EPO Discriminates Against Families of Its Own Workers, the Union Explains Legal Basis Upon Which It's Likely Illegal and Must be Challenged
MORE than 3 months ago the staff representatives at the EPO, specifically union leaders at SUEPO The Hague Committee, explained to staff how to tackle silent discrimination, alluding to a "group of staff that has silently been discriminated by the [ Battistelli/Campinos] reform" (euphemism for attacks on already-understaffed and overworked patent examiners, as per the General Assembly's presentations from a month back).
Workers were reminded they have about 90 days to take action and the union contacted its union members as follows:
RfR Education allowance reform - Dutch schools
Dear colleagues,
With regards to the Education and Childcare Reform, we would like to call the attention of a group of staff that has silently been discriminated by the reform and that have now the possibility to seek for fairness by filling a RFR.
This discrimination affects all colleagues, nationals and non-nationals who chose a national school for their child(ren), as these schools are generally below the threshold.
Furthermore, these colleagues might be affected by the new definition of direct and indirect costs, meaning that even if the total costs are above the threshold, the administration artificially lowers them under the threshold and does not reimburse any of them.
Therefore, if you find yourself in one or both of the following situations:
You requested reimbursement of fees below € 500 and it has been refused.
You requested reimbursement of fees above € 500 (part of) which was deemed to be indirect, and therefore not reimbursed.
You have the right to file a request for review within three months following the refusal for reimbursement. We have prepared a RfR template that can be adapted to your personal situation.
It has now been more than three months and many requests for review have certainly been filed, along with the annexes of relevance as supporting documents (Annexes 2, 3, 6, and 7). The following template helps explain what's at stake, along with fuller context for those who don't know "EPO politics" too well: (the following is intentionally incomplete)
REQUEST FOR REVIEW
(Pursuant to Article 109 ServRegs)
[...]
The present is my request for management review (RfR), pursuant to Article 109 ServRegs, of the individual decision dated [...] (ANNEX 1) taken in application of general decision CA/D 4/21 dated 29 June 2021 and its Circular No. 411 dated 13 July 2021.
[...]
1. Ratione temporis
2. The present request is filed within three months from the date of the receipt of the individual decision adversely affecting me.
2. Ratione personae
3. The impugned decision directly and adversely affects my rights as a staff member of the EPO as defined and protected by the principles of international civil service and the Service Regulations (ServRegs), thereby providing me with a cause of action.
3. Ratione materiae
4. I challenge the individual decision rejecting the reimbursement of the costs for [year] in application of general decision CA/D 4/21 (ANNEX 2) and Circular No. 411 (ANNEX 3) and conveyed through the email from Human Resources/my salary slip of [...] dated [...], as well as the lawfulness of the general provisions themselves, in particular new Articles 71(5) and 71(6) ServRegs and Circular No.411, and request the review of the impugned decision.
5. For all purposes, as the International Administrative Tribunal of the International Labour Organization (“Tribunal” or “ILOAT”) has consistently held, while challenging an individual decision, a staff member is entitled to challenge the lawfulness of the general decision on which it is based. Specifically, the Tribunal found that “a complainant can impugn a decision only if it directly affects her/him, and cannot impugn a general decision unless and until it is applied in a manner prejudicial to her/him, but she/he is not prevented from challenging the lawfulness of the general decision when impugning the implementing decision which has generated their cause of action.“ In Judgment No. 3761, the Tribunal drew from its case-law in this respect and found that where the general decision was unlawful, it will be equally set aside. In this case, I am entitled to challenge the individual decision and the lawfulness of the general provisions that form the basis of the challenged decision.
[...]
1. Background of the reform
6. In July 2020, as part of the “Social Agenda 2020”, the President announced the launch of a Working Group to discuss a proposed reform of the Education and Childcare allowance. The Working Group held its first meeting on 21 July 2020. This announcement – in the middle of the Covid-19 pandemic and school holidays – resulted in strong reactions from staff.
