The following report was circulated last week and it was authored by one victim of the unlawful witch-hunt. SUEPO members have seen this already and the public should too. This is where the EPO stands
INTERNATIONALE GEWERKSCHAFT IM EUROPÄISCHEN PATENTAMT
STAFF UNION OF THE EUROPEAN PATENT OFFICE
UNION SYNDICALE DE L’OFFICE EUROPEEN DES BREVETS
Ortssektion München
Local section Munich
Section locale de Munich
10 February 2023
su23005mp – 0.2.1
SUEPO Munich Chairman’s report
2021 – 2022
The SUEPO Munich elections for the period 2021-2022 took place in March 2021. The election results were announced on 17 March 2021, and the committee constituted on 29 March 2021. Presently the committee is composed of four members. The number of SUEPO Munich branch members remained stable between 1.700 – 1.800. The membership income is however decreasing slowly since more staff are going on pension than are hired by the EPO.
Work with EPO management.
The most prominent fact to be mentioned here is the consistent reluctance of Mr Campinos to talk to the unions over the last two years. Mr Campinos successfully avoided all invitations coming from SUEPO and when the unions called for industrial actions, Mr Campinos sent a delegation of members of the administration without any mandate to propose anything. However, the work with management at all other lower levels is relaxing.
Operational
Year 2021
Caterers kicked out
Throughout 2021, the Covid-19 epidemy raged on. EPO staff adapted to the ‘Emergency Guidelines’ allowing them to work 100% from home or from abroad. These had major implications for the EPO, for the staff and for the contractors.
The caterers of our canteens were decimated during the pandemic years, to the extent that all our canteens in Munich were closed down. From April to September 2021, the staff committee Munich supported by SUEPO Munich, organized a GOFundMe campaign and collected over Euro 100.000 support for the 40 canteen staff laid off.
‘Team Leonardi’ was the caterer in Munich who served EPO staff the longest with great food. Some employees had been with us for 20-30 years. Now most of them are either unemployed or retired. All of them however were very thankful for the donations.
Education allowance
In May 2021, the Office tabled in the General Consultative Committee (GCC) the Education and Childcare allowance reform. Officially, the reform was aimed at introducing equal treatment between expatriates and nationals. However, it significantly reduced benefits to EPO sites relying on International Schools while reducing the overall budget by -10% compared to the previous years at a time the EPO made a profit of over 348,9 million euros.
The administration remained oblivious to all the letters sent to them with all the rational arguments presented therein, which were repeated in the GCC. Instead of simplifying the work of the HR Department, we explained that it would rather increase their workload. Two years later in 2023, we are proven right. Any request sent to the HR needs months to be answered due to the high amount of work regarding the education allowance requests. The lack of proper definition of indirect costs is now the preferred tool of HR to reduce reimbursements and pretend they are covered by a “lump-sum”. It is worth nothing that this reform was again drafted and implemented by Ms. Elodie Bergot. Yet another successful project….against the staff.
An army of litigators
The savings made by the EPO on the back of staff and the education of their children amount to what the EPO invested in an army of litigators. In the same month the education allowance reform was introduced, May 2021, the EPO presented a financial request to the Budget and Finance Committee (BFC) for a tremendous increase in their litigation budget for external law firms working on the EPO’s behalf in front of the Tribunal. The budget increased from a few hundred thousand Euros in the past years to 5.8 million Euro. It just shows the kind of social dialogue Mr Campinos has in mind.
New Normal
In May 2021 the EPO embarked on yet another ‘successful’ pilot project described in an orientation paper, the ‘New Normal’. The paper was essentially empty and void of any specifics. It was not even tabled in the GCC. Mr. Campinos considered its purpose was only to give the “opportunity to give further input” to “stakeholders” which will be assessed for inclusion in the final draft of the document.
In our opinion, proper good faith consultation would have allowed a reasonable amount of time for statutory bodies to discuss the issue, to have its main questions answered and to provide reasoned advice. The proposed exercise merely consisting in sending “further input” to an email alias address, lacked essential features of a genuine consultation.
Even external stakeholders have realized that such a call for input is more of a communication exercise than a consultation. The same is still happening on the topic of quality for which the EPO showed reluctance to come to the round table.
Young Professionals
In June 2021 the EPO provided another blow to its staff and future staff. Management tabled Circular 405 which goes again in the exact opposite direction than what is needed. Instead of providing young staff with a safe and secure environment the Circular puts all new staff on a 13 years’ probation. According to the EPO, young staff prefers precarity.
