08.24.21

Expecting the Administrative Council of the European Patent Organisation to Actually Follow the Law…

Posted in Courtroom, Europe, Law, Patents at 2:24 pm by Dr. Roy Schestowitz

Video download link | md5sum 4449a20ad1a87e19292b30bd9031f5f5

Summary: The representatives of staff of the EPO, the Central Staff Committee (CSC), are approaching the Heads of Delegation of the Administrative Council of the European Patent Organisation along with their Chairman; they’re politely asking for better safeguards against systematic abuses of the law, including abolition of workers’ basic rights

The Central Staff Committee (CSC) of the EPO has distributed a letter, an open letter, and readers of Techrights typically ensure that we too can see a copy. This letter only partly concerns the unlawful regulations of Benoît Battistelli — regulations which António Campinos continued to exploit while keeping 100% silent on the court’s outcome (he doesn’t seem to care what tribunals say unless those tribunals are controlled by him).

“The intent is to raise awareness and garner sympathy from the Administrative Council of the European Patent Organisation (mostly a bunch of legal hacks rather than scientists).”The letter from the CSC mostly concerns the internal Appeals Committee, which was mentioned earlier this year and several times last year. The intent is to raise awareness and garner sympathy from the Administrative Council of the European Patent Organisation (mostly a bunch of legal hacks rather than scientists).

“On 7 July 2021,” the CSC said, “the Administrative Tribunal of the International Labour Organization (ILOAT) delivered several important Judgments on the rules governing the exercise of the right to strike at the EPO. The ILOAT found that virtually every single one of the strike rules blatantly and obviously violated the fundamental right to strike, that the President exceeded his competence when drawing up Circular No. 347 in 2013 and that the Circular is therefore unlawful in its entirety and is set aside. Already in 2015 a national court in The Hague, the so-called Gerechtshof, found that the EPO violated fundamental European rights. In view of the long list of violations of the fundamental right to strike identified by the ILOAT, the question can be raised of why a majority in the internal Appeals Committee (ApC) reached a completely opposite opinion, based on the same facts and arguments.”

Then they spoke of the internal Appeals Committee (ApC). “The members of the ApC are laypersons. However, the Chair and Vice-Chairs are expected to possess the qualifications required for appointment to high judicial office or be lawyers with experience in the area of employment law acquired at national or international level (see Article 111(3) ServRegs). A reasonably objective and informed person might question whether they would at times give up their independence and impartiality.

“The damage caused by the ApC’s massively wrong assessment of the strike rules and their application is considerable, both for the Organisation and for its staff.

• The Organisation is now stigmatised in the public eye as an employer that has been violating fundamental rights of its staff for over eight years and has been depriving them of an important tool for collective bargaining.
• Staff have also definitively lost confidence in the internal means of settling disputes.

Much of the rest of the publication is included in letter form, as shown in the video above, and we’ve decided to replicate it as HTML so that it makes it into IPFS and Gemini space.

European Patent Office | 80298 MUNICH | GERMANY

Reference: sc21102cl – 0.3.1/1.3.1
Date: 13/08/2021

To the Chairman and
the Heads of Delegation of the
Administrative Council of the
European Patent Organisation

OPEN LETTER

System for the settlement of disputes – Proposals for strengthening the Appeals Committee

Dear Mr Chairman,
Dear Heads of Delegation,

On 7 July 2021, the Administrative Tribunal of the International Labour Organization (ILOAT) delivered several important Judgments on the rules governing the exercise of the right to strike at the European Patent Office¹, introduced in 2013 with decision CA/D 5/13 and Circular No. 347, as well as on subsequent implementing decisions. ILOAT found that virtually every single one of the strike rules blatantly and obviously violated the fundamental right to strike, that the President exceeded his competence when drawing up Circular No. 347 and that the Circular is therefore unlawful in its entirety and is set aside². The ILOAT furthermore ruled that a salary deduction for absence due to strike participation of 1/20th of the monthly remuneration per day of absence instead of 1/30th as for all other unpaid lawful absences was punitive³ and that the President had abused his power when applying the strike rules and through his interpretation of Circular No. 347, of which he was the author⁴, justifying high moral damages.

Already in 2015 a national court in The Hague, the so-called Gerechtshof, found that the EPO violated fundamental European rights⁵.

____
¹ Judgments Nos. 4430 to 4435
² Judgment No. 4430, consideration 16 and decision
³ Judgment No. 4435
⁴ Judgments Nos. 4432 to 4434
⁵ The decision of the Gerechtshof was later on set aside by the Dutch Supreme Court, the Hoge Raad, only on the ground that the Organisation could invoke its immunity from national jurisdiction and that the Dutch courts therefore have no jurisdiction (see Judgement of the Gerechtshof Den Haag).