7. Thus, on 30 July 2020, the President announced that he decided to postpone the presentation of the reform to the Administrative Council (from December 2020 to June 2021) as well as its implementation to school children from the year 2021/2022 to the year 2022/2023. He further stated that “[t]he Office will ensure that EPO parents have ample information and time to make well-informed choices about their children's education”.
8. On 29 September 2020, a meeting of the Working Group was held, during which the staff representatives noted the inaccuracy of the figures given by the Office, the lack of consideration of the emails received by the Office from the concerned staff and the ambiguity as to the real goal of the reform (i.e., to make savings).
9. However, in December 2020, the President announced that the target timeline for launching the reform was the school year 2021/2022. A discrepancy with the previous announcement of July 2020 which was pointed out by the Central Staff Committee (“CSC”) in a letter to the President.
10. In February 2021, at a Working Group meeting, a presentation included the issue of siblings in an attempt to assess the impact of extending transitional measures to siblings. However, siblings were ultimately left out of the reform.
11. On 26 February 2021, The CSC presented a proposal within the working group for the reform of the Education and Childcare Allowances. This Proposal highlighted the different legal principles to observe and made several proposals for amendments including: on the scheme for the young child allowance (Article 70 ServRegs), on the ceilings for primary and secondary education (Article 71 Serv. Regs), on the refund of the costs (direct and indirect costs) for primary, secondary and post-secondary (including notably a full refund of these costs for primary and secondary), and proposed a supplement to the expatriation allowance (Article 72 ServRegs). By this proposal the CSC integrated both the legal principles established by the ILOAT and all the alleged intentions of the administration, namely: simplicity, fairness and clarity.
12. On 9 April 2021, the CSC requested the President to adjourn the reform of the Education and Childcare allowance until the pandemic crisis, imposing a high level of stress on staff, is over, to allow proper discussions and negotiations. It also requested that a proposal to amend Article 71 ServRegs be submitted for statutory consultation and added to the provisional agenda of the next Budget and Finance Committee (“BFC”) meeting (exclusively for the purpose of extending post-secondary education benefits to nationals).
13. In April 2021, the document on the reform of the Education and Childcare allowance (document GCC/DOC 2/2021) was shared for the first time with the members of the General Consultative Committee (GCC) “for consultation”. The CSC requested that this document be reclassified as “for information” in accordance with the Rules of the Procedure of the GCC and practice of the Office. This request was denied by the President.
14. On 7 May 2021, the CSC requested to the President to add its counterproposal to the Education and Childcare allowance reform to the provisional agenda of the BFC pursuant to 9(2.2)(b) of the Rules of Procedure of the Administrative Council. This request was rejected by the President. Following the meeting of the BFC on 26 May 2021, the CSC informed the staff of the discussion and shared its counterproposal.
15. On 28 June 2021, in an open letter to the President, the Local Staff Committee of The Hague (“LSCTH”) informed him of the difficulties encountered by many parents with respect to decisions concerning the education of their children, due to the suddenness of the reform and its lack of clarity. The LSCTH also informed the President of the lack of response and support from Human Resources despite numerous queries from parents. The President responded to this letter after the adoption of the reform and dismissed the concerns of the Staff Committee.
16. On 29 June 2021, the Administrative Council adopted the general decision CA/D 4/21 which entered into force on 1 July 2021 with a set of incomplete and unclear transitional measures.
17. On 13 July 2021, the President adopted Circular No. 301 and Circular No. 411, which both entered in force on 1 September 2021, without proper consultation with the staff representatives and the GCC.
[...]