The new colleagues, named ‘Young Professionals’, are recruited directly from the university. In order to propose the lowest salaries ever, the EPO had to cobble together a new way of putting them off-scale below the lowest grade and step at the EPO. They are recruited for one year. They can obtain a two year extension. After these three successful years, the ‘Young Professional’ can apply for a five year contract. Again, passing these 5 years the not so ‘Young Professional‘ anymore can be extended for five more years. Overall, it constitutes 13 years on probation. After passing these 13 years of probation the middle aged ‘Young Professional’ could become a permanent staff provided that the EPO sees a need for her or him.
We are appalled by this new reform and treatment of our new colleagues. Once again, we tried to make positive suggestions but to no avail. In a competitive environment where the industry offers permanent contracts after one year and even 6 months, the EPO is actually deteriorating even further its employment package. We expect this reform to have a profound negative effect on the office capability in finding job applicants to perform its tasks in the future.
Year 2022
Technologia Survey
Beginning of 2022, SUEPO organized the Fifth Edition of the ‘Technologia Staff survey’. The Technologia Survey is organized by SUEPO every three years without interruption since the last 15 years. When the EPO runs its own staff survey, it formulates non-question so as to get non-answers. And when answers tend to be negative for management, the results are swept under the carpet.
Call for actions
Simultaneously, SUEPO called for actions. The action was necessary in view of many unresolved issues such as:
• violation both individual and collective of the rights of staff to freedom of association since 2013;
• inefficient and biased EPO internal justice system
• unsolved major reforms such as the salary adjustment procedure and its disastrous loss of staff’s purchasing power ignoring the massive efforts made by EPO staff during the pandemic time.
• the introduction of an alleged “coverage gap” predicted for 2038 which was covered already in the first two years since mentioning it.
An overwhelming number of staff (90%) voted for the action plan.
The ‘Work to rule’ action appeared to be successful. This action continued throughout 2022 until end of September. The action had a great impact on the production of grants. This effect was also echoed by the delegates in the Administrative Council where they indicated that in some national office they had to lay staff off because of lack of income. However, none of them came to the conclusion that maybe the lack of dialogue with the staff could be a problem and that maybe a different approach from the management would improve things.
Strike
SUEPO called for 1 full day of strike on the 22 March 2022.
According to the unsigned Intranet Communiqué from management, 1.514 employees participated in the strike. It was the highest result of an industrial action since 2016 and an even better participation than in the strike of 15 December 2020. It was a clear signal to Mr Campinos that there is room for improvement in terms of social dialogue.
In addition, strike registration was made difficult by the management and therefore still remains an unreliable tool. When putting the figures into perspective, even based on these unreliable and incomplete data, we count that at least 40% of non-managerial available staff went on strike.
SUEPO invited Mr Campinos to urgent meetings and proposed multiple dates (1 April, 5 April or 6 April) with the aim to explore ways out of the social unrest with the aim of delivering positive outcomes to our legitimate claims.
Needless to say that Mr. Campinos did not turn up but sent his management instead to the negotiation table. They came empty handed however, with no proposals or mandate to solve any of the raised problems.
Our successful actions were also followed closely by the media.
Political and legal
SUEPO Central is the structure regrouping all SUEPO committees from all four places of employment (or sites). Together we are able to tackle all the issues which have become of a more general nature concerning all staff. Munich being the biggest site participates financially and legally to this structure to a very large extent. Actions launched by SUEPO Central are normally backed by all SUEPO committees.
Year 2021
Following a series of well attended General Meetings in all sites, the SUEPO committees were entrusted by their members to prepare litigation procedures against the New Salary Adjustment Procedure (SAP). Via SUEPO Central, templates to challenge the procedure were provided for the deadline of 16 March 2021 which was the deadline for filing the management review (RfR). Over 1.200 staff members filed this review.
Campinos protecting Battistelli’s legacy
In February 2021, Mr. Campinos rejected the Appeals against the New Career System and Invalidity Lump sum. As in the past and in the same line with his predecessor Mr. Campinos followed the majority opinion in favor of the EPO for the New Career system but at the same time refused to follow the unanimous opinion for the Invalidity lump sum when this was in favor of the staff.
The days when Mr Campinos preferred to reduce litigation through settlement discussions seem now to be over. By selectively following ApC opinions to confirm two major negative reforms against EPO staff, Mr Campinos reveals one facet of his mandate: to protect and pursue the political legacy of his predecessor.
In May 2021, SUEPO provided appeal templates to challenge these decisions in front of the ILO.
Cash injections for upper management
In April 2021, SUEPO provided another request for review template this time against the unfair cash injections in the Salary Savings Plan (SSP) of lower grades. Managers in higher grade fill their pockets with 16x more injection in their private salary savings plans than the staff in the lower grades. It was questioned why the higher managerial staff should receive 16x more financial injection (bonus) in their private salary savings plans when their salaries can only be up to 3x more than staff in the lower salary scales.