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Based on the same facts and arguments the internal Appeals Committee (ApC), by a majority, concluded in the underlying internal appeal procedures that the new strike rules as well as the salary deductions were lawful, that the President did not act ultra vires when laying down the strike rules in Circular No. 347 and that he did not abuse his powers in applying them⁶. The ILOAT found that the ApC had erred in all these points. In view of the long list of violations of the fundamental right to strike identified by the ILOAT⁷, this is remarkable and raises the question of why a majority in the ApC reached such an opposite opinion. The members of the ApC are laypersons. However, the Chair and Vice-Chairs are expected to possess the qualifications required for appointment to high judicial office or be lawyers with experience in the area of employment law acquired at national or international level, pursuant to Article 111(3) ServRegs. A reasonably objective and informed person might question whether they would at times give up their independence and impartiality, codified in Article 112 ServRegs.

The Staff Representation has already pointed out several times⁸ that the unilateral selection and appointment of the Chair and the Vice-Chairs by the President (Article 111(2)(a) ServRegs) does not ensure the required balance in the ApC and does not promote confidence in its opinions. The Staff Representation has therefore repeatedly requested to be involved in their selection and that the GCC be consulted on the appointments, to no avail⁹.

Internal appeals are procedure where a Committee is composed with an equal number of members appointed by the President and by the Staff Representation, however with the Chair taking alone all procedural decisions (Article 111a(1) ServRegs), leading the debate and making sometimes the difference in the opinions. Therefore, a mutual agreement on their appointment is key for arriving at balanced opinions accepted by staff and for preventing from overloading ILOAT with complaints which could have easily been settled internally. This was the reason why the GAC¹⁰ had to be consulted on the appointment of the Chair and Vice-Chairs since the founding of the European Patent Organisation¹¹ until 2013. However, with decisions CA/D 8/12 and 9/12 this consultation process was abolished and the Chair and Vice-Chairs have since then been unilaterally appointed by the President.

____
⁶ Only in the internal appeals procedure underlying Judgment No. 4432 the ApC concluded that a postponement of a strike ballot had been unlawful, but despite the blatant abuse of power no moral damage was awarded.
⁷ See, in particular, Judgment Nos. 4430, cons.16 and 4435, cons.15 to 17
⁸ See for example the letter to the Administrative Council of 31 January 2020
⁹ Although Staff Representation has been granted an observer status in the last selection procedure for a new chair, this cannot be a substitute for being able to appoint members to the selection board and for the required consultation of staff representation in the GCC.
¹⁰ Replaced by the GCC with decision CA/D 2/14
¹¹ Article 110(4) ServRegs, version 1977 (CA/D 9/77)

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The damage caused by the ApC’s massively wrong assessment of the strike rules and their application is considerable, both for the Organisation and for its staff.

The Organisation is now stigmatised in the public eye as an employer that has been violating fundamental rights of its staff for over eight years and has been depriving staff of an important tool for collective bargaining, as their right to strike has been severely obstructed at a time when many fundamental reforms were pushed through (inter alia “social democracy”, the new career system, the new salary adjustment procedure, the new rules for the education allowance, …).

Staff have also definitively lost confidence in the internal means of settling disputes and will, in most cases, eventually file a complaint with the ILOAT for protecting their rights. In addition, there is a high risk that many other decisions in appeal cases were also based on opinions where the ApC erred in law.

In view of the fundamental importance of legal certainty and legal peace and in order to restore staff’s confidence in the opinions of the ApC as soon as possible, and to prevent that disputes have to be settled outside the Organisation, we urge you that the Administrative Council takes steps to ensure that:

• Staff Representation is allowed to appoint members to the selection board for the Chair and Vice-Chairs of the ApC,
• the GCC is consulted prior to appointment of the Chair and Vice-Chairs,
• no Chair or vice-Chair may be appointed who does not find consensus in the GCC.

Yours sincerely,

Alain Dumont
Chairman of the Central Staff Committee

cc.: President of the EPO
Administrative Tribunal of the International Labour Organization

In short, there seems to be a tendency to enshrine unlawful rules as “the law”; moreover, “there is a high risk that many other decisions in appeal cases were also based on opinions where the ApC erred in law.”

This is by design; in the past we saw EPO dictators intervening when the ApC got it right; so, as usual, there’s not even any regard/respect to those appointed to assess legality within the EPO. █

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