06.10.15

EPO Comes Under Fire From the Bavarian Data Protection Supervisor After the Spying Scandal

Posted in Europe, Patents at 7:07 am by Dr. Roy Schestowitz

Summary: The European Patent Office (EPO) has just come under fire from the political establishment in Germany

TECHRIGHTS published 5 articles about the EPO yesterday (surely an all-time high), including two articles about keyloggers that the EPO is using. SUEPO’s public site heralds right now that “EPO hits the news in Germany” because of the “Spy scandal”.

Süddeutsche has just published another article (it wrote about the EPO several times before). “Bavarian Data Protection Supervisor calls for external oversight at the EPO,” wrote Wikinaut about the article, citing Süddeutsche (again) with today’s big article.

The EPO’s management is being very naughty with this tactless last resort to blackhat surveillance methods. Comments in IP Kat focus on who was aware/involved and ultimately who is accountable. When will the German police get involved? It’s clear who the criminal is; it’s clear whose favour the courts ruled in; it’s clear who’s not obeying the law.

A translation of the Süddeutsche article would be very much appreciated, if any of our German-speaking readers are able to provide it (e.g. post it in the comments below). █

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06.09.15

Links 10/6/2015: BQ’s Second Ubuntu Phone on Sale, Desura and Bankruptcy

Posted in News Roundup at 6:44 pm by Dr. Roy Schestowitz

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Full Translation of Süddeutsche Zeitung Article About Blackhat Tactics (Keyloggers) in EPO (Updated)

Posted in Europe, Patents at 3:31 pm by Dr. Roy Schestowitz

See “Researchers link QWERTY keylogger code to NSA and Five Eye’s Regin espionage malware”

Summary: The European Patent Office (EPO) finds itself at the centre of attention (unwanted attention) because of rogue activities

A FEW hours ago we wrote about the EPO's use of keyloggers, a practice so controversial (to say the least) that one can end up locked up in a cell for using it. Süddeutsche Zeitung, which wrote about the EPO before, is really putting some big pressure on the EPO right now (perhaps someone will resign soon). The German article has just been published by IP Kat in English. For our record we present it below:

The European Patent Office carried out secret surveillance on employees using keyloggers

·        
At the headquarters of the European Patent Office (EPO) two publicly accessible computers were fitted with cameras and surveillance technology during a period of several weeks.

·        
They were used in an internal procedure which involves a patent judge who is accused of having disseminated defamatory communications about the President of the EPO and other managers over a period of months.

·        
However, the action also affected many employees of the EPO, perhaps even members of the Administrative Council.

by Katja Riedel

The President of the European Patent Office (EPO) is set to travel to Brussels next week. There he will be received by the Legal Affairs Committee for “an exchange of views” according to the agenda. Benoît Battistelli is supposed to speak about the latest developments in patent law, the new patent courts and various other reforms.

There should be no lack of subjects for discussion in view of the ongoing state of crisis between Battistelli and many of the approximately 7,000 employees in Munich, Berlin, Vienna and The Hague. Since Battistelli initiated an extensive reform programme, which amongst other things has completely restructured the EPO’s career system, there have been vehement confrontations. Now a new and awkward subject has been added to the list: allegations of covert surveillance.

According to an internal document which the SZ has seen publicly accessible computers were placed under surveillance at the EPO towards the end of last year: by means of cameras and so-called keyloggers. This allows the recording of what the user types, which pages he accesses and how he communicates.

None of the users were aware that the devices had been installed

Some keyloggers are capable of taking snapshots of the screen. The camera records contemporaneously which person was operating the computer at the time in question. A particularly juicy detail here is that none of the users were aware that the devices had been installed – and the two computers which were equipped with these monitoring devices according to the confidential document of the internal investigation unit, were probably located on the first floor of the EPO headquarters at Erhardtstraße in Munich.

Namely, in a publicly accessible area, which was provided especially for the members of the Administrative Council – the highest authority in the European patent world – on which the representatives of the 38 member states sit. The visitors to the Patent Office who typically sojourn on the first floor also include patent attorneys. On Monday [8 June 2015] the EPO declined to comment on the internal document but did not contest its authenticity.

In the document drawn up by the Head of the EPO’s investigative unit and sent to the Data Protection Officer, the reason given for the surveillance measures was a defamation campaign against the President and other managers of the Office.

In fact, since the beginning of 2013, letters accusing Benoît Battistelli, and also his Croatian Vice President Zeljko Topic, of numerous misdeeds have been circulating. There were strong indications that these letters had been sent from the two computers in question to which not only every registered visitor but also every employee of the EPO could log in via a common password. Therefore, according to the internal communication, it was not possible to identify and monitor an individual user.

Covert surveillance of the terminals in question

Apparently the internal investigators had come across IP addresses that they could assign to both of the public computers. For this reason, according to their conclusion, there was no other option but to place the two machines in question under covert surveillance. If during the agreed six-week time window between 7th November and 18th December no further defamatory material was sent, neither the pictures nor the data would be analysed, it was stated. Until then, the information that was monitored would only be available to the members of the internal investigation unit and the IT technicians.

