One by One, EPO Attacks the Conditions of Employment of Workers (While Forcing Them to Illegally Grant Invalid European Patents, Playing With Monopoly Money)
EARLIER today the Central Staff Committee (CSC) at the EPO told staff some news about António Campinos and his "financial diet" plan for workers such as interpreters [1, 2], i.e. same as Benoît Battistelli, even when that goes against the law (something that the EPO hasn't obeyed in well over a decade).
The message said:
Shift to framework contracts adopted by the Administrative CouncilDear colleagues,
The Office is currently abolishing the conditions of employment of interpreters. Regulations are removed from the Codex 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.
A new system consisting of “framework contracts concluded with individual interpreters” is now put in place. The administration had invited the interpreters to a Town Hall Meeting on 10 July 2024 to announce to them already that if an interpreter did not sign up to the new "dynamic purchase system" by 2 September 2024, they would not be able to work for the EPO beginning of 2025. In this context, the application of interpreters in a first batch of summer/autumn shall not be seen as an endorsement of the reform but rather as the only way for them to continue to work for the EPO.
In parallel of the implementation, the Office submitted its proposal (CA/35/24 Rev. 1) for decision in the Administrative Council meeting of 10 and 11 October (AC/180). The proposal was adopted.
The feeling prevails among interpreters that they were presented with a fait-accompli without any timely and faithful consultation. After many years of excellent relationship between the EPO and its interpreters, the recent events have now resulted in a significant erosion of trust.
In advance of the meeting, the Central Staff Committee had sent on 2 October 2024, an open letter to the Delegations recommending to give a negative vote on the proposal and annexed its opinion submitted in the General Consultative Committee meeting.
We're reproducing the full letters from the CSC below:
European Patent Office
80298 Munich
GermanyCentral Staff Committee
Comité central du personnel
Zentraler PersonalausschusscentralSTCOM@epo.org
Reference: sc24059cl
Date: 02/10/2024
European Patent Office | 80298 MUNICH | GERMANY
To: Heads of Delegation in the
Administrative CouncilCc: Mr António Campinos
President of the EPOBy email:
council@epo.org
president@epo.orgOPEN LETTER
Abolition of the Conditions of Employment of Interpreters and shift to framework contracts (CA/35/24 Rev. 1)
Dear Heads of Delegation,
The Office has tabled for the meeting AC/180 a revised version (CA/35/24 Rev. 1) of its proposal to abolish the Conditions of Employment of Interpreters and to shift to framework contracts. Several amendments were made compared to the first version (CA/35/24) in particular in the section related to financial implications. The amendments are such that the opinion of the Budget and Finance Committee (BFC) should have been sought before tabling directly in the Administrative Council.
The revised proposal was tabled for consultation in a meeting of the General Consultative Committee (GCC) which took place on 10 July 2024. On the same day, the administration had invited the interpreters to a Town Hall Meeting to announce to them already that if an interpreter did not sign up to the dynamic purchase system by 2 September 2024, they would not be able to work for the EPO beginning of 2025. In this context, the application of interpreters in a first batch of summer/autumn shall not be seen as an endorsement of the reform but rather as the only way for them to continue to work for the EPO.
By letter1 of 8 May 2024, the Central Staff Committee (CSC) shared with the delegations its concerns on the first version of the proposal
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1 “Risks to interpretation services at the EPO”, CSC letter of 8 May 2024 (sc24026cl)
(CA/35/24). The revised proposal is still a matter of concern as detailed in the attached GCC opinion2. We stress and add the following:
First, the problematic provision justifying the need for the reform is not disclosed. The legal and fiscal assessments are not provided. The content of the discussions with the Dutch authorities is not revealed. The present hybrid model has long been standard in most international organisations which work with freelance interpreters (mostly alongside full-time staff interpreters).
Second, the alternatives to the proposal seem to have been introduced in the document with the sole purpose of setting them aside.
Third, the interpreters always paid for their own national social security contributions and for their national pension scheme. In the Netherlands, the interpreters pay the maximum for social security contributions already. The present proposal will thus not bring any additional contribution to the Netherlands. Furthermore, if the Netherlands considers that EPO interpreters are under bogus self-employment because the EPO does not pay contributions, abolishing their conditions of employment makes the situation worse in other countries. 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.
