Bonum Certa Men Certa

EPO Insiders' Report on Repeal of the Conditions of Employment (CoE) for Interpreters and Award of contract for Healthcare Insurance Administration Services

posted by Roy Schestowitz on Jun 10, 2024

Report on the GCC meeting of 30 April 2024

The Central Staff Committee of the EPO is circulating a very large document (54 pages, mostly annexes) arguing that in an online "meeting" (fancy term for webchat) it discussed two main items.

For those who aren't familiar with the EPO, the workplace has been more or less 'demolished' by Benoît Battistelli (since 2010) and now whatever is left is being swept up and put in the ashtray by António Campinos. They're destroying the EPO for profit - or slaughtering the goose - by granting illegal software patents, creating new and illegal (and unconstitutional) kangaroo courts, and instructing patent examiners to break the rules. The whole thing is illegal from beginning to end, but the EU is too focused on Putin's Russia to even care about its own corruption. It is really that bad.

From the latest publication (page 1):

Dear Colleagues,

The General Consultative Committee (GCC) met by videoconference on 30 April 2024. The following items were on the agenda of the meeting and the CSC members of the GCC raised their concerns and tried to get further clarifications:

• Repeal of the Conditions of Employment for Interpreters – for consultation GCC/DOC 2/2024

• Award of contract for Healthcare Insurance Administration Services – for information GCC/DOC 03/2024

The detailed and reasoned opinions by the CSC members of the GCC are annexed to this paper.

The Central Staff Committee

For easier access we're expanding (in the format sense) several original sections. Here's an overview about Repeal of the Conditions of Employment for Interpreters: (sans the annexes)

Opinion of the CSC members of the GCC on GCC/DOC 2/2024: Repeal of the conditions of employment of interpreters

The CSC members of the GCC give the following opinion on the repeal of the conditions of employment of interpreters GCC/DOC 2/2024.

The document abolishes the whole section of the Codex related to the conditions of employment of interpreters at the EPO.

On the consultation

1. On Friday 5 April 2024, the administration invited the Central Staff Committee (CSC) to nominate for a Technical Meeting on Thursday 11 April to “discuss the conditions of Employment for Interpreters, essentially a change of the legal model applicable for this crucial function” (see Annex 1, page 2).

2. On Wednesday 10 April, the administration sent a PowerPoint presentation titled “New model for securing interpreting services” containing limited content and nothing about the technicalities (see Annex 2) and postponed the Technical Meeting to Friday 12 April in the morning.

3. On Thursday 11 April, the CSC replied by email (see Annex 1) that “the nature of this topic, specifically being related to the employment conditions of interpreters, requires a legal and tax analysis, and possibly additional input from the colleagues concerned” and requested that the document be put “for information” in the GCC.

4. On Sunday 14 April, EPO interpreters addressed the staff representation and their line managers (see Annex 3) to express their shock that such proposals should be discussed internally at the EPO without any attempt to inform or consult the interpreters. They insisted that they shall be represented, duly informed and consulted on the plans under consideration before they progress any further. They called on the Office to postpone internal meetings and meetings with the Staff Representation about this matter until interpreters have had time to fully assess the implications of any changes and put forward their considered and informed opinion.

5. On Monday 15 April, the administration tabled in the General Consultative Committee (GCC), the document GCC/DOC 2/2024 (Annex 4) abolishing the whole section of the Codex related to the conditions of employment of interpreters (see Annex 5).

6. On Thursday 18 April, the CSC sent an open letter (see Annex 6) to the President and the Vice-President of DG5 in his capacity as Chairman of the GCC. The letter requested the missing documentation concerning the reform: the legal and fiscal assessments, the information concerning the issues of the interpreters’ affiliation to national social security scheme in a contracting state, the foreseen specimen “framework contracts”. The letter remained unanswered.

7. On Friday 26 April, EPO interpreters submitted to the administration a statement with annexes (see Annex 7). They expressed that they are united in opposing this proposal and called for maintenance of the 2002 Working Conditions, which have a long and proven track record of securing smooth cooperation between the EPO and its dedicated interpreters.