26. The grounds of my request for review are as follows:
1. Procedural flaw: the President did not engage in good faith consultation prior to the adoption of the general decision and circulars
27. At the outset, the ServRegs provide for consultation with the staff representatives through the Staff Committee (Article 37(1) ServRegs) and the GCC (Article 38(2) ServRegs). This consultation process must be undertaken in good faith, which has been reiterated repeatedly by the Tribunal in its longstanding jurisprudence, which held that “[…] a proper consultation must allow a reasonable amount of time for the consulted body to discuss the issue, have its principal questions answered and provide reasoned advice or recommendations, and must also allow time for the deciding authority to take that advice into consideration prior to taking the decision. In Judgment 380, under 21, the Tribunal stated: “Where there is only a simple obligation to consult, the decision-maker's duty is to listen or at most to exchange views. The object of the consultation is that he will make the best decision and the assumption is that he will not succeed in doing that unless he has the benefit of the views of the person consulted. The object of negotiation on the other hand is compromise. This object would be frustrated if either party began with the determination not to make any concession in any circumstances, just as the object of consultation would be frustrated if the decision-maker began with a determination not to be influenced by anything that might be said to him. On both these hypotheses there would be a lack of good faith.” In this case, the President failed to do so prior to the adoption of the decision CA/D 4/21 as well as of the circulars. This requirement for good faith consultation is paramount when the reform is intended to have a lasting impact on the staff and their families.
28. First, the staff representatives were not consulted in good faith although a working group was established to allegedly discuss the Education and Childcare allowance reform. Indeed, all meetings of the Working Group were held via video conference – in the midst of a global pandemic - and incomplete presentations of the proposed reform were made by the Office to the members of the Working Group. In addition, not all stakeholders were consulted (e.g., the trade union SUEPO) or when consulted the facts have been distorted (i.e., relevant schools at all sites), the specificities of each site were not properly considered or addressed, and the necessary data or specific analysis requested by the Working Group were not provided (e.g., no in-depth impact study, no legal analysis). In fact, several important topics could not be adequately discussed by the Working Group and were not properly addressed by the Office, such as the issue of siblings. As a result, the alternatives proposed by the staff representation were not given due consideration, in particular in the reform proposal. The lack of good faith is further evidenced by the President’s decision to reject the request of the CSC to add its counterproposal to the provisional agenda for the meeting of the BFC of 26 May 2021, in breach of Article 9 (2.2)(b) of the Rules of Procedure of the Administrative Council, as well as in view of the dubious real purpose of such a reform.
29. Moreover, the complete lack of good faith is clearly evidenced by the President’s changing and contradictory announcements regarding the implementation date of this reform. Indeed, at first and due to the strong concern of staff, the President informed that the implementation of the reform for school children would be postponed to 2022/2023, but a few months later the President backtracked and announced that the reform will be implemented for the year 2021/2022. In fact, it is clear that the President decided not to make any concessions and the Working Group was not created to participate substantially in the reform process.
30. Second, the GCC was not consulted in good faith and was merely a formality that the President had to complete in order to submit his proposal to the Administrative Council. In order to keep consultation with the GCC to a minimum, the President decided to depart from the well-established practice of submitting the relevant documents first “for information” and then, for a second meeting, “for consultation”. In the present case, the President submitted the documents to the GCC directly “for consultation” despite the clear issues already highlighted by staff representatives about the proposed reform. In particular, the President made it clear to the staff representatives of the LSCTH that “the Administrative Council needs to be submitted a complete and financially sound and balanced reform package. Any proposal not meeting these requirements is not deemed realistic”. Thus, the President pre-empted the outcome of the GCC meeting, which in any event had no other opportunity to discuss the reform further.
31. Third, the Appellant points out another blatant example of failure to consult in good faith of the Office through a “last minute” and major change introduced by the Office in new Articles 71(5) and (7) ServRegs. Indeed, in document GCC/DOC 2/2021 (ANNEX 6), submitted to the GCC for consultation, the wording of the proposed new Article 71(5) (under Article 4 of GCC/DOC 2/2021, page 24) read as follows: “Art. 71 (5) The direct education costs, comprising enrolment and tuition fees, incurred for pre-school primary and secondary education that exceed EUR 500 per academic year will be reimbursed up to an annual ceiling as set out in Annex IV to the Service Regulations” (emphasis added).