Fourth, the assessment of the costs of the present proposal is flawed. The proposed 40% increase in interpreters’ fees cannot be cheaper for the EPO than maintaining the current system and adding an insurance/pension contribution, as many other International Organisations employing interpreters do. Typically, they pay a contribution of 13-22% of the daily fee into a defined-benefit private insurance scheme, thereby ensuring that no long-term liabilities are generated for the organisation itself.
Fifth, the tender process is a matter of concern:
• insisting that interpreters provide a professional liability insurance when applying is unusual and a cause of concern for potential applicants;
• contrary to the assurances initially provided, the tender process is open not only to accredited interpreters, but to all – there is a risk of serious decrease in the quality of interpreting services;
• accredited interpreters, who have already worked for the EPO in some cases for decades and who are now reapplying for the same job, are asked to provide letters of references from other customers, invoices to other customers, details of number of days worked for other customers – it is “problematic” in terms of confidentiality and data protection;
• information is missing about the future induction/quality assessment to be set up in the new system – these functions will
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2 “Opinion of the CSC members of the GCC on GCC/DOC 9/2024” [ANNEX 1]
have to be internal at the EPO as of 1 January 2025 and those costs do not seem to have been integrated into the plan, nor do colleagues have any idea of how the system will function.
The EPO interpreters reported to us that expertise will be lost as a significant number of EPO interpreters have chosen not to submit a bid. The feeling prevails among them that they were presented with a fait- accompli without any timely and faithful consultation. After many years of excellent relationship between the EPO and its interpreters, the recent events have now resulted in a significant erosion of trust.
We recommend that the delegations give a negative vote on the proposal.
Sincerely yours
Derek Kelly
Chairman of the Central Staff CommitteeAnnex: GCC opinion on “Review of the conditions of employment of interpreters” (GCC/DOC 9/2024 & CA/35/24 Rev. 1)
Opinion of the CSC members of the GCC on GCC/DOC 9/2024:
Review of the conditions of employment of interpretersThe CSC members of the GCC give the following opinion on the Review of the conditions of employment of interpreters in GCC/DOC 9/2024 (CA/35/24, Rev. 1). The document is a revised version of former GCC/DOC 2/2024 (CA/35/24) submitted in the Budget and Finance Committee meeting of 23/24 May 2024.
The document abolishes the whole section of the Codex related to the conditions of employment of interpreters at the EPO (see opinion on GCC/DOC 2/2024, Annex 5) and proposes to replace them with a new model based on framework contracts.
On the consultation
1. In the Budget and Finance Committee meeting of 23/24 May 2024, delegations were asked for an opinion on GCC/DOC 2/2024 (CA/35/24). They asked for additional elements and for alternatives to be considered.
2. On Monday 17 June 2024, EPO interpreters attended a Town Hall meeting organised by their line managers together with the Employment Law Department. The meeting was solely dedicated to the planned reform. The interpreters were not provided with any revised document at this stage. The staff representation was not invited to the Town Hall meeting.
3. On Tuesday 25 June 2024, the administration tabled in the General Consultative Committee (GCC), the revised document GCC/DOC 9/2024 (CA/35/24, Rev. 1). The administration did not deem it necessary to organise a Technical Meeting with the revised document in advance.
4. On Wednesday 10 July 2024, the meeting of the General Consultative Committee (GCC) took place.
On the merits
The revised document still suffers from lack of information raised already in the opinion on GCC/DOC 2/2024. The staff representation can only rely on assumptions and information retrieved from other sources than the administration.
On the starting point of the reform
5. The document presents as a starting point the question of the interpreters’ affiliation to national social security schemes raised in a contracting state where only 7 interpreters reside (par. 7). The document does not mention which contracting state is referred to.
6. The administration admitted in the GCC meeting of 30 April 2024 that the contracting state was actually the Netherlands and did the same in front of the delegations in the Budget and Finance Committee meeting of 23/24 May 2024. This information should have now been added to the document.