8. On Monday 29 April, EPO interpreters attended a Town Hall meeting organized by their line managers together with the Employment Law Department. The meeting was solely dedicated to the planned reform. The staff representation was not invited to the Town Hall meeting.

9. On Tuesday 30 April, the meeting of the General Consultative Committee (GCC) took place.

10. The CSC members in the GCC repeatedly asked that the alternative proposed in the document should be discussed. The Chair did not allow a discussion on this alternative.

11. The CSC members in the GCC requested that the item is reclassified “for information” instead of “for consultation”. A vote took place during which the 10 CSC members in the GCC voted in favour of the reclassification and the 10 members in the administration and the Chair of the GCC voted against. As a result, the item was maintained “for consultation”.

12. The missing documentation and explanations were never provided.

On the merits

The lack of bona fide consultation makes it impossible to formulate an exhaustive opinion on the content of the whole reform. The staff representation can only rely on assumptions and information retrieved from other sources than the administration.

On the starting point of the reform

13. The document presents as a starting point the question of the interpreters’ affiliation to national social security schemes raised in a contracting state as well as the necessity to reflect changes since 2003. The document does not mention which contracting state is referred to, what was the question raised nor which changes occurred since 2003.

14. In the GCC meeting, the Employment Law Department attempted to blur the issue by mentioning that several member states had an issue with the interpreters’ affiliation to national social security scheme. However, in the Town Hall meeting with interpreters, Employment Law had actually acknowledged that only one contracting state had an issue and that it was The Netherlands. According to interpreters, only 2.7% of their whole population reside in the Netherlands, namely 6 interpreters.

15. In the GCC meeting, we mentioned this information to Employment Law and the Language Services, and they confirmed it. Employment Law pretended that the 6 interpreters in the Netherlands are unique specialists in languages useful for the EPO. According to interpreters, this is not the case, and the EPO could well rely on other interpreters. The Language Services then argued that the administration could spread the work outside the Netherlands, but it would be a discriminatory solution. We noted in the GCC meeting that when the Netherlands had concerns with the Young Professionals program, the administration refrained from recruiting Young Professionals for the EPO site in the Netherlands. The administration did not view it as a discrimination in that case.

16. Finally, Employment Law alluded to the fact that the Netherlands had asked the EPO to become a contributor to national social security for interpreters working at the EPO. In their view, if the EPO were not doing so, the immunity of the organisation would be at stake according to the Seat Agreement with the Netherlands. Employment Law said that the problem had been a long-standing issue and that no other solution than abolishing the conditions of employment of interpreters was possible.

17. We asked in the GCC meeting several times for the reference to the part of the Seat Agreement relevant for the issue at stake, and never received an answer.

18. When checking the Seat Agreement, we could find only one article referring to immunity:

Article 31: Waiving of immunity

In the case of attachment by a third party, pursuant to a decision by the administrative or judicial authorities, of the salaries or emoluments owed by the Organisation to a member of its staff, the Organisation waives the immunity which it enjoys pursuant to Article 3, paragraph 1, of the Protocol unless it informs the competent authorities that it does not waive its immunity within fourteen days following the date of notification of the decision. 19. In view of the lack of information given, we can only make assumptions as to what the underlying problem could be in relation to this article.

On the legal basis

Section VIII mentions as sole legal basis the “Conditions of Employment for Interpreters”. This cannot be correct as the latter contain no provision for repealing themselves.

>On the risks of bogus self-employment

20. According to our information, the Netherlands is currently having a close look at major employers hiring freelancers. When a person registered as self-employed, a freelancer, or a temporary employee is de facto an employee carrying out a professional activity under the authority and subordination of another company, the situation is considered to be bogus self-employment. Such bogus self-employment is often a way to circumvent social welfare and employment legislation, for example by avoiding employer's social security and income tax contributions.