Art. 71 (7): The direct education costs, comprising enrolment and tuition fees, incurred for post-secondary education that exceed EUR 500 per academic year will be reimbursed at a 70% rate up to an annual ceiling as set out in Annex IV to the Service Regulations” (emphasis added).
32. However, in document CA/7/21 (ANNEX 7) presented to the BFC and to the Administrative Council, the word “comprising” was changed to “namely” having a detrimental effect of restricting the general list of direct costs (see under Article 4 of CA/7/21, page 22). This major change was made without any prior consultation with staff representatives and the GCC. As a result, general decision CA/D 4/21 adopted an amended version of Article 71(7) ServRegs without this amendment having been discussed with the relevant consultative body. Such amendment raised numerous concerns and should have previously been discussed with the GCC as it gave a radically different meaning to an already very debated amendment.
33. Fourth, following the adoption of CA/D 4/21 on 29 June 2021, another meeting of the GCC was scheduled on 6 July 2021, which surprisingly led to a presentation of the circulars to be adopted by the President pursuant to the newly effective (on 1 July 2021) decision CA/D 4/21. Once again, the President decided to submit directly the documents “for consultation” and thus avoided any discussion on the matter, contrary to the practice of the EPO. In any event and in addition, these documents and proposed Circulars were never discussed with the staff representation, which means that there was no consultation at all in the context of Circulars No. 301 and No. 411. The President presented the staff representatives with a “fait accompli” and no reasonable amount of time was provided to discuss the matter.
34. In light of the foregoing, the Office has failed to conduct a proper consultation with staff representatives. Indeed, there was no urgency to reform the Education and Childcare allowance system and, therefore, the President could have allowed sufficient time to conduct a proper consultation and find a more agreeable solution, including the date of implementation of the reform and its conditions. The result was the adoption of a reform based on inaccurate figures and projections, but with a serious and lasting impact on staff and their families, and contrary to the EPO’s commitment for Diversity and Inclusion.
35. Ultimately, in the context of this reform, the President has not consulted in good faith with the staff representatives, it appears that he has also deprived the staff of expressing their opinion, including me. The general decisions and circulars are flawed and unlawful. Likewise, the impugned decision being based on unlawful general provisions is void ab initio.
2. CA/D 4/21 and the subsequent impugned decision are unlawful as they breach the principle of equal treatment
36. The adoption of the Education and Childcare allowance reform has resulted in a breach of the fundamental principle of equal treatment as established by the Tribunal. Under the argument that all staff members should be treated equally – despite proven substantial differences, CA/D 4/21 – and subsequently all decisions adopted on this basis – breached the above principle. In particular, in my case, I point out the following:
• New Article 71(5) Section II “pre-school primary and secondary education” (and Annex IV) introduces an arbitrary minimum threshold of €500 of fees for reimbursement and an arbitrary ceiling laid out in Annex IV. New Article 71(5) ServRegs, unlike the former Article 71(5) ServRegs, limits the type of direct costs covered by the reimbursement. Indeed, the new article 71(5) ServRegs provides for the reimbursement of “enrolment and tuition fees” and Article 3(1) of Circular No. 411 further elaborates by giving examples of expenses being reimbursable such as “registration, admission, application or entrance fees”. Thus, the reform considerably limits the type of costs covered, whereas the old system under Article 71(5) provided for the reimbursement of:
“(a) direct education costs, namely registration and examination fees, and general fees for schooling and education charged and invoiced by the educational establishment; (b) miscellaneous education costs, namely all other expenses connected with education, such as expenses for board and lodging, books, private tuition and daily travel. (c) travel expenses between the educational establishment and the place of employment.”
