Series parts:

1. When EPO Does Not Control and Coerce the Judges — Part I — ILOAT 134th Session: Two More Bittersweet Victories for EPO Staff
2. YOU ARE HERE ☞ ILOAT Judgment No. 4550

Back in the day, EPO staff protested vigorously against the campaign of managerial bullying and "moral harassment" which Benoît Battistelli (l.) and his "Human Resources" enforcer Elodie Bergot (r.) conducted against CSC appointees Michael Lund and Aurélien Pétiaud.

Summary: Case 4550 [PDF] was lost by EPO management last week [1, 2] at the Administrative Tribunal of the International Labour Organisation (ILOAT); today we look closely into it

In the case of Judgment No. 4550, the complainant was Michael Lund from Denmark (now retired) and it’s worthwhile recalling the full background to this particular matter.

Back in 2014, Michael and his French colleague Aurélien Pétiaud [PDF] were members of the EPO’s Internal Appeals Committee (IAC). [PDF]

The IAC deals with appeals filed by EPO staff against management decisions and it is a "joint body" comprising members appointed in equal numbers by EPO management and by the Central Staff Committee (CSC).

Michael and Aurélien were not elected staff representatives but rather they were staff members with a recognised level of legal expertise who enjoyed the confidence of the CSC and had been nominated by it as members of the IAC.

At some point in 2014, their heavy workload did not allow them to deal with all of their tasks as IAC members, which include “completing opinions or dissenting opinions following the hearings and sessions within the deadlines provided.”

Michael and Aurélien had to make a difficult choice: either stop writing dissenting opinions on cases of previous sessions, or refuse to work on new cases. They made a decision not to attend an upcoming session of the IAC.

"Michael and Aurélien were not elected staff representatives but rather they were staff members with a recognised level of legal expertise who enjoyed the confidence of the CSC and had been nominated by it as members of the IAC."Battistelli was furious and threw one of his famous "tantrums". He accused them of insubordination and instructed his HR "dompteuse" Elodie Bergot to have them subjected to a politically-motivated disciplinary proceedings which led to their downgrading.

Michael was accused of obstructing the work of the IAC by refusing to attend a session of the committee. He was further accused of having committed, in the framework of the disciplinary proceedings, an additional actionable offence by disclosing confidential and personal appeal-related information to unauthorised third parties.

The majority opinion of the disciplinary committee recommended that the charges against Michael be dismissed. However, a minority found a breach of duty and recommended downgrading by a single step.

True to form, Battistelli ignored the majority opinion and decided that Michael should be downgraded in accordance with the minority opinion. However, Battistelli decided that the relegation in grade should be three steps - that is to say, two more than recommended by the minority opinion.

Both Michael and Aurélien appealed against their downgrading but they lost their cases before the ILOAT: Judgment no. 3971 of the 125^th session (Aurélien) and no. 4050 of the 126^th session (Michael).

"True to form, Battistelli ignored the majority opinion and decided that Michael should be downgraded in accordance with the minority opinion. However, Battistelli decided that the relegation in grade should be three steps - that is to say, two more than recommended by the minority opinion."ILOAT Judgment No. 4050 [PDF] - delivered on 26 June 2018 following the 126^th session of the Tribunal under the presidency of Italian judge Giuseppe Barbagallo - dismissed Michael’s complaint. The judgment focused on a single aspect of the case – Michael’s non-attendance at the IAC session - while ignoring the pertinent factual circumstances and dismissing what seem to be his valid reasons for not being able to participate in that session. Aurélien Pétiaud’s complaint had already suffered a similar fate during the preceding ILOAT session.

Amongst EPO staff [PDF], the disciplinary measures against Michael and Aurélien were widely perceived as being politically motivated. These managerial actions were seen as part of a vicious campaign of bullying and "moral harassment" conducted by Battistelli and his minions, in particular Elodie Bergot, against staff representatives and their nominees on the EPO’s joint bodies.

Nevertheless, in its judgments relating to these disciplinary cases, the Tribunal showed no understanding of the difficult situation in which Michael and Aurélien found themselves and it somehow managed to find the sanctions imposed on them to be “within the range of acceptability” or “not to be disproportionate”.

Battistelli for his part was not content with the imposition of disciplinary sanctions on the CSC-appointed members of the IAC. He wanted to punish them further for their perceived "insubordination" and so he decided to prematurely terminate their terms of office on the IAC.

"Amongst EPO staff, the disciplinary measures against Michael and Aurélien were widely perceived as being politically motivated."This was accomplished by means of the notorious "reform" bearing the title of "Social Democracy" - CA/D 2/14 [PDF], which was adopted by the Administrative Council of the EPO on 28 March 2014 on the basis of a proposal submitted to it by Battistelli.

Amongst other things [PDF], Battistelli’s Orwellian "Social Democracy" substantially restricted the CSC’s power to appoint its nominees to the EPO’s various joint bodies. It required the CSC to henceforth choose amongst its own elected members, whereas previously it could choose freely among all staff in active employment.

This meant that when CA/D 2/14 entered into effect on 1 April 2014, Michael and Aurélien and all other non-elected CSC nominees were no longer permitted to serve on the joint bodies to which they had been appointed.

The premature termination of Michael’s IAC appointment on the basis of CA/D 2/14 forms the subject of ILOAT Judgment no. 4550.

In this case, the Tribunal found in Michael’s favour, noting that "CA/D 2/14, by restricting the Staff Committee’s choice of persons it could appoint as members of the Appeals Committee, had a significant negative impact ... on the quality of staff representation within the Appeals Committee and, consequently, on the composition of that joint body, which is no longer balanced."

According to the Tribunal:

"…the obligation imposed on the Staff Committee to choose the members to be appointed on the Appeals Committee exclusively from among its own members substantially undermined, in various respects, the quality of the effective representation of staff on that body."

The Tribunal dismissed the EPO’s unsubstantiated and manifestly bogus claims to the effect that the impugned measures had been aimed at "improving the conditions of staff representation within the Organisation", noting that the CSC was clearly opposed to these measures and that there was no evidence that the Organisation was responding to a wish expressed by staff members.

According to the Tribunal:

"The EPO’s argument cannot therefore lawfully warrant the violation of the employees’ right to freely associate by restricting the Staff Committee’s powers and undermining the quality of staff representation on the Appeals Committee."

However, despite the fact that the Tribunal found in favour of the complainant, it dismissed his claim for "exemplary damages" against the EPO and merely awarded the paltry amount of € 100 as "moral damages" along with a further € 500 in costs.

"Battistelli for his part was not content with the imposition of disciplinary sanctions on the CSC-appointed members of the IAC."In the next part we will look at Judgment no. 4551, the second case from the 134^th session which confirms breaches of the fundamental rights of EPO staff due to the arbitrary and unlawful censorship of mass e-mails by the Office management. ⬆