21. Interpreters working for the EPO currently have a hybrid status. For the time that they work for other clients, interpreters remain freelancers. For the time that they work for the EPO, interpreters are EPO employees protected by the PPI. Essentially, they do not pay national income tax for their EPO income. However, they pay for their own national social security contributions and for their national pension scheme.

22. If the Netherlands considers that EPO interpreters are under bogus self-employment because the EPO does not pay contributions, abolishing their EPO conditions of employment makes the situation worse in other countries of residence. Over 90% of EPO interpreters live in DE (90), FR (40), CH (30), UK (25) and BE (see Annex 7, page 7). In fact, by making interpreters pure freelancers with “framework contracts”, the EPO would still not pay contributions to national social security and the risk of bogus self-employment would be increased in all countries. EPO interpreters would then have to reduce their available capacity for the EPO. This goes against the objective of ensuring business continuity.

23. In the GCC meeting. Employment Law explained that its services were looking at the risks of bogus self-employment and that this would be solved in the future “framework contracts”. However, no copy of the “framework contract” was provided and no detail was given as to how the EPO thinks it could successfully mitigate the risk.

On the shift to framework contracts

24. The abolition of the conditions of employment of interpreters removes from the Codex regulations including: the statutory daily remuneration rates, working hours, the payment of overtime, the adjustment of the remuneration, protection in case of cancellations, reimbursement of travel costs and the entitlement to the daily substance allowance.

25. In the GCC meeting, we requested a copy of the future “framework contracts”. No copy was provided to us. It is therefore unknown which part of the conditions of employment will remain the “framework contracts”. Interpreters themselves are shocked that they are asked “to jump into the new model naked”.

26. Employment Law explained that all of the conditions of employment would remain in the framework contracts and that the document CA/35/24 would be amended to reflect that. We pointed out that this is not possible as the currently applicable articles 14 and 16 of the PPI cannot be applicable to interpreters anymore if they are not EPO employees.

27. According to our information, the OECD in Paris shifted to a “framework contract” model in 2018. Such a contract is signed at the beginning of the year by all freelancers with annexes relevant to interpreters. The OECD does not offer social security nor a pension scheme. The OECD remains the least attractive in comparison with other International Organisations such as the EU, UN, WTO, CoE. The latter do offer an attractive hybrid status to which interpreters are attached.

28. The EPO appears to plan to adapt its conditions to the low standard of the OECD. This is unwise. Contrary to the OECD, the EPO relied for decades on a pool of “highly talented” interpreters specialised in Patent Law. The EPO should rather be focused on maintaining attractive conditions to ensure business continuity instead of trying to save on responsibilities and liabilities.

On the lack of application of the PPI

29. In the GCC meeting we noted that the lack of application the PPI to interpreters would abolish Article 14(c) guaranteeing the inviolability for all their official papers and documents, including EPO documents.

30. The Language Services replied that they saw no issue as interpreters work for in the core business for opposition and appeals where the confidentiality of the case does not apply anymore. We are not convinced. As a matter of fact interpreters may be in possession of other EPO documents not directly related to the content of the case and which may be not available to the public (e.g. internal instructions, etc).

On national income taxation

31. The abolition of the conditions of employment of interpreters makes their EPO income taxable. To compensate for this taxation, the EPO proposes to increase the interpreters’ daily rates by 40%.

32. According to our information, in the Town Hall meeting, Employment Law justified that it arrived at the 40% figure by looking at the taxation across different countries and obtained an average of about 33% and added on top a +7% safety margin. This calculation was obviously wrong. To compensate for 40% tax, one needs to divide by 60% and hence multiply by 66.67%.

33. In the GCC meeting, the Language Services gave another explanation. They pretended that that they calculated a tax rate 28.75% and hence arrived at a 40% increase in fees.

34. According to our information, this lack of consistency of the administration damages the credibility of the administration in front of the interpreters.

35. In their document, interpreters explain that the calculated fee increase is insufficient in practice (see Annex 7, page 7) and that an average cannot fit all the situations.

36. In the GCC meeting, Employment Law stated that interpreters asked for a 50-60% increase and argued that this request have been heard.