Thus, a vast majority of the costs that were previously taken into account in the calculation of the education allowance have been taken out and are now considered as indirect costs covered by the lump sum of new Article 71(6) ServRegs. As a result, staff members are treated equally despite their different situations. Staff members have different costs for their children depending on where they study and the requirements of each school.
• New Article 71(6) Section II “pre-school primary and secondary education” (and Annex IV) introduces a system which is based on a monthly “universal lump-sum” for indirect costs and no longer on a percentage of the DCA of the country of study. More precisely, Annex IV established a lump sum of 112. It is obviously very clear that for parents who have, for instance, school trip costs (previously considered direct costs), this amount is ridiculous and does not take into account the difference of situations (and thus of costs) parents have to bear for their children depending on where they study and requirements of each school.
37. In documents GCC/DOC 2/2021 and CA/7/21 the President declares that “Further to an in-depth analytical review by the Office as well as discussions with social partners, this document presents a reform proposal of the education and childcare schemes. The reform is designed to enable all EPO staff with dependent children to benefit from these schemes, regardless of their nationality, by introducing a fairer scheme that is easier to understand, to access and to administrate” (emphasis added). However, by setting the arbitrary threshold of 500 €, the Office is excluding part of EPO staff, including myself. The Office is breaching the principle of equal treatment and is discriminating me against by setting this threshold.
38. Further, in these documents the President also declares that “to limit operational complexity, reimbursement of direct costs will only take place for amount exceeding €500 per year”. It seems the Office is discriminating me for the sake of avoiding to deal with my situation, discriminating me against other colleagues in other (and likely to be more complex) situations not excluded for limiting operational complexity.
[39. Furthermore, by setting the threshold of 500€, the Office is, contrary to its alleged intentions of including nationals, de facto discriminating against me as a national, as schools in The Netherlands have in most cases fees below this threshold.]
40. In addition, the Office intended to conceal this blatantly inequal reform by adopting transitional measures. However, these transitional measures are insufficient to preserve the rights of staff and cannot justify unequal treatment. In any event, the transitional measures are not applicable in my case and do not change the damage caused due to the unlawfulness of the decision.
41. In my personal situation, the general decision and its circular, embodied by the impugned decision are prejudicial as [...].
3. The impugned decision is arbitrary
42. In light of the above, Article 71(5) ServRegs establishes a general list of direct costs covered by the Office, leaving the Office ample opportunity to deny reimbursement for certain direct costs that would not be labelled according to this list but are still a part of those mandatory direct costs.
43. Nevertheless, Article 71(5) ServRegs must be read in the light of its implementing circular (Circular No. 411), which provides more detailed information on the type of costs considered to be "direct costs". Indeed, Article 3(1) of Circular No. 411 provides as follows:
“(1) For the purpose of direct education costs, the following expenses are reimbursable: (i) fees that are required to enrol a child in an educational institution. Such fees cover registration, admission, application or entrance fees
(ii) tuition fees for full-time attendance which are invoiced by the educational institution and certified by the educational institution as being necessary for attendance
(iii) capital fees or development fees levied by educational institutions to fund the construction, refurbishment and maintenance of buildings. Such fees may be levied at the time of first enrolment, every year or as needed.”
44. Although Circular No.411 remains general, it clearly refers to fees “required to enrol a child in an educational institution” and “tuition fees for full time attendance” and must be interpreted in favour of the staff in order to encompass any situation and specificity of the country of study. For example, in cases of registration fees payable to the municipality/state and not to school directly or in situations of mandatory trips, in light of Article 3(1) Circular No. 411, these costs must be considered as direct costs as they are fees required to enrol a child and/or tuition fees in an educational institution. In particular [...] is part of the curriculum, and as such part of the tuition.
45. Furthermore, in considering that such direct costs of enrolling a child in an educational institution should be taken into account under Article 71(6) ServRegs, which does not define the type of indirect costs, the Office erred in law and further abused its authority.