Strike judgments
Since 2013, EPO staff were subject to illegal strike regulations put in place by Mr. Battistelli and zealously implemented by Ms. Elodie Bergot. Such a regime infringing the fundamental right to strike continued to prevail under the first mandate of Mr. Campinos.
On 15 December 2020, 1.448 employees representing 22,6% of all staff participated in a strike against the new salary adjustment procedure. On the January 2021 salary slip, the EPO deducted 1/20th of a monthly’s salary for a whole day of strike (instead of 1/30th) or 1/40th for half a day of strike (instead of 1/60th). The excessive strike deductions put in place since 2013 were already the subject of complaints pending in front of the Tribunal.
SUEPO provided yet again a Management review template to challenge this excessive deductions.
In its 132nd session on 7 July 2021, the Tribunal delivered a total of 43 judgments, of which 25 concern the EPO. The encouraging news from this session was that very important cases were finally ruled in favour of the complainants (i.e. the staff):
• Judgments 4433 and 4435 on strike deductions;
• Judgments 4430, 4432 and 4434 on Circular 347.
A more detailed overview of all judgments of the 132nd session can be found here. The Tribunal ruled that the EPO infringed upon staff’s fundamental rights and imposed excessive strike deductions of punitive character. EPO management, Mr. Battistelli and Ms. Elodie Bergot, were sanctioned for abusing their power. Furthermore, the Tribunal considered that the EPO interfered in the legitimate call for strike on 2 and 3 July 2013.
At the time, Ms. Elodie Bergot had sent letters to those declaring themselves on strike informing them that their absence was treated as unauthorised absence and that future unauthorised absences would lead to disciplinary action. The Tribunal considered it was an attempt to stifle, by threat, the exercise of the lawful right to strike and that Ms. Elodie Bergot acted without authority when sending the letter.
After 8 years of breach of a fundamental rights at the EPO (including 3 years under the mandate of Mr. Campinos), it was now up to Mr. Campinos to take the consequences and to repair the damage done to the Organisation. Mr. Campinos reimbursed the excessive strike deductions with interests. The bigger damage however was to the reputation of the office now proven to be a repetitive offender of fundamental rights. Ms. Elodie Bergot suffered no consequence and was even promoted to Chief Policy Officer was left in charge of the sensible Welfare and
Remuneration department (where she did the most damage) and her contract was then extended for a further 5 years until 2028.
No moral damages have been awarded to those who neither filed a complaint in front of the Tribunal nor an application to intervene although their rights have also been infringed. In a meeting with the Central Staff Committee (CSC) on 15 September 2021, Mr Campinos even strongly excluded any form of apology from the Organisation to the staff.
A biased Appeals Committee?
The Tribunal declared the strike regulations (Circular 347) illegal and set these aside. Back in 2015, the Dutch Court of Appeal had also found that these violated fundamental rights.
However, the EPO Appeals Committee (ApC) had issued a majority opinion in favour of the strike regulations. This wrong opinion was even supported by the Appeal’s committee Chair at that time, Sir Paul Mahoney despite his former experience as a Judge at the European Court of Human Rights. This blunder came as clear evidence of bias and dysfunction of the EPO internal justice system.
In view of the fundamental importance of legal certainty and social peace, and in order to restore staff’s confidence in the opinions of the internal Appeal’s committee (ApC) as soon as possible, as well as to be settle disputes internally instead of at the ILOAT, the CSC urged the delegations in the Administrative Council (AC) to take 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 General Consultative Committee (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.
Litigation: past and new reforms
In July 2021, SUEPO prepared and published the internal appeals templates for challenging the new Salary adjustment procedure.
In September 2021, SUEPO provided requests for review (RfR) templates to contest the Education and Childcare allowance that disproportionately affected some colleagues more than others.
In November 2021, SUEPO organised a survey on teleworking in order to reassess the telework preferences one year after the introduction of the new normal way of working.
In December 2021, SUEPO prepared templates to challenge the new career system (CA/D10/14) in front of the Tribunal.
Year 2022
“Social Democracy” and EPO institutional harassment
In February 2022, the Tribunal ruled in its 133rd Session 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 by Mr. Battistelli and Ms. Elodie Bergot 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.
Between all these successful legal actions SUEPO continued also in 2022 to provide staff with standard management reviews or complaint templates against the different negative reforms such as the salary adjustment procedure.
Ban on mass-emails declared unlawful
On 6 July 2022, the Tribunal ruled yet again against the EPO in another blockbuster Judgement 4551 that the EPO Communiqué of 31 May 2013 restraining the use of email to no more than 50 recipients without prior authorisation breached the fundamental right to freedom of association. The Tribunal considered that the true reason was to exercise prior censorship on the content of communications.
It also confirmed that the mass emails of the staff representation and unions at the material time did not exceed the limits to freedom of opinion and speech, and hence did not justify a mechanism of a prior authorisation.