On other financial issues

37. In their document, interpreters note the risk of retroactive liability for tax arrears (see Annex 7, page 5). They give as an example that interpreters working for the EU have been required to retroactively pay tax on past earnings from these institutions.

38. In the GCC meeting, Employment Law tried to reassure that for the time during which interpreters were EPO employees, there will be no taxation issues and no risk of taxation arrears. This statement was not substantiated by any evidence.

39. Many EPO interpreters are members of AIIC (Association Internationale des Interprètes de Conférence) and uphold its Code of Professional Ethics which includes the principle of equal pay for equal work. Employment Law promised that the EPO would abide by this principle. This information is absent from the GCC document and is impossible to verify as the “framework contracts” were not submitted to the GCC.

40. In their document, interpreters also note that the EPO may have to pay VAT in non-EU countries (see Annex 7, page 4). It is yet another aspect not commented upon in the GCC document. Conclusion

The CSC members in the GCC are asked to provide an opinion on a document which insufficiently informs the GCC members. The problematic provision justifying the need for the reform is not disclosed. The legal and fiscal assessments are not provided. The “framework contacts” are not annexed to the document. The EPO informed its interpreters on the reform only 1 day before the GCC meeting and two weeks after tabling the document in the GCC.

There were many reasons for reclassifying the document as “for information” but the managers appointed by the President and the Chair of the GCC decided otherwise.

The interpreters are shocked that such a reform was tabled in the GCC without having consulted them at any point in time. The reasons for the change were never explained and alternatives never discussed. The EPO is wrong in treating loyal employees in such a way.

For the above reasons, the Group 1 of the CSC members of the GCC can only be negative about the document.

Group 1 of the CSC members of the GCC

Annexes: Annexes 1-7

Further down in page 51 there's the following section:

Lack of information for having an opinion on GCC/DOC 02/2024: Repeal of the Conditions of employment for interpreters at the European Patent Office

The proposal GCC/DOC 02/2024 is of utmost importance not only for the interpreters but for all staff. A repeal of the Conditions of employment for interpreters at the EPO means the exclusion of a certain group of staff from rights provided for in the Protocol on Privileges and Immunities of the European Patent Organisation. Such a serious step requires extensive information, which must be provided in the consultation process.

The document states rather superficially that the question of the interpreters’ affiliation to national social security schemes was raised in a Contracting State. According to the document, the interpreters’ position under the national social security law is uncertain in the Contracting State at stake. There is no mention of the Contracting State in question, nor is any reference made to a national or international legal text which leads to uncertainty.

The reference to legal and fiscal risks relating to the current Conditions of employment for interpreters at the EPO thus remains an abstract risk that should be mitigated. Without even an approximate assessment of this risk, it is impossible to form an opinion on risk mitigation measures.

Moreover, there are evidently various alternatives to choose from as to how the abstract risk can be contained. On the one hand, there is the draft decision for the Administrative Council in Part II of the document. On the other hand, paragraph 15 of Part I of the document mentions the alternative of maintaining the interpreters’ status as employees of the Office and adjusting the current Conditions of employment for interpreters to reflect changes that have occurred since 2003.

However, the consequences of implementing the first alternative are not discussed in the document. For example, repealing the Conditions of employment for interpreters at the EPO would mean that Article 14 would no longer apply, which currently regulates that Article 14 of the Protocol on Privileges and Immunities of the EPOrg shall apply to interpreters. The interpreters would therefore for example no longer enjoy the inviolability for all their official papers and documents.

The second alternative is not elaborated at all in the document. However, the reference to an alternative demonstrates that it is necessary to weigh up several options. However, such a weighing cannot be meaningfully understood if one alternative is insufficiently analysed, and the other option is not presented at all. It is therefore not possible to form a well-founded opinion here either.

