02.24.22

Better Late Than Never: ILO Subjects the EPO’s Management to Some Belated Justice (Sans the Removal of Immunity, so Nobody is Being Held Accountable)

Posted in Courtroom, Europe, Law, Patents at 1:28 pm by Dr. Roy Schestowitz

Video download link | md5sum 2df8a649d4e4f273063b25e62fde9ca7
ILO Smackdown
Creative Commons Attribution-No Derivative Works 4.0

Summary: There’s some good news from Geneva; the EPO is being served many rulings that reaffirm its negative stigma in spite of António Campinos wasting millions of Euros on lawyers who fight his own staff [1, 2]

TODAY is a pretty “crazy” day for us, so we cannot cover EPO affairs as much as we’d like*.

We’ve decided it’s best to focus on Git and IRC, but meanwhile a lot is happening at the EPO. As noted by the staff union this morning, there’s belated coverage here about “industrial action at the EPO” and some decent early comments like: “Well, according to Management, Quality is Quantity.” Another person has said: “It is amazing that the tenant of the 10th floor has not yet attempted to restaure the preceding situation. The EPO is held hostage by a clique of people who behave like the worth employers of the 19th century. The tenant want to extend his contract! He was called in to restaure social peace but has not done one thing in this respect! A shame on the AC!”

The staff union has meanwhile translated the article into German [PDF] and French [PDF].

Similarly, the staff union produced German [PDF] and French [PDF] versions of the document discussed in the video above. As promised in the video (recorded about 2 hours earlier than this post), for the PDF-lazy we’re producing an HTML equivalent:

24 February 2022
su22012cp – 0.2.1/5.1/5.2

EPO cases of the 133rd Session of the ILOAT: The most salient judgments

In its 133rd Session, the Tribunal ruled on 51 cases among which 12 EPO cases. For the second time after the judgments on the unlawful strike regulations, the Tribunal ruled in Judgment 4482 that an EPO reform, “Social Democracy“, breached the fundamental right to freedom of association. Judgments 4488, 4489 and 4490 sanctioned the EPO’s institutional harassment of a former Principal Director and awarded above 250.000€ of damages in total. Judgment 4491 ordered the reinstatement of a single mother with babies (at the material time) unlawfully charged with fraud by the Investigative Unit which made an unfair and distorted analysis of the facts. This paper provides more details.

GENERAL DECISION AND RIGHT TO FREEDOM OF ASSOCIATION

Judgment No. 4482

The right to freedom of association implies the right for staff associations to regulate their own affairs, including the election of staff representatives. The Tribunal quashed Article 6 of CA/D 2/14 introducing Article 35(5) ServRegs and Circular No.355.

At the outset, the Tribunal recalled that, if in principle, a general decision cannot be challenged by a staff member unless and until an individual decision is taken adversely affecting the staff member, an implementing decision is not required in cases where the general decision has an immediate and adverse effects on individual rights.

The Tribunal developed a two-part test for the receivability of a direct challenge against a general decision: (1) the existence of an individual right, (2) whether the decision has an immediate and adverse effect on this individual right.

On the existence of an individual right, the Tribunal recalled that the right to associate freely, which encompasses the right to strike has long been recognized by it for officials of international organizations and is protected under Article 30 ServRegs as a term of appointment for EPO staff, thus acknowledging it as an individual right. Of importance, the Tribunal equally based this recognition on various international instruments, including the 1998 ILO Declaration on Fundamental Principles and Rights at Work, the 1966 ICCPR and the 1966 ICESC.

On the immediate and adverse effect on the right to associate freely, the Tribunal recalled that international organizations must refrain from interfering in the affairs of staff


associations or unions, which have the right to manage their own affairs, including the right to freely elect their representatives, irrespective of whether or not the associations/unions are established or operate under the organization’s staff regulations.

Consequently, the Tribunal ruled that the new regime was in violation of the right of staff to freely associate. The Tribunal quashed Article 6 of CA/D 2/14 which introduced Article 35(5) ServRegs and Circular No.355 without retroactive effect – an intrusion into the powers of the Administrative Council justified by the fundamental nature of the right protected. The Tribunal ordered that former Article 35(6) ServRegs applies mutatis mutandis to the future elections of staff representatives for the Staff Committees.

UNLAWFUL DECISION OF TRANSFER AND OPINION OF INTERNAL APPEAL BODY

Judgment No. 4488

Deference given to the decision of an internal appeal body on an unlawful transfer decision that did not respect the dignity of the staff member being assigned to a post that did not correspond to the same level of duties. The Tribunal set aside the impugned decision and awarded 35,000€ in moral damages.

In this case, the Complainant challenged the decision to transfer her to another post. Insofar as the favorable opinion from the Internal Appeals Committee (“IAC”) was not followed by the President in the final decision, the Complainant requested the Tribunal to set aside the said decision and to award her material damages for loss of income as well as moral damages.

The IAC applied the test under Judgment No. 2819, comparing the assigned duties in the newly created post with the general duties of an A6 post, and found that the level of duties assigned to the post where the Complainant was transferred did not correspond to the requirements for an A6 grade post. The IAC thus unanimously concluded that the transfer was unlawful and did not respect the Complainant’s dignity.

On the EPO’s decision not to follow the unanimous recommendation of the IAC, the Tribunal found the arguments contained in the impugned decision unconvincing as the EPO is bound by its own rules. In particular, the Tribunal recalled that the report by an internal body warrants considerable deference where (1) the report involves a balanced and thoughtful analysis of the issues raised in the internal appeal, and (2) its conclusions and recommendations are justified and rational.

For those reasons, the Tribunal ordered that the impugned decision be set aside, 35,000€ in moral damages and 1,000€ in costs.

ARBITRARINESS AND PERFORMANCE EVALUATION

Judgment No. 4489

Arbitrariness in the completion of the performance management report leading to moral injury. The Tribunal awarded moral damages to the Complainant.


In the present case, the Complainant challenged the amount of moral damages paid to her by the EPO for the decision not to finalize her two performance management reports for 2011 and part of 2012.

The Tribunal examined the approach of the Appeals Committee (“ApC”) in the present case. Notably, the Tribunal agreed with the ApC that the statutory requirements concerning management reports had not been met and that it existed a direct relationship between the Complainant’s performance management reports and the end of her contract. However, it diverged from the ApC’s reasoning, finding that the President’s refusal to sign the 2011 and 2012 reports was arbitrary.

On the relief sought, the Tribunal held that the Complainant was entitled to 10,000€ in moral damages for the failure to complete the performance reports and in addition to moral damages already paid by the EPO for the President’s arbitrary decision. Moreover, the Tribunal found that the 300€ recommended by the ApC for the length of the internal proceedings failed to compensate the moral injury suffered by the Complainant, recognizing that the delay of five years “would plainly have had a deleterious effect on the Complainant” and decided to award 3,000€ in moral damages.

However, regarding the claim for material damages, the Tribunal found it to be inadmissible as it had not been introduced during the internal proceedings.