46. Therefore, the manner in which the Office has chosen to interpret its own rules (i.e., unfavourably to staff and without basis) makes the applicable regulations particularly opaque in violation of the principle of transparency and legal certainty, leaving staff members at the mercy of the Office without knowing what will or will not be reimbursed for the direct costs of enrolling a child in an educational institution. [...]
47. In documents GCC/DOC 2/2021 and CA/7/21 the President declares that “to limit operational complexity, reimbursement of direct costs will only take place for amount exceeding €500 per year” and provides no further explanation as to why this threshold is set. By setting a threshold of 500€ the Office is choosing an arbitrary amount to exclude part of its Staff of receiving the education allowance.
48. Moreover, it seems the office is taking an arbitrary criteria to limit operational complexity, which is avoiding certain payments. Instead the Office could have decided to simplify the administrative procedure instead of excluding me from benefiting from the education allowance to avoid its workload.
49. The impugned decision is therefore arbitrary and constitutes a clear abuse of discretion on the part of the Office
4. The Office’s breach of promise, of my rights and expectations and its duty of care
50. This unlawful reform and subsequent impugned decision have seriously infringed my rights and legitimate expectations as a staff member of the EPO and was made in breach of the Office’s duty of care towards its staff, thus causing me undue hardship.
51. Indeed, the Office has: • Caused me undue financial injury based on an inherently unlawful reform and arbitrary impugned decision. This financial burden is reinforced by the lack of transitional measures that could have allowed me to plan accordingly. I would have to cover up to [amount] for my child/children for the academic year [year]. Besides, the lack of adjustment of salaries and allowances to inflation makes the financial burden even greater. [As a staff member at a lower grade, the financial impact of the reform on my financial and personal situation is even greater and I am barely able to afford the extra costs related to my children’s education.] Through the reform and impugned decision, the Office is abusively interfering in my private and family life. • Breached my legitimate expectations, insofar as when I received an employment offer from the EPO, the Education and Childcare allowance system was one of the reasons that induced me to accept this offer. I had a legitimate expectation that the former system would be maintained, at least for those employees who had joined the Office prior to the reform, as it was an essential component of the employment features of the Office that had been in place for years. I had a legitimate expectation to be able to provide and continue to provide my children with an education that matched my requirements and expectations, especially since my child/children were already in school before the reform came into effect. • [Breached my acquired rights, as an expatriate, to the continuation of the former regime. In particular, the Education and Childcare allowance system was a fundamental term of employment and which induced me to stay. I find that the reasons for the change are not rational, logical and credible. For instance, the logic behind equalising nationals and expatriates is at odds with the position the Office has supported for several years. In any case, I consider that the former regime was fair to international staff in order to encourage candidates from all EPC members to apply at the different EPO sites and to compensate for the negative impact that not being in one's home country can have on the family in particular. The negative consequences of the reform on expatriates are very important insofar as the financial but also moral impact is considerable. The Office is now depriving me of the possibility to give my children the education most consistent with my status, and that of my family, as an expatriate.] • Breached its promise of including all EPO staff in the reform. The office announced a reform that would “enable all EPO staff with dependent children to benefit from these schemes” . However, contrary to this the Office is, by setting the arbitrary threshold of 500€, depriving me as a [as a national] from benefiting of the education allowance scheme from which I was benefiting prior to the reform. [/ as it would have been the case in the old system that did not define any threshold.]
52. The impugned decision resulting from an unlawful reform was taken in breach of promise, my legitimate expectations and rights and it caused me moral and material harm. The reform was implemented abruptly, and I was not sufficiently informed beforehand and was, in any event, not given sufficient time to adapt to the reform.
To the Council, the EPO boasts about its wealth (seeking to impress by how much breaking the law "pays off"); to the staff, the EPO claims to be broke and in need of deep cuts. Sometimes it seems like the sole goal is to pocket the vast difference (at the expense of families of examiners) and gamble away the spoils as means of "financialization". █