After 9 years of breach of freedom of communication (including 4 years during the mandate of Mr. Campinos), the Tribunal has declared the ban of mass emails was unlawful. Six months later, at the time of writing this report (February 2023) Mr. Campinos has still not lifted the technical restrictions imposed on staff and their representation. It is yet another judgment confirming his lack of willingness to restore fundamental rights at the EPO on his own initiative.
In August, in September and then in November 2022, SUEPO and the staff representation demanded that the judgment be finally executed. The response was a lame excuse. The EPO now pretends that staff representation is an entity not in the interest of the service and which makes ‘marketing’ for itself or others on EPO lines. On top of that, management wants to force the use of an external provider acting as a black box for sending emails. Access to EPO mailing-lists for addressing all staff remained forbidden as well as the limitation to 50 recipients.
Final words
Presently, the EPO managed to yet again anger staff by starting a new ‘successful’(!) project named ‘Bringing teams together’. This project is so badly managed that even hard line managers are distancing themselves from it. Allowing only a selected few to have an individual office and moving the rest of staff out of their rooms in ‘workplaces-for-the-day’ (hot desking) is demotivating and it is disconnecting staff from the EPO. The aim of the higher management is apparently to overcome the ‘ghost’ feeling in the buildings and to “bring the teams” together. Following the first plans we saw the teams will neither be together nor is the EPO any better. The EPO has now, next to the ‘ghost’ feeling also the ‘hospital-sterile’ feeling too as no personal items are allowed in the office anymore.
During the last two years, the EPO staff underwent several badly designed and wrongly implemented reforms. It would take a lot of time to comb through them to find a single positive aspect for the staff. Over the same period, Mr. Campinos neither met
with SUEPO Central nor with SUEPO Munich. The last meeting was on 18 November 2020. To be noted that during that meeting Mr. Campinos forecasted that: “In any case, if SUEPO wants back access to mass-emails, it would be only in the framework of a Memorandum of Understanding. SUEPO will lose in Geneva anyway.” Now that Mr. Campinos lost the case in Geneva, he launched into an exercise of bad faith in order not implement it.
In 2023 the office embarks on a follow up financial study to the biased financial study made by Mercer in 2019. Mr. Campinos already announced in the Administrative Council that the office is again looking at a deficit of two billion Euro. This number was mentioned even before starting the financial study. It shows already where the ride will end. The main reason mentioned for this was the salary adjustment.
Internally however, we see an imbalance in the workforce. Namely, in the number of staff working on the line and those who don’t. It has become very obvious that new Director posts are generated regularly in the DG’s outside the line. Also the ratio of staff to a director in DG1 in comparison to those in the other DG’s is highly imbalanced. This increase in the ‘Wasserkopf’ is unsustainable to use a managerial term. Less ‘Chefs’ and more ‘Indians’ would be appreciated in order to alleviate the pressure put on the examiners to produce the 10% more products to cover the apparent deficit.
The mathematically challenged salary adjustment was a shock to everyone. The lack of a salary adjustment for many years was a shock to staff. This was followed by a large adjustment which was a shock to the management and the AC. Hence, the salary adjustment method designed by Ms. Bergot is demonstratively a complete failure. A new method needs to be presented to the AC at the end of the six years period, in 2026. The preparations need to already start next year. This time around, maybe Mr. Campinos considers a tried and proven salary method like the one from the European Commission, instead of re-inventing the wheel. That method was agreed on by the ministers of all member states, hence also by those member states in our Administrative Council. It provided moderate adjustments over the years without any shock effects and is not legally challenged by the over 30.000 staff to whom it applies. Also it is ready to be implemented, therefore the cost in developing a sound salary adjustment method is minimal.
In view of the financial study to be performed, we can only warn of any new negative reforms in the near future and other cuts in staff’s welfare and employment package (eg: pension reform). If the management want to reach the envisioned drastically increased targets then unrest, especially in the examiners area is probably not the best way to achieve it. Presently, after the pandemic years and the new normal project staff need a period of consolidation with no new detrimental reforms. EPO staff do not need even more disruption. What they do need is to be moved back into their comfort zone. The EPO experimented enough on the back of the staff over the last 10-15 years with the mantra of ‘moving the staff out of their comfort zone’. The result is high sickness levels, lower production, lower quality, demotivation and disconnection.
And finally for the next SUPO mandate, the pensioners and their rights should come more into focus. The EPO has more and more pensioners but treats them stepmotherly. Pensioners are treated almost like every other external public member even if they worked for the EPO and contributed to the success of this office for 20, 30 or even 40 years. The support they receive from the office when they have difficulties with their pension or health care needs to be improved, a lot.
It is time for management to revise their policies.
Ion Brumme
Chairman SUEPO Munich (2021-2022)
Content is available under CC-BY-SA