ABOLITION OF POST AND CONSTRUCTIVE DISMISSAL

Judgment No. 4490

Assessment of material damages in the case of an unlawful decision not to renew a contract after the abolition of a post and constructive dismissal. The Tribunal assessed the loss of future income and awarded 200,000€ in material damages and 20,000€ in moral damages.

In this case, the Complainant challenged the amount of damages awarded for the unlawful decision not to renew her contract and to reinstate her in a lower-level post instead.

The Tribunal found that the material damages in cases of unlawful dismissal, where reinstatement is not ordered, are “the lost future income in the position with the organisation adjusted by an assessment of whether the staff member would have remained in that position and, if not, also adjusted by future income from other employment (see Judgment 4234, consideration 10). This assessment can also be approached compendiously by assessing the value of the lost opportunity to remain in employment (see, for example, Judgment 4305, consideration 14) (consideration 12).” The Tribunal further stated that the financial effect on the Complainant of the unlawful decision should be assessed by reference to the circumstances existing at the time the decision was made.

In the present case, the Tribunal considered that the Complainant’s unlawful dismissal occurred on the day of her resignation, which coincided with the date of expiry of her contract and the effective date of the abolition of her post (constructive dismissal). As such, the assessment of her damages for unlawful constructive dismissal is the same in substance as for an unlawful abolition of the post leading to an unlawful non-renewal.


Therefore, the Tribunal assessed the loss of future income. The Tribunal held that there was a real prospect that the Complainant’s contract would have been renewed for the period pending her retirement, had the decision been taken in good faith. The Tribunal also considered that the contract could have been lawfully not renewed and thus decided to award the Complainant 200,000€ in material damages.

With regard to moral damages, the Tribunal found that, contrary to the ApC’s finding, the Complainant’s claim did not depend on proof of harassment. Indeed, as evidenced by her letter of resignation and her recent medical certificates showcasing the deterioration of her health, the unlawful decision to abolish her post and to not renew her contract had a serious and negative effect on the Complainant’s health and well-being, resulting in her resignation. The Tribunal awarded the Complainant 20.000,00€ in moral damages.

STANDARD OF PROOF BEYOND REASONABLE DOUBT AND DISMISSAL FOR SERIOUS MISCONDUCT

Judgment No. 4491

The Tribunal considered that the misconduct has not been established beyond reasonable doubt. It considered that the Complainant never had the benefit of the doubt and awarded her €30,000 in moral damages.

In the present case, the Complainant challenged the decision to dismiss her with immediate effect for serious misconduct and requested her reinstatement with retroactive effect and moral damages.

At the outset, the Complainant being charged with fraud (and misrepresentation), the Tribunal defined it as the intention to obtain financial advantage by deception. The Tribunal therefore recalled the essential principles applicable to disciplinary proceedings:

- A staff member accused of wrongdoing is presumed to be innocent and is to be given the benefit of the doubt.
- The burden of proof of allegations of misconduct falls on the organization.
- The organization must prove the misconduct beyond reasonable doubt.
- The Tribunal will not ordinarily engage in the determination of whether the burden of proof has been met but rather will assess whether a finding of guilt beyond reasonable doubt could properly have been made.

Applying these principles to the present case, the Tribunal found that the Complainant was never given the benefit of the doubt during the investigative process and the disciplinary proceedings, in particular it considered that an unfair and distorted analysis of the facts had been made. The Tribunal was not satisfied that the misconduct was proven beyond reasonable doubt. The impugned decision was set aside, and the Tribunal considered that in view of the circumstances, the reinstatement of the Complainant was appropriate and awarded her 30,000€ in moral damages and 8,000€ in costs.

SUEPO Central

Interesting times ahead. Notice what the ‘Stasi’ of ‘Sun King’ did to an innocent mother. That’s why such a gestapo-like regime ought not exist in the first place. In just a few years Benoît Battistelli stained the reputation (probably irreversibly!) of an institution almost half a century old. And yet, there’s no plan to punish Battistelli himself…
_________
* As a matter of priority, we’ve decided to do 4 videos, focusing on: 1) Red Hat hiring from Microsoft 2) the biggest Diapora* pod shutting down; 3) gemini:// in Daily Links and IRC ‘enhancements’; 4) EPO matters, albeit in brief.

02.19.22

[Meme] António Campinos Does to Europe What His Country Did to Africa

Posted in Courtroom, Deception, Europe, Law, Patents at 9:55 am by Dr. Roy Schestowitz

The courts won't like this

Unitary? Unified? Guess it's time Togo to CJEU

Summary: “The Slave Coast” of France (birthplace of António Campinos, just like Benoît Battistelli in spite of the Portuguese- and Italian-sounding surnames) can possibly relate to what Team UPC is trying to do through the Francophonie/Germanic/Anglo-Saxon EPO, imposing European software patents on EU member states by bypassing their national courts (illegally!) and turning software developers into serfs, with sharecropping [1, 2, 3] like in Microsoft GitHub

There’s a Pie in the Face (on Its Way to EPOnia)

Posted in Courtroom, Europe, Law, Patents at 9:43 am by Dr. Roy Schestowitz

Video download link | md5sum 1a2669a9a1962fcc8476e8c4d3f66852
UPC Trouble Ahead
Creative Commons Attribution-No Derivative Works 4.0

Summary: Just like Benoît Battistelli before him, António Campinos keeps ‘defacing’ the EPO‘s Web site [1, 2] with calls to violate constitutions and break the law; patent zealots (they profit from lawsuits) who push for European software patents don’t seem to mind this as long as the EPO’s leadership suits the financial agenda of parasitic elements, even at the expense of science and technology (or so-called ‘innovation’, to use a buzzword) in Europe

THE latest statement from the FFII was reposted here last night, roughly a couple of days after it had first been published. It adds context and news (caselaw) to FFII’s "Unified Patent Court is a Fake Common Court and Violates CJEU’s Jurisprudence of the Last 10 Years" (citing a paper from Prof. Thomas Jaeger) and explains the basis upon which UPC as a system will be legally challenged well before it can even formally launch.

“Those of us who actually care about unity or community (as in “Community Patent”) or the EU (as in “EU Patent”) should strongly oppose the UPC and openly condemn those who incite politicians to break the law.”In the video above I express my thoughts on the matter and some time tomorrow I’ll do a much longer video that confronts the latest disinformation from Team UPC. These litigation fanatics (profiteers) are living in their own fantasy-land and they know that it helps sales (“legal” (dis)services) when they give false hopes to prospective clients, as they've been doing for nearly a decade already. What saddens me about this whole thing is that it tarnishes the image or the reputation of the European Union (EU). The ‘Eurosceptics’ (sometimes code word for nationalists) occasionally say that the EU serves the goals of multinational corporations and/or “America”; if the likes of Breton (European Commission) persist in inciting member states to flagrantly violate their own constitution (using shaming or blackmail tactics — more so while protecting criminal friends of his), who are we to dispute such allegations?