Finally, it is proposed to introduce a simplified model for securing interpreting services through framework contracts. However, only declarations of intent are presented for these framework contracts. No specimen framework agreement is included in the document. Nor does the document provide a legal basis to demonstrate that the intended framework agreements minimise the alleged legal and fiscal risks. Questions therefore remain as to whether, for example, such agreements do not open up new problems such as bogus self- employment.

As a side note, paragraph 4 of Part I refers to Article 7 EPC as the legal basis for the Office’s obligation to provide interpreters. This cannot be understood, because Article 7 EPC regulates the creation of sub-offices of the European Patent Office, it has nothing to do with interpreters. The information content of the document is further blurred by such inaccuracies.

The aforementioned shortcomings of the proposal could not be clarified at the GCC meeting on 30 April 2024 either. It might have been understandable not to want to denounce a particular Contracting State and therefore remain at an abstract level in the document. However, explicit reference was made in the GCC meeting to problems in the Netherlands. This reason can therefore no longer apply.

It can therefore only be concluded that relevant and material information for meaningful and effective discussions is missing. The consultation on GCC/DOC 03/2024 was not conducted in good faith. It is therefore impossible for us to give an opinion on the document.

Group 2 of the CSC members of the GCC

Finally, in the last pair of pages, the second item on the agenda is discussed:

Comments of the CSC members of the GCC on GCC/DOC 03/2024: Award of contract for Healthcare Insurance Administration Services

Dear chairperson,

Cigna as healthcare administrator plays a significant role in administrating and correctly implementing our EPO healthcare insurance scheme.

Our healthcare Insurance provides a comprehensive benefits package as an important part of our conditions of employment by the EPO.

We want the healthcare insurance administrator to be reliable, consistent, harmonized across sites, and reachable with timely delivery services.
This has a direct impact on the health and wellbeing of staff, pensioners, and their dependencies. Our insured population is aging, and this will bring an increased demand for a need for (health-)care and the expected medical cost inflation.

We are all active contributors and users of this EPO Medical insurance scheme.

However, the office ‘forgot’ to involve representatives of the CSC and the pensioners. When the appointed member of the CSC got involved, the call for Tender was already published on internet, and his role was limited to observer only!

In that context, we consider having a rightful claim to be involved in the whole tender procedure: bringing in our feedback about Cigna’ reimbursement policy (we have seen more initial rejections, discussions, disagreement handling, but then finally reimbursed on unclear grounds).

In addition to our involvement in the tender procedure, we would have liked to be involved in assessing staffs’ needs, redefine the technical specifications, upgrading service level agreements, striving for best practice and modernising our healthcare administration.

Although our Opinion is not formally requested, we support the awarding of the contract to Cigna, and we support the enhanced services to the plan members, the service to the office and modernisation of the tools, making our EPO healthcare administration fit for the future.

Some of our concerns are:

1) We expect that the staff and pensioners will be properly informed by an information campaign, informing them in advance of upcoming changes to the services and upgrades to the tools, like the new functionalities to Cigna App.

2) Concerning the financial implication for Cigna: ending up with important lower running cost of the scheme does not automatically mean “Cheaper is better”. We suspect that this is not a profitable exercise for Cigna and we hope this will not effect the provided services.

3) A number of optional (additional) medical services are mentioned in the Tender documents for future consideration,i.e.‘broadening of services’, make us suspicious in what the intentions are of the administration in further outsourcing of the in-house medical services.

4) Also the emphasis on ‘cost containment measures’, to which we in principle are not against, should not be applied to the detriment of an increased rejection of the send-in invoices, what would not be perceived by the insured members as high-quality service!

5) The principle of offering a ‘Medical providers network’ to the plan members is good if it actually works: being accessible and supportive for the plan members also in the Netherlands. In practice, this is actually not always the case where the proposed health care providers of this Network, International Health Clinic in Scheveningen and/or Art & Zorg do not accept new registrations for General Practitioners services! Therefore, this so called ‘Preferred Providers Network’ in the surrounding of The Hague needs to be further improved if we want to keep Rijswijk as PoE attractive enough for the future.

The CSC members of the GCC

Here's the full PDF for finer details and more context.

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