7. In the GCC meeting of 30 April 2024, Employment Law admitted that the Netherlands 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. We asked in the GCC meeting of 30 April 2024 several times for the reference to the part of the Seat Agreement relevant for the issue at stake.
8. The revised document does not bring further additional information in this respect. The administration just amended the document to state (par. 8) that paying premiums to a national security scheme for employees goes against the principles of autonomy in employee matters and the Organisation’s independence towards its Contracting States. There is still no convincing explanation of exactly what is the underlying problem.
9. In the Town Hall meetings of 29 April and 17 June 2024, the administration admitted that it is still in negotiations with the Netherlands and admitted that they were not successful in the past two or three years in convincing them. The administration told the interpreters that the Dutch authorities “are very slow to respond”, “haven’t responded on this particular point”, etc.
10. The interpreters consider that they are left in the dark as to the content of the exchanges between the EPO and the Dutch authorities. They still do not understand why the repeal of their conditions of employment has to be done in such a hurry if negotiations are still ongoing with the Dutch authorities.
11. Overall, the interpreters consider that they have only been “informed” about the EPO’s plans. Despite several meetings with them, answers to questions they sent in writing and contractual suggestions inserted into the new framework, they remain however of the position that they were never actually “consulted” on the repeal of their working conditions. The frustration remains.
On the risks of bogus self-employment
12. 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
13. Interpreters working for the EPO currently have a hybrid status. For the time that they work for other clients, interpreters remain freelancers or employees of that other organisation. 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 on their income from the EPO. However, they pay for their own national social security contributions and for their national pension scheme.
14. 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 (20) (see opinion on GCC/DOC 2/2024, 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.
15. The revised document is now attempting to mitigate risks of bogus self-employment by introducing an obligation for the interpreters to limit their work for the Office (par. 14). The proposed framework contract contains a specific clause (page 12) that “[T]he Contractor shall not provide Interpreting Services for more than 70 (seventy) days in any given calendar year to the EPO”.
16. In the Town Hall meeting of 17 June, the procurement services gave another reason for the limit. According to them, the EPO Financial Regulations require any contract signed by the EPO to have a limit defining the contract’s value.
17. The introduction of the document mentions that the EPO needs interpreters with a solid basic knowledge of all technical fields (par. 2). Of the interpreters who successfully make it through the challenging onboarding phase, only very few currently cease to work for the Office due to this high degree of specialisation and the time they invest in this training.
18. However, the proposed model based on framework contracts putting obligations to limit work for the Office makes the return on time investment less interesting and reduces the opportunities of specialization via increased experience.
19. According to the revised document (par. 26), in 2023, interpreters worked for the Office between 0 and 102 days (par. 26). In the GCC meeting of 10 July 2024, Employment Law orally gave more detailed figures, some based on a document provided by the interpreters themselves on 14 May 2024:
• 5 interpreters work more than 100 days per calendar year for the EPO. They are based in Munich and and provide interpreting services for in-person meetings (e.g. for the Boards of Appeal).
• For 60% of the interpreters, the EPO's share of their total income is 50% or less. This means they earn half or more of their income from other institutions.
• For 20% of the interpreters, the EPO’s share of their income is 75% or more of their income from the EPO.
20. The limitation to 70 days of EPO work will therefore negatively affect the interpreters (namely at least 40). This detrimental situation is disproportionate when comparing it with the starting point of the reform caused by the Netherlands where only 7 interpreters reside.
21. The interpreters who are currently working more than 100 days per calendar year for the EPO are the ones are based in Munich and provide interpreting services for in-person meetings (e.g. for the Boards of Appeal). In the GCC meeting of 10 July 2024, the Language Services acknowledged that because of the limitation to 70 days of EPO work, they will have to call interpreters from elsewhere and pay travel and daily allowance costs on top of usual pay. In the Town Hall meeting of 17 June 2024, the Language Services gave more details and stated that the additional interpreters would be among the ones residing elsewhere in Germany, in Switzerland (Basel), in France (Strasbourg) and in Austria (Vienna). The additional travel and daily allowance costs do not appear to have been taken into account when assessing the financial implications of the proposed “framework contracts”.