Those of us who actually care about unity or community (as in “Community Patent”) or the EU (as in “EU Patent”) should strongly oppose the UPC and openly condemn those who incite politicians to break the law.

UPC in 2007

2007: UPC coming in 2012!

with egg on one's face

02.12.22

The EPO’s Overseer/Overseen Collusion — Part XLIX: The Rise and Fall of Battistelli’s “Social Democracy”…

Posted in Courtroom, Europe, Law, Patents at 1:07 am by Dr. Roy Schestowitz

Series parts:

  1. The EPO’s Overseer/Overseen Collusion — Part I: Let the Sunshine In!
  2. The EPO’s Overseer/Overseen Collusion — Part II: A “Unanimous” Endorsement?
  3. The EPO’s Overseer/Overseen Collusion — Part III: Three Missing Votes
  4. The EPO’s Overseer/Overseen Collusion — Part IV: The Founding States
  5. The EPO’s Overseer/Overseen Collusion — Part V: Germany Says “Ja”
  6. The EPO’s Overseer/Overseen Collusion — Part VI: A Distinct Lack of Dutch Courage
  7. The EPO’s Overseer/Overseen Collusion — Part VII: Luxembourgish Laxity
  8. The EPO’s Overseer/Overseen Collusion — Part VIII: Perfidious Albion and Pusillanimous Hibernia
  9. The EPO’s Overseer/Overseen Collusion — Part IX: More Holes Than Swiss Cheese
  10. The EPO’s Overseer/Overseen Collusion — Part X: Introducing the Controversial Christian Bock
  11. The EPO’s Overseer/Overseen Collusion — Part XI: “General Bock” – Battistelli’s Swiss Apprentice?
  12. The EPO’s Overseer/Overseen Collusion — Part XII: The French Connection
  13. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli’s Iberian Facilitators – Spain
  14. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli’s Iberian Facilitators – Portugal
  15. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…
  16. The EPO’s Overseer/Overseen Collusion — Part XVI: The Demise of the Austrian Double-Dipper
  17. The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc
  18. The EPO’s Overseer/Overseen Collusion — Part XVIII: Helsinki’s Accord
  19. The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States
  20. The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group
  21. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”
  22. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League – North Macedonia and Albania
  23. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League – Bulgaria
  24. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League – Romania
  25. The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League – Fresh Blood or Same Old, Same Old?
  26. The EPO’s Overseer/Overseen Collusion — Part XXVI: A Trojan Horse on the Budget and Finance Committee
  27. The EPO’s Overseer/Overseen Collusion — Part XXVII: Cypriot Complicity
  28. The EPO’s Overseer/Overseen Collusion — Part XXVIII: Benoît and António’s Loyal “Habibi”
  29. The EPO’s Overseer/Overseen Collusion — Part IXXX: The EPOnian Micro-States – Monaco and Malta
  30. The EPO’s Overseer/Overseen Collusion — Part XXX: San Marino and the Perfidious Betrayal of Liberty
  31. The EPO’s Overseer/Overseen Collusion — Part XXXI: The Abstentionists
  32. The EPO’s Overseer/Overseen Collusion — Part XXXII: “Plucky Little Belgium”?
  33. The EPO’s Overseer/Overseen Collusion — Part XXXIII: Swedish Scepticism
  34. The EPO’s Overseer/Overseen Collusion — Part XXXIV: An “Extremely Dubious” Proposal
  35. The EPO’s Overseer/Overseen Collusion — Part XXXV: Slovakian Scruples
  36. The EPO’s Overseer/Overseen Collusion — Part XXXVI: Serbian Sour Grapes
  37. The EPO’s Overseer/Overseen Collusion — Part XXXVII: Stubbornly Independent Slovenia
  38. The EPO’s Overseer/Overseen Collusion — Part XXXVIII: Ensnared in the Tentacles of the SAZAS Octopus
  39. The EPO’s Overseer/Overseen Collusion — Part XXXIX: On the Slippery Slope to Capture
  40. The EPO’s Overseer/Overseen Collusion — Part XXXX: The Idiosyncratic Italians
  41. The EPO’s Overseer/Overseen Collusion — Part XXXXI: Public Service or Self-Service?
  42. The EPO’s Overseer/Overseen Collusion — Part XXXXII: A Parcel of Rogues?
  43. The EPO’s Overseer/Overseen Collusion — Part XXXXIII: A Legal No-Man’s Land
  44. The EPO’s Overseer/Overseen Collusion — Part XXXXIV: Immunity = Impunity?
  45. The EPO’s Overseer/Overseen Collusion — Part XXXXV: In the Shadow of “Waite and Kennedy”
  46. The EPO’s Overseer/Overseen Collusion — Part XXXXVI: An Erosion of Fundamental Rights Protection?
  47. The EPO’s Overseer/Overseen Collusion — Part XLVII: Institutionalised Injustice at the EPO?
  48. The EPO’s Overseer/Overseen Collusion — Part XLVIII: The Unkindest Cut of All
  49. YOU ARE HERE ☞ The Rise and Fall of Battistelli’s “Social Democracy”…

A sick rose
The “sick rose” of EPOnian “Social Democracy” finally wilted beyond recovery following delivery of ILOAT Judgment No. 4482 on 27 January 2022.

Summary: Son-of-a-socialist António Campinos, who turned his back on social causes and instead became a vassal of that multinational litigation/monopolies cabal, has a chaotic situation in his hands, with impending industrial action and a crisis of legitimacy for the EPO’s overseeing body

In the last part we saw how a former judge of the European Court of Human Rights, Sir Paul Mahoney, played a key role in suppressing the fundamental rights of EPO staff when he endorsed a majority opinion of the appeals committee dismissing a challenge to Battistelli’s "Strike Regulations" in May 2019.

But Mahoney’s complicity in the rubber-stamping of the controversial “Strike Regulations” was not his only perfidious betrayal of EPO staff.

In March 2020, the appeals committee which he chaired also gave a clean bill of legal health to another liberticidal “reform” promoted by Team Battistelli, namely the bizarrely mislabelled "Social Democracy" project.

This contentious “reform” of EPO staff representation was proposed to the Administrative Council by Battistelli in a document bearing the surreal Orwellian title of “Social democracy at the European Patent Office” (CA/4/14 of 10 March 2014 [PDF]).

According to Battistelli the purpose of this “reform” was to “fill a legal vacuum, adapt and modernise [the EPO] social framework and provide improvements for a more efficient management of the Office.

Battistelli’s proposal was adopted by the Administrative Council as decision CA/D 2/14 on 28 March 2014. [PDF]

As the official record shows, CA/D 2/14 [PDF] was yet another dubious proposal from Team Battistelli which was "unanimously approved" by the Administrative Council with only a handful of abstentions.

The record on Battistelli's 'Social Democracy' at EPO
The official record shows that Battistelli’s “Social Democracy” proposal was “unanimously approved” by the Council delegates in March 2014 with only a handful of abstentions.

