (su13068cp) 9 “Note to staff on the Meeting with the President on 16 May 2013”, CSC paper of 22.05.2013 (sc13074cp)
with their employing organisation on issues concerning the staff. Staff associations or unions should be able to do so unhindered or uninfluenced by the Administration of the employing organisation. Were it otherwise, the role would be compromised (see Judgment 4482, consideration 8).
Freedom of association necessarily involves freedom of discussion and debate (cons. 9, p.12, last ۤ), as well as freedom of communication, information and speech in all forms (cons. 10). Such rights are vested not only in their authors (usually the staff representatives), but also in the recipients. Every limitation to the right of staff representatives to send mass emails to the staff members, is also a limitation to the right of the staff members to receive mass emails.
Free communication, information, and speech also imply:
i. the right to the confidentiality of communication, information, and speech; and ii. the right to freely choose the means by which the communications are sent, information is provided, and speeches are given.
Like any other freedom such freedom has its bounds
In the proceedings, the Administration abundantly cited Judgment 3516 in which the Tribunal held that, in specific cases, a prior authorisation for the dispatching of mass emails could be justified as “the right to freedom of speech does not encompass action that impairs the dignity of the international civil service, or gross abuse of this right and, in particular, damage to the individual interests of certain persons through allusions that are malicious, defamatory or which concern their private lives.”
The Tribunal noted (cons. 9) that an organisation acts unlawfully only if the conditions for implementing a mechanism in practice leads to a breach of that right, for example by an unjustified refusal to circulate a particular message (see Judgment 3156, considerations 15 and 16).
When considering the Communiqué No. 10 of 29 March 2006 and the announcement of 28 December 2011, the Tribunal concluded that the EPO had actually already reached a reasonable balance in the use of mass emails (cons. 11).
The Communiqué of 31 May 2013 is unlawful
The Tribunal considered (cons. 11) that the Communiqué of 31 May 2013 is unlawful because it sets out an indiscriminate limitation, without providing specific reasons for the prior authorisations, irrespective of technical difficulties for the dispatch, and moreover for an indefinite time. In the view of the Tribunal, the wording of the two impugned Communiqués revealed that the true reason for the requirement of the prior authorisation was to exercise a prior censorship on the content of the communications (cons. 11).
Contrary to Judgment 3156 (cons. 16), the Tribunal held that in the case of the EPO, prior authorisation was imposed as a general preventive measure, independent of specific violations without any time limit.
In the proceedings, the Administration filed as evidence several communications from the staff representation or the union, and focused in particular on the SUEPO paper10 of 15 May 2013 denouncing nepotism at the EPO with a satirical cartoon.
The Tribunal considered the evidence at hand and was satisfied that it did not exceed the limits of freedom of opinion and speech, and therefore did not justify the mechanism of prior authorisation. Staff representatives have the right to criticise the employer. In the present case, the measures taken by the EPO were disproportionate (cons. 11). The EPO is not allowed (cons. 12) to impose certain communication means (such as, in the present
________ 10 “Communiqué No. 26 – Translation into plain English”, SUEPO paper of 15.05.2013 (su13068cp)
case, the dedicated intranet webpage) rather than others (the mass emails). This is particularly true where the means offered (or imposed) are more complicated and less viable than the other ones technically available, or are under the supervision of the EPO itself.
Finally (cons. 12), the ability of a body representing the staff to circulate emails to all staff members is not “a privilege”. Such body “has a legitimate right to avail itself of this facility, unless there is good cause for restricting it” (see Judgment 3156, consideration 14).
Decision
In view of the violations of the right to freedom of association, Communiqué of 31 May 2013 is set aside in part, and the former rules on mass emails in Communiqué No. 10 and in the announcement of 28 December 2011 reinstated.
III. Did Mr Campinos attempt to remedy the situation before the Judgment?
After joining the EPO, on 5 November 2018, Mr Campinos announced11 a pilot allowing staff committees to send mass email invitations for two of their respective general assemblies per year. Such invitations could only contain the place, date and time of the assembly and the agenda items. No other content was allowed. Even these invitations required prior approval of VP4 and could only be sent by the EPO services and not directly by the respective staff committee.
When the Covid-19 pandemic broke out in 2020, the Office premises were closed and teleworking became the rule. In order to maintain suitable contacts with staff in the new virtual environment, the CSC asked the ban on mass-emails to be lifted. Mr Campinos refused. Mr Campinos also turned down the requests for running Technologia surveys on @epo.org email addresses.
On 18 November 2020, a meeting took place between Mr Campinos and SUEPO. Mr Campinos addressed12 the topic of mass emails as follows: “In any case, if SUEPO wants back access to mass-emails, it would be only in the framework of a Memorandum of Understanding. SUEPO will lose in Geneva anyway.” Since then SUEPO never met with Mr Campinos again.
On 30 August 2021, Mr Campinos sent to the CSC a “Draft Agreement on the use of communication between the EPO and the CSC” and announced13 its aim at “focusing on the safeguards to maintain professional decency according to ILOAT standards in all communication”.
The proposal was actually below all standards and could not be considered as serious. Essentially, the document defined that mass emails would only be sent to staff members who had priorly opted in (like for RSS feeds). It also made reference to Judgment 3156, cons. 15 to justify that the President would still be allowed to suspend the sending of mass emails temporarily or permanently if they are not to his taste.
In the meantime, even the sending of Christmas wishes by the staff representation remained censored14 in December 2021, whereas the Administration did so.
The Administration actually used the above proposal in legal proceedings before the Tribunal to argue that the matter was on the verge to be settled.
________ 11 “Communication means for Staff Representation Certain mass emails permitted”, President Communiqué of 05.11.2018 12 “Report on the SUEPO meeting with the President on 18 November 2020”, SUEPO paper of 01.12.2020(sc20037cp) 13 “Report on CSC meeting: Update on strike regulations, the New Normal and Social Agenda 2021”, Communiqué of 17.09.2021 14 “Censorship of Christmas wishes”, LSCMN paper of 12.01.2022 (sc22001mp)
IV. Conclusion After the illegal strike regulations15, the “Social Democracy” interference into staff representation elections16, the ruling of the Tribunal on the unlawful ban on mass emails17 is the third of the kind sanctioning an EPO breach of the fundamental right to freedom of association. The unlawful ban spanned over 9 years including 4 years during the mandate of Mr Campinos.
Since 2012, the EPO has been consistently testing the limits of Employment Law and feels only governed by the Tribunal’s rulings. Mr Campinos will be President of the EPO until 2028. It is high time for him to reconsider his choice of advisors who have placed him in the untenable position of Head of an International Organisation who has repeatedly violated fundamental rights. We also question his decision to have the contracts of these advisors and high managers very recently renewed for another 5 years until 2027/2028.
Following Judgment 4551 the CSC addressed Mr Campinos by letter on 7 July 2022 stating that “we count on the immediate removal of all barriers to sending of mass emails by the CSC (and the LSCs) to the respective staff population”. At the time of drafting the present paper, the free sending of mass emails by staff committees is still impossible.
We will keep you posted.
The Central Staff Committee
“A strange rumour has recently spread across Europe in some media, political circles and even with national judges: that the EPO has not been respecting fundamental human rights. What an accusation!” Management public statement18 of 18 March 2015
________ 15 Judgments 4430-4435 16 Judgment 4482 17 Judgment 4551 18 https://www.epo.org/news-events/news/2015/20150318_de.html