On the shift to framework contracts
22. 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.
23. 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.
24. The EPO is planning 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.
25. According to our information, the “framework contracts” of the OECD specify the team strength for interpreting, the manning strength in Remote Simultaneous Interpreting (RSI) and in-person meetings. This is not the case for the EPO’s “framework contracts”. The interpreters have to rely on a gentleman’s agreement which is not binding. This is a matter of concern for interpreters.
26. In the Town Hall meeting of 17 June 2024, the Language Services explained that the “framework contract” is under German law and that it is not possible to have a contract which would have a place of jurisdiction in the state where the interpreter signatory resides. The “framework contract” mentions (page 16) that it will enter into force on 1 January 2025 and end on 31 December 2029 (“initial term”) and will be extended by periods of 1 year unless a Party has given six weeks’ advance written notice before expiry.
27. The EPO pretends to offer with the “framework contracts” "equivalent” conditions to those currently offered in the Service Regulations (see opinion on GCC/DOC 2/2024, Annex 5). However, the interpreters have no guarantee that in 5 years’ time they will remain subject to these “equivalent” conditions.
28. As the interpreters would not be employees of the EPO anymore as of 1 January 2025 because of the repeal of their conditions, there would be no obligation for the administration to consult the General Consultative Committee for any future change.
On the lack of application of the PPI
29. The lack of application of the PPI to interpreters would abolish Article 14(c) guaranteeing the inviolability for all their official papers and documents, including EPO documents.
30. In the GCC meeting of 30 April 2024, the Language Services said that they saw no issue as interpreters work in the core business for opposition and appeals where the confidentiality of the case does not apply anymore. However, in the Town Hall meeting of 17 June 2024 the Procurement Services told interpreters they should be careful when names are mentioned while they are interpreting and should not be repeated to anyone. This requirement is not mentioned in the “framework contracts”.
31. However, the “framework contracts” now feature a lengthy section on the duty of confidentiality and data protection shifting new responsibilities to interpreters.
32. First, statements like: “[t]he Contractor is also bound by this duty of confidentiality towards staff of the EPO. The Contractor must keep access to such confidential information to the minimum necessary for the performance of the Agreement” are broad. They are now a concern for interpreters.
33. Second, the interpreters are requested to assist the EPO in ensuring compliance with its obligations under the applicable Data Protection Rules of the EPO. However, as the contract is under German jurisdiction, any dispute will be solved by a national court on the basis of a text specific to the EPO.
34. This is a new complication which would be avoided if the EPO kept the interpreters as employees.
On national income taxation and other financial issues
35. 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% and the revised document adds a flat rate of 150 € for the preparation time that they spend on each assignment (par. 12).
36. Interpreters had explained in their document of 24 April 2024 that the calculated fee increase is insufficient in practice (see opinion on GCC/DOC 2/2024, Annex 7, page 7) and that an average cannot fit all the situations.
37. The revised document mentions (Annex 1, page 10) that “[p]urchasing power is guaranteed since the fee will be contractually linked to automatic inflation (EU-HICP)”. However, the “framework contracts” (page 13) mentions the fees will be adjusted by applying “HICP – Overall index, Euro area (changing composition)”. Such a discrepancy should not be in a document at this stage of the consultation.
38. In their document, interpreters note the risk of retroactive liability for tax arrears (see opinion on GCC/DOC 2/2024, 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.
39. In the GCC meeting of 30 April 2024, 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.
40. 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.
41. In their document, interpreters also note that the EPO may have to pay VAT in non-EU countries (see opinion on GCC/DOC 2/2024, Annex 7, page 4). It is an aspect not commented upon in the GCC document.
On the alternatives
42. The revised document now mentions alternatives. In the GCC meeting of 10 July 2024, Employment Law however confirmed that these are mentioned for the sole purpose of setting them aside.