The amendments to the EPO’s Service Regulations which were approved by CA/D 2/4 had a far-reaching impact on the prerogatives and functions of staff representatives and the electoral rights of every staff member.

Under the old provisions, EPO staff had the right to participate directly in the determination of the rules governing the election of local and central Staff Committee members. The election rules were adopted by a general assembly of permanent employees.

CA/D 2/14 unilaterally abrogated these provisions.

Under the new régime of “Social Democracy”, the President of the Office was granted the sole power to determine the rules governing the election of the Staff Committee. EPO employees were henceforth deprived of any say in the matter.

It took Mahoney’s appeals committee almost six years to issue an opinion on the legal challenges which EPO Staff had filed against Battistelli’s “Social Democracy”.

When the appeals committee finally issued its opinion on 5 March 2020, the majority of its members concluded that “no illegality was established”.

“It took Mahoney’s appeals committee almost six years to issue an opinion on the legal challenges which EPO Staff had filed against Battistelli’s “Social Democracy”.”However, the ILOAT took a significantly different view of the matter almost two years later, on 27 January 2022, when the Tribunal announced the judgments of its 133rd Session (held from 18 October to 23 November 2021).

Amongst these judgments was No. 4482 (local copy [PDF]) which ruled that Battistelli’s “Social Democracy” violated the fundamental right of EPO staff to freedom of association:

The regime in place before decision CA/D 2/14 for the conduct of elections respected the right of staff to freely associate and the new regime did not. The reason given in its pleas by the EPO for the material changes within that organisation in 2014 presently being discussed, does not withstand scrutiny.

In plain English this means that – unlike Mahoney and his appeals committee – the Tribunal had seen through the BS and legal sophistry peddled by Team Battistelli and it wasn’t amused.

ILOAT Judgment No. 4482 is noteworthy because it is the second time that the Tribunal has ruled that an EPO “reform” introduced by Team Battistelli breached the fundamental right of freedom of association.

Benoît Battistelli, Elodie Bergot, Željko Topić, and Raimund Lutz
ILOAT Judgment 4482 is noteworthy because it was the second time that the Tribunal had ruled that a “reform” introduced by Team Battistelli had breached the fundamental right of freedom of association.
Clockwise from top left: Office President Benoît Battistelli, Principal Director Elodie Bergot, Vice-Presidents Željko Topić and Raimund Lutz.

The judgment is also of significance because this time the Tribunal saw fit to strike down a decision of the Administrative Council.

“The judgment is also of significance because this time the Tribunal saw fit to strike down a decision of the Administrative Council.”In the earlier judgments of the 132nd session concerning the Strike Regulations, the Tribunal had contented itself with quashing “Circular No. 347″ which had been issued by Battistelli, and “which had the most immediate, adverse and far reaching effect on the complainants’ right to strike”.

On that occasion, the Tribunal stopped short of revoking the Administrative Council decision that had supposedly empowered Battistelli to issue the disputed Circular.

According to the three-judge panel dealing with the case in Judgment 4430: (local copy [PDF])

The position is not so clear in relation to [Administrative Council decision] CA/D 5/13 [...] While the Tribunal can examine the lawfulness of provisions of a general decision …, whether it has jurisdiction to set aside a provision of the Service Regulations is a significant legal question on which the Tribunal’s case law is unclear.

It should be resolved in an appropriate case by a plenary panel of the Tribunal constituted by seven judges, which is not presently possible.

During the subsequent 133rd Session, the Tribunal decided to grasp the nettle boldly and to resolve the “significant legal question” which it had identified in the earlier Judgment No. 4430.

For this purpose, the Tribunal assembled a plenary panel of seven judges who proceeded to annul the objectionable elements of Administrative Council decision CA/D 2/14.

The composition of the seven-member judicial panel which rendered this historic judgment was as follows:

• Michael F. Moore (Australia),
• Patrick Frydman (France),
• Hugh A. Rawlins (Saint Kitts & Nevis),
• Jacques Jamotte (Belgium),
• Clément Gascon (Canada),
• Rosanna De Nicoltis (Italy), and
• Hongyu Shen (China).

Michael F. Moore (Australia), Patrick Frydman (France), Hugh A. Rawlins (Saint Kitts & Nevis), Jacques Jamotte (Belgium), Clément Gascon (Canada), Rosanna De Nicoltis (Italy), and Hongyu Shen (China)
How many Judges does it take to overturn a decision of the EPO’s Administrative Council?
At the ILOAT, it seems that a plenary panel of seven judges is required…
Top row: Jacques Jamotte (no photo), Michael F. Moore (no photo) and Patrick Frydman.
Bottom row: Hugh A. Rawlins, Clément Gascon, Rosanna De Nicoltis and Hongyu Shen.

The judgment is worth reading in detail because it exposes the gravity of the unlawful interference in the fundamental rights of EPO staff caused by Battistelli’s “Social Democracy”.

There is a consistent line of case law of the Tribunal which makes clear, in a variety of ways, that organisations should not interfere in the affairs of a staff association or union … and the association or union must have the concomitant right to conduct its own affairs and regulate its own activities [...] It also includes the right to freely elect their own representatives. [...].

There are obvious reasons for this approach.

The role of staff associations or unions is to represent the interests of members primarily in dealing with their employing organisation on issues concerning the staff. Staff associations or unions should be able to do so unhindered or uninfluenced by the Administration of the employing organisation. Were it otherwise, the role would be compromised.

There are other less obvious reasons.

A staff association or union is likely to be more robust and thus more effective if the members perceive it to be independent and have confidence in it allied to a sense of ownership of it.

Any involvement by the employing organisation in its activities, including elections, would most likely affect that perception and diminish or dampen that confidence and sense of ownership.

While this latter reason should not be overstated, it nonetheless should be recognised [...]

It is also apparent from the judgment that the Tribunal took a dim view of the Administrative Council’s complicity in Battistelli’s outrageous assault on the fundamental rights of EPO staff.

“This case presents a situation where a remedy, which may intrude into the exercise of power by the Administrative Council, is appropriate to protect a fundamental right of a member of staff and, indeed, all members of staff which was a term of their appointment as officials of the EPO. The adoption of those parts of the new rules concerning elections by decision CA/D 2/14 entailed non-observance of that term of appointment.

There can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy.

It is recognised as a right by the Tribunal … It is a right recognised in the 1998 ILO Declaration on Fundamental Principles and Rights at Work, Article 2(a), as an obligation for all ILO Member States arising from the very fact of their membership in the ILO.

Freedom of association is a right recognised by the 1966 International Covenant on Civil and Political Rights, Article 22, and also by the 1966 International Covenant on Economic, Social and Cultural Rights, Article 8.

The Administrative Council of the EPO has itself recognised the importance of human rights when formulating the rights and obligations of staff. In a decision made at its 55th meeting in December 1994, which is reproduced before the text of the Service Regulations [...]