The matter is also particularly sensitive because during the period in which the surveillance was being carried out the 142th Meeting of the Administrative Council also took place in the building, namely on 10. and 11. December 2014.  In addition, the Budget and Finance Committee also met during the period in question.

The computers are apparently located near the room where the Council meets. Whether this body and the Office Administration, i.e. Battistelli, was involved in the procedure is unclear. This is not apparent from the document. This only includes handwritten notes of two of the signatories but the signatures are missing.

Even insiders expressed reservations

In fact not only was material sent, but also a suspected letter-writer was caught – hence the data were also analysed. A member of the Boards of Appeal of the Office, a patent judge, was apparently caught in the act and Battistelli immediately subjected him to a “house ban”. This was equal to a suspension and consequently a legally impermissible interference with the independence of that department [i.e. the Boards of Appeal], which was retroactively rubber-stamped by the Administrative Council.

However, the tide of indignation ran high. Off the record even insiders expressed their reservations about Battistelli’s actions. Politicians from individual member states and patent attorneys expressed their outrage in public and even spoke of violations of fundamental rights.

The EPO declined to comment on the sensitive document citing a pending procedure as its reason. The Administrative Council is due to decide on possible disciplinary action at one of its forthcoming meetings.

Merpel added: “This flagrant invasion of privacy comes in the wake of evidence that Mr. Battistelli has engaged a firm specialising in counter-surveillance and threat monitoring. Not because of any imminent terror threat, mind you: all this came about originally because it was suspected that an employee was circulating material alleged to be defamatory. One cannot help thinking in terms of the old cliche about using a sledgehammer to crack a mouse.”

“Merpel, who has grown rather tired of appealing to the Administrative Council members to hold the EPO management to the same governance standards as would be required in their own national Patent Offices and civil services, wonders if this latest news will convince some of those on the fence that a more robust approach is required when they next attend an AC meeting at the EPO.”

Our own remarks on it can be found in our prior article about it. █

Update (15/6/2015): There are now more translations, including in additional languages, namely French and Dutch [PDF].

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Microsoft’s Government Stranglehold Collapsing: As Expected, British Government Departments (Tax Authorities First) Dump Microsoft, Will Likely Embrace ODF; India and Sweden Likewise

Posted in Asia, Europe, Free/Libre Software, Microsoft, OpenDocument at 3:08 pm by Dr. Roy Schestowitz

Digital sovereignty gradually being restored

Summary: Despite Microsoft blackmail of British politicians, HM Revenues and Customs (HMRC) moves to Google’s ODF-supporting office suite, dumping Microsoft’s biggest cash cow and notorious lock-in; India and Sweden too move in a positive direction with more Free software, despite Microsoft lobbying and bullying

THE BEGINNING OF this week has been great. It had lots to offer in terms of good news. It really started with a bang and hopefully it won’t end with a just a mere whimper.

Microsoft is evidently getting desperate in convincing people to sign its horrible deals (because fewer are willing to sign these) and it is losing some very major clients right now, including governments in wealthy and/or large countries. It’s not some home users and a company or two. It’s now a growing trend, including the world’s second population (by size) and the world’s biggest empire ever, in addition to a top GDP/capita economy. There are literally billions of dollars at stake.

Microsoft is still actively trying to derail Free/Open Source software (FOSS) in voting systems in the United States and it often gets away with it because it has plenty of influence in the United States government. Controlling the voting system and bribing political candidates (as it does, even personally) ensures interference in elections and thus government decisions regarding IT procurement. We are still seeing it in this new article from IDG, stating: “Microsoft’s new system not only provides for easy transmission of election results, but it also allows party administrators to view results as they come in and will automatically identify potential problem areas. Election officials can then contact the precinct representative to clear anything up. It also means that tech experts will be lending their security know-how to the process, which is a good sign since the Iowa Democrats’ press release announcing the system included spammy advertisements Friday for discount pharmaceuticals.”

We recently showed how Microsoft interfered not only in voting but was seemingly inserting anti-FOSS provisions into the law, via ‘trade’ agreements. Now our suspicions are further defended, seeing articles like “Revealed Emails Show How Industry Lobbyists Basically Wrote The TPP”. This shows sick jokes, bribery, government capture, and how corporations (through their lobbyists) are writing the law. “One for Techrights stories,” wrote a reader to us regarding this news from TechDirt, summarising it with “How Industry Lobbyists Basically Wrote The TPP”.

“Watch has a full writeup showing how industry lobbyists influenced the TPP agreement,” he wrote, “to the point that one is even openly celebrating that the USTR version copied his own text word for word.”