43. The alternatives are:
1. Integration of the interpreters in the Office’s existing social security scheme
2. Offering a separate affiliation to a specific social security system
3. Terminating the contract of interpreters in the relevant Contracting State
44. In the Town Hall meeting of 17 June 2024, the Language Services explained that the Budget and Finance Committee agreed to a budget increase under 3 M€ per year and that this is the threshold without room for negotiation anymore
45. This argument is not made in good faith. Back in May, the document CA/35/24 submitted to the Budget and Finance Committee did not mention any alternative to the model based on “framework contracts” nor did it provide the financial implications of alternatives. The 3 M€ budget restrictions was made at the EPO’s sole initiative and calculated on the basis of one single proposal sent to the delegations.
Alternative 1: Integration of the interpreters in the Office’s existing social security scheme
46. The administration pretends that if interpreters are no longer affiliated to the national social security, then this may not be a desirable outcome for a large number of interpreters, who have established ties to their local social security system.
47. It is not clear how the administration can speak on behalf of the interpreters with “may” statements. In view of the Town Hall meetings held with interpreters, the administration should be able to say clearly what the latter think about it.
48. This alternative is presented by the administration as causing legal status issues and double insurance issues and unclarity in case of responsibilities. However, the revised document is still not explaining them.
Alternative 2: Offering a separate affiliation to a specific social security system
49. This alternative would consist in providing the interpreters with a similar coverage under an external solution via e.g. insurance companies. This solution would not create any long- term liabilities for the EPO. The external solution would need to be deemed adequate and agreed by each national authority of the nine Contracting States in which interpreters reside.
50. The revised document (par. 27) however pretends that the costs would still be higher than for the proposed model with “framework contracts”. However, the table (par. 36) mentions that the costs would remain between 2.9 M€ to 3.6 M€ per year while the model based on “framework contracts” is estimated at 2.87 M€. The difference in costs is not as dramatic as the administration implies it is.
51. The table (par. 36) assumes a health insurance premium in the range of 6.000 € to 9.000 € per person per year. The calculation for pension and long-term care are however not detailed.
52. According to our information, other International Organisations employing interpreters generally make an employer's contribution in the region of 13% of daily remuneration to a private insurance scheme. It is hard to see how this could be more expensive than the fee increases (+40%) and preparation fee of 150 € foreseen under the new “framework contracts” model.
53. The statements made in the document about the financial implications are incomplete and not convincing.
Alternatives 1 or 2 in other International Organisations
54. The revised document (par. 4) admits that several European institutions (e.g. the European Union and the Council of Europe) offer employment conditions broadly similar to those of the EPO in many respects, but with one major difference: they include elements of social security for external interpreters.
55. There is no explanation as to why what is possible in the European institutions and the Council of Europe is not possible at the EPO, and how the EPO differs from these.
56. In the GCC meeting of 10 July 2024, Employment Law explained that the European Commission and the Council of Europe told the EPO that a complementary insurance for external interpreters is “a mess that the EPO should not do”.
Alternative 3: Terminating the contract of interpreters in the relevant Contracting State
57. The revised document explains (par. 30) that this would entail legal risks and appear at odds with the Office’s values and legal requirement to “recruited on the broadest possible geographical basis from among nationals of the Contracting States” (Article 5(1) ServRegs).
58. The EPO is presently not offering employment conditions which are sufficient to attract job applicants from Nordic countries despite recruitment requirements having been lowered. We see nothing being undertaken to remedy the situation. Higher positions remain essentially attributed to employees coming from the talent pipeline from Alicante.
59. When the Netherlands had concerns with the Young Professionals program, the administration refrained from recruiting Young Professionals from the Netherlands. The administration had no issue with discrimination in that case. Currently, the situation remains highly unbalanced: there are 130 Young Professionals in Munich and only 18 in The Hague.
60. Experience shows that the EPO sees no issue in not respecting its principles in the practice. The reasons why the EPO is rejecting this alternative are therefore to be found elsewhere.
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 content of the discussions with the Dutch authorities is not revealed.
The reasons for the change were never explained. The alternatives were mentioned with the sole purpose of setting them aside.
For the above reasons, the CSC members of the GCC can only be negative about the document.
The CSC members of the GCC
It's not only about interpreters; they merely start with them. █