The Tribunal additionally noted that the Administrative Council’s endorsement of Battistelli’s “Social Democracy” was in “obvious and irreconcilable” contradiction to Article 30 of the EPO Service Regulations which expressly guarantees the right to “freedom of association”.

It seems quite extraordinary that Sir Paul Mahoney and his appeals committee managed to overlook all of this and failed to rebuke the Administrative Council for its complicity in breaches of fundamental rights at the EPO.

“At the 168th meeting of the Administrative Council held on October 2021, Sonya Anne Brander was appointed as the new chair of the EPO’s internal appeals committee.”Unfortunately, there isn’t much hope at this stage of finding out what Mahoney thinks about ILOAT Judgments Nos. 4430 and 4482 because he sailed off into the sunset towards the end of last year.

At the 168th meeting (warning: epo.org link) of the Administrative Council held on October 2021, Sonya Anne Brander was appointed as the new chair of the EPO’s internal appeals committee.

Brander has dual UK and Canadian citizenship and is a graduate of Dalhousie University in Halifax, Nova Scotia. Prior to her current EPO appointment, she worked for the World Health Organization (WHO) as Chair of the Global Board of Appeal, which is the WHO’s internal appeal body.

Sonya Brander
The new chair of the EPO’s internal appeals committee, Sonya Brander.

It remains to be seen whether or not Brander can make a more meaningful contribution to the restoration of justice and the rule of law at the EPO than her predecessor, Mahoney, who has been “weighed in the balance and found wanting”.

“It remains to be seen whether or not Brander can make a more meaningful contribution to the restoration of justice and the rule of law at the EPO than her predecessor, Mahoney, who has been “weighed in the balance and found wanting”.”The judgments of the 132nd and 133rd Sessions of the ILOAT confirm that Mahoney just wasn’t up to the job when it came to “speaking truth to power”.

He evidently saw it as his duty to tell the Administrative Council what it wanted to hear as opposed to what it needed to hear.

“In the final part of the present series, we shall see how Battistelli’s inglorious departure from the EPO in 2018 did not resolve the organisation’s governance crisis which continues to fester in the background as the 50th anniversary of the signing of the European Patent Convention approaches.”His term of office as head of the EPO’s internal appeals committee can only be judged as a miserable failure.

Above all else, it was irreparably blighted by his failure to take a principled stand against the “backsliding into totalitarianism” which took place at the EPO under Battistelli and his reluctance to confront the Administrative Council by taking it to task for its complicity in serious breaches of the fundamental rights of EPO Staff.

In the final part of the present series, we shall see how Battistelli’s inglorious departure from the EPO in 2018 did not resolve the organisation’s governance crisis which continues to fester in the background as the 50th anniversary of the signing of the European Patent Convention approaches.

02.10.22

EPO Unjustified

Posted in Courtroom, Europe, Law, Patents at 6:02 pm by Dr. Roy Schestowitz

Video download link | md5sum 182df25f7e3f079a3185e8bf7531c6ad
Looking Below the Belly of Naked EPO Injustice
Creative Commons Attribution-No Derivative Works 4.0

Summary: Unjustified injustice at the EPO puts in grave doubt the EPO’s capability of deciding on patentability and its credibility in patent cases at large; it seems clear, based on the EPO’s internal tribunals and appeal boards, that the Office controls everything (Benoît Battistelli and António Campinos are stacking the deck to get their “desired” outcomes) and flagrantly breaks all the laws, even constitutions and conventions (EPC, Vienna Convention and so on)

THE internal documents from the EPO, combined with ‘battle stories’ (inside the courts and behind the scenes), will tell readers the true story of Europe’s second-largest institution. Ironically enough, Battistelli ended up in a law school (albeit also UPC propaganda mill), though that doesn’t mean he still enjoys diplomatic immunity.

Tilt the scale of justice and Battistelli wins!Earlier today we published the story about Karoline Kerber-Zubrzycka, who is back at the EPO despite an appalling record (maybe a reward for this appalling record — a record much desired by Battistelli) and tomorrow we’ll publish a long part about a former judge of the European Court of Human Rights, Sir Paul Mahoney, who after half a decade decided that staff of the EPO still had freedom of expression.

“The video above gives more examples of Kafkaesque scenarios, e.g. tribunals illegal composed deciding on legality of things.”What sort of justice is this? If justice delayed is justice denied (as the saying goes), then the EPO lacks any sense of justice. In fact, the EPO’s own judges were illegally (in violation of the EPC) lodged in Haar for about half a decade. How Kafkaesque is that? The video above gives more examples of Kafkaesque scenarios, e.g. tribunals illegal composed deciding on legality of things.

02.09.22

The EPO’s Overseer/Overseen Collusion — Part XXXXVI: An Erosion of Fundamental Rights Protection?

Posted in Courtroom, Europe, Law, Patents at 8:40 am by Dr. Roy Schestowitz

Series parts:

  1. The EPO’s Overseer/Overseen Collusion — Part I: Let the Sunshine In!
  2. The EPO’s Overseer/Overseen Collusion — Part II: A “Unanimous” Endorsement?
  3. The EPO’s Overseer/Overseen Collusion — Part III: Three Missing Votes
  4. The EPO’s Overseer/Overseen Collusion — Part IV: The Founding States
  5. The EPO’s Overseer/Overseen Collusion — Part V: Germany Says “Ja”
  6. The EPO’s Overseer/Overseen Collusion — Part VI: A Distinct Lack of Dutch Courage
  7. The EPO’s Overseer/Overseen Collusion — Part VII: Luxembourgish Laxity
  8. The EPO’s Overseer/Overseen Collusion — Part VIII: Perfidious Albion and Pusillanimous Hibernia
  9. The EPO’s Overseer/Overseen Collusion — Part IX: More Holes Than Swiss Cheese
  10. The EPO’s Overseer/Overseen Collusion — Part X: Introducing the Controversial Christian Bock
  11. The EPO’s Overseer/Overseen Collusion — Part XI: “General Bock” – Battistelli’s Swiss Apprentice?
  12. The EPO’s Overseer/Overseen Collusion — Part XII: The French Connection
  13. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli’s Iberian Facilitators – Spain
  14. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli’s Iberian Facilitators – Portugal
  15. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…
  16. The EPO’s Overseer/Overseen Collusion — Part XVI: The Demise of the Austrian Double-Dipper
  17. The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc
  18. The EPO’s Overseer/Overseen Collusion — Part XVIII: Helsinki’s Accord
  19. The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States
  20. The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group
  21. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”
  22. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League – North Macedonia and Albania
  23. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League – Bulgaria
  24. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League – Romania
  25. The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League – Fresh Blood or Same Old, Same Old?
  26. The EPO’s Overseer/Overseen Collusion — Part XXVI: A Trojan Horse on the Budget and Finance Committee
  27. The EPO’s Overseer/Overseen Collusion — Part XXVII: Cypriot Complicity
  28. The EPO’s Overseer/Overseen Collusion — Part XXVIII: Benoît and António’s Loyal “Habibi”
  29. The EPO’s Overseer/Overseen Collusion — Part IXXX: The EPOnian Micro-States – Monaco and Malta
  30. The EPO’s Overseer/Overseen Collusion — Part XXX: San Marino and the Perfidious Betrayal of Liberty
  31. The EPO’s Overseer/Overseen Collusion — Part XXXI: The Abstentionists
  32. The EPO’s Overseer/Overseen Collusion — Part XXXII: “Plucky Little Belgium”?
  33. The EPO’s Overseer/Overseen Collusion — Part XXXIII: Swedish Scepticism
  34. The EPO’s Overseer/Overseen Collusion — Part XXXIV: An “Extremely Dubious” Proposal
  35. The EPO’s Overseer/Overseen Collusion — Part XXXV: Slovakian Scruples
  36. The EPO’s Overseer/Overseen Collusion — Part XXXVI: Serbian Sour Grapes
  37. The EPO’s Overseer/Overseen Collusion — Part XXXVII: Stubbornly Independent Slovenia
  38. The EPO’s Overseer/Overseen Collusion — Part XXXVIII: Ensnared in the Tentacles of the SAZAS Octopus
  39. The EPO’s Overseer/Overseen Collusion — Part XXXIX: On the Slippery Slope to Capture
  40. The EPO’s Overseer/Overseen Collusion — Part XXXX: The Idiosyncratic Italians
  41. The EPO’s Overseer/Overseen Collusion — Part XXXXI: Public Service or Self-Service?
  42. The EPO’s Overseer/Overseen Collusion — Part XXXXII: A Parcel of Rogues?
  43. The EPO’s Overseer/Overseen Collusion — Part XXXXIII: A Legal No-Man’s Land
  44. The EPO’s Overseer/Overseen Collusion — Part XXXXIV: Immunity = Impunity?
  45. The EPO’s Overseer/Overseen Collusion — Part XXXXV: In the Shadow of “Waite and Kennedy”
  46. YOU ARE HERE ☞ An Erosion of Fundamental Rights Protection?

