04.03.15

The EPO’s Dutch Appeal Court Judgment Controversy: List of Political Interventions

Posted in Europe, Patents at 6:18 am by Dr. Roy Schestowitz

Epicenter of EPO controversy, not just windmills

Summary: Dutch Socialist Party and Labour Party (among others) denounce the EPO’s actions after newspaper articles in the Netherlands

SEVERAL sources contacted Techrights last month, sharing with the site a lot of documents that relate to the Dutch scandals. One source said s/he would send “press releases and questions raised by Dutch parliamentary members of the PvdA (Labour Party) and SP (Socialist Party) in the Dutch Parliament (Tweede Kamer) and the European Parliament.”

Now that we finally have it all organised chronologically and logically we can present it in the interest of retention and future reference. We shall start with the Socialist Party, then proceed to other parties and some bodies outside of Netherlands. A lot of interventions could be found all over the place.

The European Federation of Public Service Unions was probably the latest to intervene. There was also the Dutch Labour Party, among others. Then there is the response from SP (Socialist Party). SP stated the following: (English translation [PDF])

SP: GOVERNMENT MUST NOT PERMIT HUMAN RIGHTS ABUSES

26 Feb 2015 • The Court of Justice in The Hague last week ruled that the European Patents Organisation (EPO) is in conflict with important European fundamental rights, such as the right to strike. Security and Justice Minister Ivo Opstelten is, however, refusing to give effect to the judgment, on the grounds that the EPO – not an EU institution, but one with thirty-eight member states, including all EU countries – is an independent organisation and therefore enjoys immunity. SP Member of Parliament Michiel van Nispen finds this reasoning absurd, he says. ‘The minister is thus approving the silencing of trade unions and the fact that workers can’t in the end enforce their rights,’ he points out. ‘Independent organisations should not be hampered in their functioning, but that doesn’t mean that they have carte blanche to transgress human rights and ignore judicial rulings.’

The EPO has for a number of years been the site of conflict between management and workers. The organisation’s director refuses to recognise trade unions and even seeks to ensure that there is no contact between unions and EPO employees. The Court of Justice has ruled that this represents a limitation on the right to strike and in doing so transgresses fundamental principles of an open democracy and the democratic rule of law. SP Member of Parliament and labour specialist Paul Ulenbelt agrees, complaining that ‘this problem isn’t new. In the past, I’ve worked with the main Dutch trade union federation, the FNV, to hold the EPO liable for an occupational disease. The action failed because of their immunity. Social Affairs and Employment Minister Lodewijk Asscher should be persuading the European Union to limit the immunity of independent organisations to what this exception was intended for.’

Van Nispen and Ulenbelt both insist that the immunity and inviolability enjoyed by independent organisations must not lead to human rights abuses. They have asked the two government ministers responsible respectively for Justice and Employment, Opstelten and Asscher, to explain how to ensure that the workforce can access their rights and unions are not outlawed.

Here is the English translation (with original) [PDF] of additional questions put forth by the Socialist Party (see English-only version [PDF]):

Questions by the members Van Nispen and Ulenbelt (both SP) to the Ministers of Security and Justice and Social Affairs and Employment on the failure to respect the rights of staff unions (submitted March 2, 2015).

Question 1
Is it true that a conflict has been taking places for years between the management and a large part of the workforce at the European Patent Office (EPO) in Rijswijk? Is it true that the Director of the EPO does not recognize the staff unions and refuses to engage in dialogue with them, that e-mail traffic is blocked between the unions and members, that the right to strike has been restricted and that employees who express their disagreement are threatened with dismissal? ¹ What is your reaction to this?

Question 2
What is your reaction to the ruling of the Appeal Court in The Hague that the EPO is violating the fundamental principles of an open and democratic state based on the rule of law and that its failure to respect the rights of trade unions to engage in collective action and collective bargaining is contrary to the European Convention on Human Rights? ² How can this judgment, in which the Court ordered the contested measures to be revoked, be implemented?

Question 3
Why have you ordered that bailiffs cannot execute the judgment because of the immunity that this international organization is purported to have in the contracting states? ³ On what grounds exactly? Can you explain your decision in detail?

Question 4
Does this mean that a clear judgment such as that issued by the court last week is to have no consequences? Do you not find this to be an undesirable situation?

Question 5
What procedures exist for the staff and unions to enforce their rights? Are these effective?

Question 6
How far precisely, in your opinion, should the inviolability and immunity of an international organization extend?

Question 7
Do you believe that this immunity may ever extend to the point that an organization such as the EPO can violate fundamental rights which are generally recognized in Europe, without parties such as staff unions having access to an effective means of legal recourse against it?

Question 8
Do you agree that the rules regarding inviolability and immunity were never intended to be used to violate rights with impunity and to muzzle staff unions?

