Decision From the Paris Court of Appeal Can Challenge the Diplomatic Immunity of the European Patent Office
A few weeks ago the Paris Court of Appeal served to "end [...] a period of lawlessness", according to a new article
THE staff union of the EPO is circulating a translation of this new article in French. It recalls Benoît Battistelli's suicide wave and speaks of what the implications might be for António Campinos, seeing that the European Space Agency has its immunity legally questioned after a death. The latest outcome, after an appeal, is negative for apologists of impunity.
Here is the English translation (deficient, automated):
SOCIETY - JUSTICEThe suicide of a European Space Agency engineer reopens the debate on the legal immunity of such entities
An internal report by the agency concluded that the employee had taken his own life in 2011 due to "work-related problems". When the case was brought by his parents, the French courts had to dismiss the case because of the legal immunity of European agencies vis-à-vis the country that hosts them. A decision by the Paris Court of Appeal has changed all that.
By Benoît Hopquin
Published yesterday at 17:45, modified at 08:44 - Reading time 3 min.
At the European Space Agency's European Space Research and Technology Centre in Noordwijk, the Netherlands, in 2009. BALINT PORNECZI / AFP
Can European law be altered because a man and a woman want to know why their husband committed suicide and are denied this simple request? This is the issue at stake in a decision handed down by the Paris Court of Appeal on 16 January. In what is bound to be an arduous piece of prose, its ruling puts a nail in the coffin of a fundamental principle that governs the many European agencies set up throughout the European Union: their legal immunity from the country that hosts them.
Read also | The investigation that is shaking up the European Space Agency
Denise and Daniel Kie er have been fighting for twelve years to bring to justice those who, in the couple's view, drove their son Philippe to take his own life at his home in Leiden, the Netherlands, on 20 December 2011, at the age of 38. An accomplished mountaineer, musician and polyglot, Philippe Kie er was an engineer at the prestigious European Space Agency (ESA). A gifted man, in short.
The Frenchman had been working at an ESA technical centre in the Netherlands since 2003. However, from 2009 onwards, he began to tell his parents about the systematic harassment to which he was subjected by some of his superiors. His appraisals soon described him as 'asocial' or 'antisocial'.
"autistic". The humiliations were public. "I don't want to see you any more", a boss shouted at her during a meeting. And then there was the irreparable: "I've been suffering martyrdom in my workplace for three years now. It had to end", he wrote in a farewell letter to his parents, found at the scene of the tragedy.
Impossible searches
An ESA internal audit report left little doubt as to why Philippe Kie er committed suicide. It concluded that "Philippe Kie er's suicide was caused by work-related problems". His act was "due to a chain of unintentional but fateful omissions at many levels", the audit added. The agency even decided to pay 189,722.40 euros in compensation to the parents. However, the ESA refused to accept the idea of moral harassment and the implication of the protagonists.
The family then brought criminal charges before the French courts, the country in which the ESA is headquartered. However, two investigating judges successively came up against the legal immunity enjoyed by the European organisation since its creation in 1975. This immunity is enshrined in an agreement signed at the time between the agency and France. The same principle governs the operation of all European agencies, in whichever EU country they are based. The idea is to avoid the cacophony (and competition) of local social rights. Only internal appeals are possible if a decision or sanction is contested. For the rest, the host country can go to court, but under limited conditions and only before an international arbitration tribunal.
Read also | Social situation worsens at the European Patent Office
The two French judges dealing with the case came up against this legal bulwark in turn. Requests for documents and letters rogatory went unheeded. Searches were impossible. Each time, the principle of immunity was referred back to them. Wearily, the last judge dismissed the case. But the Kieers did not give up. In 2014, their defence team, William Bourdon, decided to challenge the very principle of immunity before the French courts. An initial ruling on 4 November 2020 found against the Kieers and reiterated its absolute principle. "In short, immunity cannot be challenged... because of immunity", explains Bertrand Repolt, one of the couple's lawyers.
"End of a period of lawlessness".
However, on 16 January, the Paris Court of Appeal overturned this decision. In doing so, it relied on the case law of the European Court of Human Rights, which places a caveat on this principle of immunity if it results in a denial of justice. The Court of Appeal considered that this was the case, since the Kie er couple had no access to any legal remedy, even domestic. The judgement therefore rejected "the n de non-recevoir based on immunity" and decided that the Kie er couple had the right to bring their case before the French courts so that the latter could look into what had happened to their son.
ESA's lawyer did not respond to requests from Le Monde. This decision marks the end of a period of lawlessness in which international organisations were able to escape all judicial control by hiding behind their immunity, often to the detriment of their staff", says a pleased Mr Bourdon. They will now have to answer to the courts for their decision, particularly regarding the lifting of their immunity". In fact, the stakes in the judgment go beyond the Kie er case and even beyond that of the ESA. Other agencies have taken refuge behind this principle of immunity, which is assimilated by detractors to impunity, to introduce authoritarian management and allow hierarchies to establish a form of nepotism.
Read also | Such a good office
In 2012, a wave of suicides at the European Patent Office (EPO), which has its headquarters in Munich, Bavaria, and offices in The Hague, Netherlands, caused controversy. A Dutch court ruled in 2015 that the immunity was "disproportionate" and did not guarantee "the protection of the fundamental rights" of employees. At the time, however, the Dutch government refused to implement this court ruling, fearing that the manna represented by the EPO and the other European agencies present on its territory would be lost.
Benoît Hopquin
Around the same time the Dutch government also engaged in corruption with the EPO and participated in illegal acts, partly connected to a new building that was built there. Many EPO insiders have knowledge of it, but it never came out. Even if it did come out in full, who would hold the Dutch government accountable? It fancies the concept of immunity from the international community.
There is always a structural and functional deficiency when states resort to giving some organisations immunity, typically the ones which guard corporations' (and thus oligarchs') interests. WIPO, the World Intellectual Property Organization, is another example of this. █