Kicking Fundamental Rights
Recent judgments of the European Court of Human Rights appear to have eroded the obligation of ECHR states to protect fundamental rights in cases where the alleged violations involve an international organisation.

Summary: What the European Court of Human Rights means to EPO workers in light of more recent developments, especially 5 years ago (Supreme Court of the Netherlands)

In the last part we saw how the European Court of Human Rights (ECtHR) has ruled that states which are signatories of the European Convention on Human Rights (ECHR) have a responsibility to ensure that their membership of international organisations does not lead to a breach of their ECHR obligations.

“…it has become evident that the overriding priority of the Court is to protect the autonomy of international organisations at the expense of the fundamental rights of their staff (and other individuals adversely affected by the acts of such organisations).”In other words, ECHR signatory states must ensure that adequate provision is made for an “equivalent protection” of fundamental rights inside any international organisation which they join.

This has implications for the internal justice systems of international organisations on which staff are obliged to rely for legal redress, because of their lack of access to national courts.

According to the “Waite and Kennedy v. Germany” judgment, such internal justice systems must provide staff of an international organisation with “reasonable alternative means to protect effectively their rights under the [European] Convention [on Human Rights]“.

However, following the delivery of ECtHR judgments in the cases of Klausecker v. Germany (application no. 415/07) and Perez v. Germany [PDF] (no. 15521/08) in January 2015, it has become evident that the overriding priority of the Court is to protect the autonomy of international organisations at the expense of the fundamental rights of their staff (and other individuals adversely affected by the acts of such organisations).

“There was now a distinct possibility that international organisations and their member states could get away with applying a different and less rigorous standard of human rights protection to the acts and omissions of an international organisation.”The Klausecker and Perez judgments prompted the legal scholar Anne-Marie Thévenot-Werner to express concern about an erosion of the obligation of states to protect the fundamental rights enshrined in the ECHR.

In an article published in the legal journal Revue de droit allemande in 2015 Thévenot-Werner acknowledged that the ECtHR had formally reaffirmed its case law requiring the provision of “reasonable alternative means” for the protection of fundamental rights inside international organisations.

However, at the same time the Court signalled that it would not hold a state to account for a breach of the ECHR involving an international organisation unless the protection available via the organisation’s internal justice system was shown to be “manifestly deficient”.

Thévenot-Werner warned that the approach taken by the Court in these cases risked creating a loophole with respect to the protection of fundamental rights enshrined in the ECHR.

“It deserves to be emphasised at this point that these are matters which are not merely of academic and theoretical interest.”There was now a distinct possibility that international organisations and their member states could get away with applying a different and less rigorous standard of human rights protection to the acts and omissions of an international organisation. In such situations, states would only be called to account if it could be established to the satisfaction of the Court that the level of protection available was “manifestly deficient”.

The risk of such an erosion of legal protection exists even in the case of organisations where all participating states are signatories to the ECHR (which is the case for the EPO).

It deserves to be emphasised at this point that these are matters which are not merely of academic and theoretical interest.

The saga of Benoît Battistelli‘s “Strike Regulations” at the EPO provides a striking illustration of their practical significance for the staff of international organisations.

“The Gerechtshof judgment showed that at least some judges in the Netherlands were serious about setting limits to the “immunity” enjoyed by an international organisation in order to prevent abuses involving clear-cut violations of fundamental rights.”As noted in an earlier part of this series, Battistelli’s controversial “Strike Regulations” were one of a long litany of grievances which the EPO staff union SUEPO attempted to litigate before the national justice system in the Netherlands.

During the litigation procedure, the Gerechtshof den Haag (Appeal Court of The Hague) decided that breaches of fundamental rights by EPO management were so severe that they justified lifting the organisation’s immunity from jurisdiction.

This lead to a judgment, delivered on 17 February 2015, in which the Gerechtshof ordered the EPO [PDF] to rescind several amendments to the organisation’s staff regulations, including the undue restrictions on industrial actions imposed by the impugned “Strike Regulations”.

In addition to this, the EPO was ordered by the court to uphold the rule-of-law and social dialogue standards in line with the European Convention on Human Rights and ILO Conventions No. 87, on the right to organise in trade unions, and No. 98 on the right to collective bargaining. [PDF]

The Gerechtshof judgment showed that at least some judges in the Netherlands were serious about setting limits to the “immunity” enjoyed by an international organisation in order to prevent abuses involving clear-cut violations of fundamental rights.

The European Public Service Union (EPSU) reported on the judgment under the headline “European Patent Office does not live in a Dutch no man’s land”.

“The problem with the Gerechtshof judgment was that it set a worrying precedent which had political ramifications going far beyond the EPO.”Unfortunately, both SUEPO’s legal victory and EPSU’s optimism turned out to be short-lived.

Less than two years later, the Gerechtshof judgment was set aside, thereby confirming what many had long suspected: the European Patent Office does indeed live in a Dutch no man’s land!