Question 9
Are you willing to do something as quickly as possible, but in any case to make use of the Dutch Presidency of the European Union to impel the EU to limit the immunity to serve the purpose for which it was intended? If not, why not?

Question 10
How can we prevent an international organization that enjoys immunity from doing whatever it wants? How is it ensured that the staff and the unions are not treated as “outlaws”?

Explanation:

These questions are in addition to previous questions from the members Kerstens and Maij (both PvdA), submitted February 27, 2015 (question number 2015Z03533 ).

¹: Volkskrant, 26 februari 2015: «Opstelten negeert vonnis gerechtshof». http://www.volkskrant.nl/politiek/opstelten-bureau-mag-vakbond-weren~a3873491/
²: Gerechtshof Den Haag, 17 februari 2015, C/09/453749/KG ZA 13-1239
³: Aanzegging ex artikel 3a, tweede lid, van de Gerechtsdeurwaarderswet, 23 februari 2015

Also see these original questions in Dutch [PDF].

PvdA’s Kerstens and Maij asked the following questions [PDF], as mentioned the other day:

Questions by the members Kerstens and Maij (both PvdA) to the Minister of Security and Justice in the matter of the Judgment issued by the Appeal Court of the Hague against the European Patent Organisation (submitted 27 February 2015).

Question 1. Are you aware of the article “Opstelten: Appeal Court Judgment does not apply to European institution” published in the Volkskrant on 26 February 2015?

http://www.volkskrant.nl/binnenland/opstelten-bureau-mag-vakbondweren~a3873491/

Question 2. Do you remember the earlier questions regarding working conditions at the EPO? Is it true that the tense situation continues to exist, including the restriction of the right to strike?

Question 3. Is it true that the EPO refuses to revoke the controversial measures in accordance with the judgment of the Appeal Court? If yes, what are the reasons for this?

Question 4. Is it true that you are not willing to facilitate the execution of the judgment as is usual in The Netherlands? If yes, can you explain your position? What is the legal basis of your power to prevent the judgment’s execution? How often have you made use of this power in the last five years?

Question 5. On which legislation and international treaties does your decision to block the judgment’s execution rely? Have you considered a more dynamic application of the existing legislation?

Question 6. Can you give an overview of recent European and Dutch jurisprudence relating to conflicts between the immunity of international organisations and the judgments of domestic courts?

Question 7. What is your reaction to the opinion of experts that your position is at odds with the rule of law and that you prioritise immunity over human rights? What is your reaction to the statement that this erodes the authority of the courts? What is your reaction to the statement that this leads to a further worsening of the existing problem of international organisations that place themselves above the law?

Question 8. What exactly do you mean when you say that the matter has “our attention” and “that of other member states”? What does this attention consist of and what is it aimed at?

Question 9. Is it possible that one of the parties appeals to the Hoge Raad (Dutch Supreme Court) or that “cassation in the interest of the law” is requested? Do you intend to request cassation in the interest of the law?

Question 10. Have you taken note of the recent ILO agreement between employers and employees regarding the right to strike and ILO Convention 87?
Can you explain how the situation at the EPO relates to ILO Convention 87?

The Dutch Labour Party has also responded and here is the English translation of the press release [PDF]:

Conflict about social rights at the European Patent Office Is Europe applying double standards?

Why do employees of the European Patent Office in Rijswijk not have the same social rights as other workers in the Netherlands?

That is the question put by Dutch Labour Party MEP Agnes Jongerius to the European Commission in reaction to the long-running conflict between management and staff at the European Patent Office.

The employees of the patent office have no say, never mind co-determination, in relation to their working conditions at the Office. Their right to strike is severely curtailed. According to
the management, the EPO is an international organization, which may determine its own staff regulations completely independently.

“Obviously that is crazy,” says Agnes Jongerius. “In Europe we recognise the European Charter and the European Convention on Human Rights. In those legal instruments matters such as the right to strike are well-defined. And these norms are not supposed to apply to employees of what is – nota bene – a European agency. Is Europe applying double standards?”

The workers received some support in their fight this week from the Appeal Court in the Hague. The Court agreed with the staff that the EPO was violating fundamental principles of the rule of law. But VVD Minister Ivo Opstelten decided to consign this verdict to the wastepaper-basket. He is of the opinion that the EPO as an international organization is immune to the judgments of a national court.

Agnes Jongerius now wants the European Commission to intervene in the matter. And, also in the interests of all other European offices and agencies, to establish that European workers cannot and should not be deprived of their social rights. 2700 employees work at [the Hague sub-office of] the European Patent Office which processes patent applications for the entire European Union.

For further information:
Paul Sneijder, Press Officer, Dutch Labour Party, Euro-Delegation, +32 475 386675

Agnes Jongerius was later mentioned by the following statement [PDF] (see original in Dutch [PDF]):

From: SD.Delegation NL Press
Sent: Friday, February 27, 2015 15:35
To:
Subject: Agnes Jongerius on the conflict at the EPO

Conflict about social rights at the European Patent Office Is Europe applying double standards?