Gerechtshof den Haag
An independent judicial review of violations of fundamental rights by the EPO carried out by the Gerechtshof den Haag led to a short-lived lifting of the organisation’s immunity in February 2015. This was overruled in January 2017 when the Supreme Court proclaimed that Dutch courts had “no jurisdiction in the EPO dispute”.

The problem with the Gerechtshof judgment was that it set a worrying precedent which had political ramifications going far beyond the EPO.

“The Hoge Raad attempted to justify its findings on the basis that the fundamental rights of EPO staff “were sufficiently protected by the internal dispute settlement procedure provided for by EPOrg”.”It was a veritable thorn in the flesh not only for Battistelli and his clique at the EPO, but also for the Dutch government which reaps significant economic benefits from the country’s status as a host to a large number of international organisations.

This led to the Dutch government joining forces with Team Battistelli in support of an application for “cassation” of the judgment.

Finally, on January 2017, the Hoge Raad (Supreme Court of the Netherlands) issued a ruling to the effect that Dutch courts had no jurisdiction in the EPO dispute:

“According to the European Court of Human Rights (ECtHR), granting jurisdictional immunity to an international organisation constitutes a limitation of the right of access to a court as referred to in article 6 of the Convention for the Protection of Human Rights and Fundamental Freedom Rights (ECHR). This limitation is acceptable provided that litigants have a reasonable alternative means of protecting their rights effectively.

The Supreme Court found that such alternative means exist. The rights of VEOB [the Netherlands branch of SUEPO] and SUEPO are sufficiently protected by the internal dispute settlement procedure provided for by EPOrg, under which individual employees and staff representatives can ultimately take their complaint to the Administrative Tribunal of the International Labour Organization in Geneva. According to the Supreme Court, this means that the essence of their right of access to a court has not been impaired.”

The Hoge Raad attempted to justify its findings on the basis that the fundamental rights of EPO staff “were sufficiently protected by the internal dispute settlement procedure provided for by EPOrg”.

But is this really the case?

“In the upcoming parts, we will take a closer look at the EPO’s internal justice system and the role which it played in “Strike Regulations” affair.”Not everybody would agree. Indeed, many would argue that the facts tell a very different story and that the judgment delivered by the Hoge Raad in January 2017 was driven by political expediency and a misplaced desire to tell the Dutch government and the EPO what they wanted to hear rather than what they needed to hear.

In the upcoming parts, we will take a closer look at the EPO’s internal justice system and the role which it played in “Strike Regulations” affair.

In particular, we will see how a former judge of the European Court of Human Rights played a bizarre and incongruous role in prolonging the suppression of the fundamental right to “freedom of association” at the EPO.

02.08.22

The EPO’s Overseer/Overseen Collusion — Part XXXXV: In the Shadow of “Waite and Kennedy”

Posted in Courtroom, Deception, Europe, Law, Patents at 1:21 pm by Dr. Roy Schestowitz

Series parts:

  1. The EPO’s Overseer/Overseen Collusion — Part I: Let the Sunshine In!
  2. The EPO’s Overseer/Overseen Collusion — Part II: A “Unanimous” Endorsement?
  3. The EPO’s Overseer/Overseen Collusion — Part III: Three Missing Votes
  4. The EPO’s Overseer/Overseen Collusion — Part IV: The Founding States
  5. The EPO’s Overseer/Overseen Collusion — Part V: Germany Says “Ja”
  6. The EPO’s Overseer/Overseen Collusion — Part VI: A Distinct Lack of Dutch Courage
  7. The EPO’s Overseer/Overseen Collusion — Part VII: Luxembourgish Laxity
  8. The EPO’s Overseer/Overseen Collusion — Part VIII: Perfidious Albion and Pusillanimous Hibernia
  9. The EPO’s Overseer/Overseen Collusion — Part IX: More Holes Than Swiss Cheese
  10. The EPO’s Overseer/Overseen Collusion — Part X: Introducing the Controversial Christian Bock
  11. The EPO’s Overseer/Overseen Collusion — Part XI: “General Bock” – Battistelli’s Swiss Apprentice?
  12. The EPO’s Overseer/Overseen Collusion — Part XII: The French Connection
  13. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli’s Iberian Facilitators – Spain
  14. The EPO’s Overseer/Overseen Collusion — Part XIV: Battistelli’s Iberian Facilitators – Portugal
  15. The EPO’s Overseer/Overseen Collusion — Part XV: Et Tu Felix Austria…
  16. The EPO’s Overseer/Overseen Collusion — Part XVI: The Demise of the Austrian Double-Dipper
  17. The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc
  18. The EPO’s Overseer/Overseen Collusion — Part XVIII: Helsinki’s Accord
  19. The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States
  20. The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group
  21. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”
  22. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League – North Macedonia and Albania
  23. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League – Bulgaria
  24. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League – Romania
  25. The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League – Fresh Blood or Same Old, Same Old?
  26. The EPO’s Overseer/Overseen Collusion — Part XXVI: A Trojan Horse on the Budget and Finance Committee
  27. The EPO’s Overseer/Overseen Collusion — Part XXVII: Cypriot Complicity
  28. The EPO’s Overseer/Overseen Collusion — Part XXVIII: Benoît and António’s Loyal “Habibi”
  29. The EPO’s Overseer/Overseen Collusion — Part IXXX: The EPOnian Micro-States – Monaco and Malta
  30. The EPO’s Overseer/Overseen Collusion — Part XXX: San Marino and the Perfidious Betrayal of Liberty
  31. The EPO’s Overseer/Overseen Collusion — Part XXXI: The Abstentionists
  32. The EPO’s Overseer/Overseen Collusion — Part XXXII: “Plucky Little Belgium”?
  33. The EPO’s Overseer/Overseen Collusion — Part XXXIII: Swedish Scepticism
  34. The EPO’s Overseer/Overseen Collusion — Part XXXIV: An “Extremely Dubious” Proposal
  35. The EPO’s Overseer/Overseen Collusion — Part XXXV: Slovakian Scruples
  36. The EPO’s Overseer/Overseen Collusion — Part XXXVI: Serbian Sour Grapes
  37. The EPO’s Overseer/Overseen Collusion — Part XXXVII: Stubbornly Independent Slovenia
  38. The EPO’s Overseer/Overseen Collusion — Part XXXVIII: Ensnared in the Tentacles of the SAZAS Octopus
  39. The EPO’s Overseer/Overseen Collusion — Part XXXIX: On the Slippery Slope to Capture
  40. The EPO’s Overseer/Overseen Collusion — Part XXXX: The Idiosyncratic Italians
  41. The EPO’s Overseer/Overseen Collusion — Part XXXXI: Public Service or Self-Service?
  42. The EPO’s Overseer/Overseen Collusion — Part XXXXII: A Parcel of Rogues?
  43. The EPO’s Overseer/Overseen Collusion — Part XXXXIII: A Legal No-Man’s Land
  44. The EPO’s Overseer/Overseen Collusion — Part XXXXIV: Immunity = Impunity?
  45. YOU ARE HERE ☞ In the Shadow of “Waite and Kennedy”

Court House
Everybody is entitled to their day in court.
Well, maybe not, if you happen to work for an international organisation.

Summary: The EPO‘s immunity is troublesome for a plethora of reasons; this sort of problem has long been recognised in a broader context

As we mentioned in the last part, the immunities accorded to international organisations mean that their staff are precluded from pursuing their grievances before national courts of law.

Instead, staff are obliged to have recourse to internal dispute resolution mechanisms involving opaque procedures, whose compliance with the most basic requirements of due process is often open to question.

“The risk of a “denial of justice” arises because – unlike employees in the national domain – staff of an international organisation have no access to a domestic court of law in the case of a dispute with their employer.”The internal means of redress provided by an international organisation is usually supplemented by a final possibility of judicial review before an international tribunal such as the ILOAT in Geneva.

These parallel legal systems have developed because of a general recognition that the immunity of an international organisation could be problematic from the rule of law perspective.

The risk of a “denial of justice” arises because – unlike employees in the national domain – staff of an international organisation have no access to a domestic court of law in the case of a dispute with their employer.

As a workaround, an approach to dispute resolution has been developed which relies on what are called “internal justice systems”.

“As a workaround, an approach to dispute resolution has been developed which relies on what are called “internal justice systems”.”The legal scholar Anne-Marie Thévenot-Werner – a professor of law at the Sorbonne University in France – has written extensively on the topic, for example in an article entitled “The Right of Staff Members to a Tribunal as a Limit to the Jurisdictional Immunity of International Organisations in Europe” which was published in 2014.

In this article Thévenot-Werner explains how national courts in Europe have come to recognise that the immunity from national jurisdiction accorded to an international organisation cannot be considered absolute because this could lead to a “denial of justice”.

Such immunity is contingent on the guarantee of an effective legal remedy being available to staff in the form of an internal dispute settlement mechanism which provides “equivalent protection” to that provided by a national legal system.

This principle is echoed in the case law of the European Court of Human Rights (ECtHR) which monitors compliance with the European Convention on Human Rights (ECHR).

“In this way – or so the theory goes – even when states transfer certain competences to international organisations, human rights supervisory bodies such as the ECtHR can continue to hold states to account for the use of those powers.”The ECtHR has found that the ECHR does not exclude states from transferring competences to international organisations. However, states which are signatories of the ECHR have a responsibility to ensure that their human rights obligations will receive an “equivalent protection” within the context of those international organisations in which they participate.

In this way – or so the theory goes – even when states transfer certain competences to international organisations, human rights supervisory bodies such as the ECtHR can continue to hold states to account for the use of those powers.

The Court’s position is based on the consideration that if the contracting states of the ECHR, were permitted to use their membership of an international organisation as an “excuse” for evading their responsibilities under the Convention this would lead to a “loophole” in human rights protection which would be incompatible with the object and purpose of the ECHR.

According to the Court’s jurisprudence, the alternative means of legal process on which staff of international organisations are obliged to rely must provide “reasonable alternative means to protect effectively their rights under the [European] Convention [on Human Rights]“.

ECHR
In its landmark judgment delivered in 1999 the ECtHR confirmed that international organisations are obliged to provide their staff with “reasonable alternative means” to protect their fundamental rights under the ECHR.

This was spelt out by the Court in the landmark judgments delivered in 1999 in the cases of “Waite and Kennedy v. Germany” and “Beer and Regan v. Germany”.

Those judgments and their implications for international organisations are discussed in some detail in the article In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Organisations, the individual’s Right of Access to the Courts and Administrative Tribunals as Alternative Means of Dispute Settlement” published in 2004. This article was co-authored by August Reinisch, Professor of International and European Law at the University of Vienna, and Ulf Andreas Weber, a practicing attorney in Berlin specializing in employment law focusing on staff disputes in international organizations.

All of this sounds fine in theory.

“…some subsequent judgments of the ECtHR delivered in 2015 indicate that the Court is extremely reluctant to pursue alleged breaches of fundamental rights involving international organisations.”However, in practice, the internal dispute resolution mechanisms of international organisations are rarely fit for purpose and this often leads to a de facto denial of justice.

Moreover, as we shall see in the next part, some subsequent judgments of the ECtHR delivered in 2015 indicate that the Court is extremely reluctant to pursue alleged breaches of fundamental rights involving international organisations.

02.07.22

EPO Pays Out Millions of Euros in Compensation — to Thousands of Workers Who Deserve a Lot More for Moral Damage — for Battistelli’s Illegal Acts (But Battistelli Himself Has Not Been Punished at All, Nor Have His Enablers)

Posted in Courtroom, Europe, Law, Patents at 11:36 am by Dr. Roy Schestowitz

The people who committed these crimes Are still in power!Summary: The staff union of the EPO (SUEPO) is pushing ahead for justice after more than a decade of chronic, ongoing, systematic injustice, which saw the rule of law abolished, patent quality as “collateral damage”, and Europe’s reputation/leadership in tatters

SUEPO Central is circulating this letter today [PDF]. Of course we’ve managed to get a copy (the EPO is getting more leaky as corruption grows there and people feel desperate to speak out). “SUEPO expresses again its solidarity to all staff in the HR Department,” it says, “who strived to conclude all payments by the end of the year 2021 to repair the damages caused by their upper management.”

“Over the years we heard from aggrieved and unhappy workers from the HR Department.”The short story is, payments were made to 4,523 workers, in effect undoing penalties but not paying anything in compensation for moral harm, amongst other aspects. How many more industrial actions would have been possible if it weren’t for the illegal “strike regulations” persisting illegally for 8 years?

Over the years we heard from aggrieved and unhappy workers from the HR Department. Some left, some stayed while hating the grossly under-qualified boss, and we still have some stories we can share one day. People hate her guts more than she can possibly imagine, but in order to pay the mortgage people need to maintain a shallow, superficial, appearance of an amicable relationship.

“Some of the people responsible are still clinging onto top positions at the Office!”Of importance and of note in this case: nobody was punished for these illegal acts! Not the people who voted for something illegal. Not the management that proposed these illegal regulations. Some of the people responsible are still clinging onto top positions at the Office!

Welcome to the EPO, where immunity means that crimes pay off and doing illegal things is the “smart” thing to do. Like trying to kick off the UPC, even though it is patently and manifestly illegal, as per the simple treaties. This will be a permanent injury not just to the image of the EPO but also the EU’s (UPC is an EU system). What have we sunken to and how can these crises be rectified?

Just like cops who never pay for their crimes (the police departments pay compensation to victims — however rarely — at taxpayers’ expense), Battistelli paid nothing and instead got rewarded with huge compensations upon his departure in 2018. To make matters worse, he also wasted an unbelievable sum of money trying to “get even” (ego-tripping) with judges by illegally sending them to Haar. Those spendings did not come out of his own pocket.

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