Why do employees of the European Patent Office in Rijswijk not have the same social rights as other workers in the Netherlands?

That is the question put by Dutch Labour Party MEP Agnes Jongerius to the European Commission as a reaction to the long-running conflict between management and staff at the European Patent Office.

The employees of the patent office have no say, never mind co-determination, in relation to their working conditions at the Office. Their right to strike is severely curtailed. According to the management, the EPO is an international organization, which may determine its own staff regulations completely independently.

“That is of course crazy,” says Agnes Jongerius, “In Europe we recognise the European Charter and the European Convention on Human Rights. In those instruments matters such as the right to strike are well-defined. And that is not supposed to apply to employees of what is – nota bene – a European agency. Is this a case where Europe is applying double standards?”

The workers received some support in their fight this week from the Court in the Hague. The court agreed with the staff that the Office was violating fundamental principles of the rule of law. But VVD Minister Ivo Opstelten decided to consign this verdict to the wastepaperbasket. He is of the opinion that the EPO as an international organization is immune to the judgments of a national court.

Agnes Jongerius now wants the European Commission to intervene in the matter. And, also in the interests of all other European offices and agencies, to establish that European workers cannot and should not be deprived of their social rights.

2700 employees work at [the Hague sub-office of] the European Patent Office which processes patent applications for the entire European Union.

For further information:
Paul Sneijder, Press Officer, Dutch Labour Party, Euro-Delegation, +32 475 386675

Lastly, here is a letter sent by Agnes Jongerius [PDF]:

EUROPEAN PARLIAMENT

FORM FOR THE SUBMISSION OF A QUESTION WITH A REQUEST FOR A WRITTEN ANSWER (Article 130)

SUBMITTED BY: Agnes JONGERIUS

SUBJECT: Injustices at the European Patent Office (EPO) in The Hague

TEXT:
Following a case brought by the staff of the European Patent Office in The Hague complaining inter alia that they were not involved or had any say in (labour) matters of the Office, and that their right to strike had been restricted by the management, the Court held that as a European body the EPO can not fall outside the legal order created by the standards of the European Convention on Human Rights (ECHR) and those to which the EU is bound to adhere. The EPO set this judgment aside on 17 February.

1. In view of the fact that the Commission has delegated certain powers to the EPO, does the Commission agree that the EPO must adhere to the European Charter and the ECHR as a minimum requirement in all its activities, including its cooperation with the EU and its relations with the staff and unions?

2. Can the Commission confirm that it has expressed its concerns about the conduct of the EPO Administration and has requested it to restore social dialogue in line with the norms and values of the EU?

3. What steps does the Commission intend to undertake if the EPO does not follow the court’s ruling and continues to place itself outside European legal norms.

“The European Federation of Public Service Unions (EPSU) has also [showed interest in] an intervention,” a source told us. “Details can be found here and the EPSU page refers to a further intervention by the Dutch MEP Agnes Jongerius.” (original Dutch press release and translation above). There are documents in this page (letters, questions, etc.) and the introductory text states:

European Patent Office Management places itself outside of European legal order

Management of the European Patent Office stated that they would not respect the verdict of a Dutch court arguing immunity from the European legal order. This is not acceptable and EPSU has written to management in support of the unions demands.

Relations between the unions in the European Patent Office (represented by SUEPO, an affiliate of EPSU affiliated union USF) have not been well for sometime as management of EPO is blocking access of the union to negotiations, does not allow access to the email system and blocks the union’s emails to members and workers and is threatening workers that want to engage in industrial action with repercussions. Staff representatives that speak out openly also fear disciplinary action. The branch of the union in The Hague brought its case to the attention of the Dutch Court. It ruled in favour of the union, referring to the European legal order of the European Court of Human Rights (and the Social Charter of the Council of Europe).

The Dutch Court ruled that the European Patent Office:
- Has to grant access to the email system to the union. Trade union representatives that use their work email address for trade union related activities can not be threatened with disciplinary action. The union should be allowed to send bulk mails to members and workers;

- Prohibits management of EPO to impose a maximum duration of possible strikes;

- Management of EPO should allow the union to participate in collective bargaining within 14 days after the ruling.

The Director Mr. Batistelli however issued an internal communication in which he argued that EPO has immunity being an international organisation of Member States, that the verdict of the Dutch court does not apply and that he therefore does not intend to grant the demands of the Court. A conservative minister in the Dutch government approved this vision. It is contested by experts in international law. EPSU has written to management of EPO to respect the verdict and questions have been raised in the European Parliament.

More EPO interventions or public objections may have taken place and we would love to know if we missed important ones. More questions in the Dutch Parliament are in official sites, with original and English translations shown above. █

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