Here is the direct quote: “Hi Barbara – John sent through a link to the P4 agreement. I have taken a quick look at the rules of origin. Someone owes USTR a royalty payment – these are our rules. They will need some tweaking but will likely not need major surgery. This is a very pleasant surprise. I will study more closely over the weekend.”’

TechDirt recalled: “Back in 2013, we wrote about a FOIA lawsuit that was filed by William New at IP Watch. After trying to find out more information on the TPP by filing Freedom of Information Act (FOIA) requests, and being told that they were classified as “national security information” (no, seriously), New teamed up with Yale’s Media Freedom and Information Access Clinic to sue. As part of that lawsuit, the USTR has now released a bunch of internal emails concerning TPP negotiations, and IP Watch has a full writeup showing how industry lobbyists influenced the TPP agreement, to the point that one is even openly celebrating that the USTR version copied his own text word for word.”

“We recently showed how Microsoft interfered not only in voting but was seemingly inserting anti-FOSS provisions into the law, via ‘trade’ agreements.”Here is the original article. “Leaked TPP emails talks about software patentability,” Benjamin Henrion (FFII) noted about it.

To quote IP Watch: “While a full range of stakeholders would be affected by the outcome of the Trans-Pacific Partnership (TPP) agreement under secret negotiation by the United States and a dozen trading partners, corporate representatives have had a special seat at the negotiating table, as shown by hundreds of pages of confidential emails from the US Trade Representative’s office obtained by Intellectual Property Watch. The emails give a rare and fascinating perspective on how policy is developed in the trade office.

“Years into the negotiation, the TPP is said to be nearing completion and is the subject of a US congressional debate over renewal of fast-track negotiating authority for the president (limiting Congress to a yes or no vote). But the TPP text has never been made available to the public of the countries negotiating it, except through periodic leaks of parts of the text, making these emails timely for the debate.

“Through a US Freedom of Information Act request, Intellectual Property Watch has obtained some 400 pages of email traffic between USTR officials and industry advisors. Most of the content of the emails is redacted (blacked out), but they still give insight into the process.”

“The emails give a rare and fascinating perspective on how policy is developed in the trade office.”
      –IP WatchThis is significant because we recently found out about anti-FOSS parts in these agreements, likely to have been the result of lobbying by Microsoft or the likes of it. If so-called ‘trade’ agreements pass with the anti-FOSS sections and ISDS, then Microsoft can sue ones like the Indian government for choosing FOSS as a matter of policy. There is a lot of Microsoft lobbying in India, objecting specifically to this [1, 2, 3], but how about lobbying around trade agreements? Wouldn’t that be clever? It would demolish FOSS globally in one fell swoop, as long as corruptible politicians remain quiet enough and citizens are therefore too ignorant to prevent the signing of nasty (but secret) agreements.

India’s move to FOSS, or the increasing embrace of FOSS (with a FOSS-leaning procurement policy) was covered by Red Hat’s OpenSource.com the other day, noting: “The Government of India has implemented a remarkable new policy-level change for open source software (OSS) deployment. The Ministry of Communication and Information Technology has asked that open source software-based applications be included in Requests for Proposals (RFPs) for all new procurements. Note there is not a plan at this time to replace existing proprietary systems with open source software.”

This is still going on while Microsoft fights back viciously. If the aforementioned ‘trade’ agreements pass, Microsoft might even be able to sue the government, not for discrimination but for not obeying so-called ‘trade’ laws (newly-introduced). It’s a back door trick, negotiated behind closed doors.

Here in the UK the government is now in a good position to move to GNU/Linux, despite Microsoft's blackmail of British politicians. Dependence on Windows is already being reduced because, according to this article, “HMRC ditches Microsoft in favour of Google Apps”. To quote some relevant bits:

HM Revenues and Customs (HMRC) has become the first major government department to dump Microsoft in favour of Google.

The Register reported that 70,000 HMRC staff will adopt Google’s cloud-based productivity apps over Microsoft’s Office 365 offering, joining 20,000 government employees who already use Google’s Gmail service.

HMRC has since confirmed the move in a statement. A spokesperson said: “HMRC has an ambitious digital future planned. This contract will make it easier for staff to collaborate on internal documents, providing greater flexibility and efficiency while reducing costs.

HM Revenues and Customs (British tax) dumping Microsoft is huge news; blackmailing politicians didn’t work out and one wonder if there are more government offices poised to follow suit. Surely they’ll watch how HMRC gets along. It has become abundantly clear that Microsoft is so scared/worried about FOSS and ODF (also Google) in the UK that it’s willing to blackmail or bribe.

Meanwhile, as revealed by Andy Updegrove, Sweden follows the UK government’s footsteps by choosing standards, including ODF. This is why Microsoft was so scared and then became aggressive over the decision that might later spread to the rest of Europe. One might wonder about Swedish politicians who led to this; will Microsoft blackmail them too?

“While the current list of approved standards in Sweden is short,” wrote Updegrove, “it does (as in the U.K.) include the ISO standard PDF/A-1, for uneditable documents, and OASIS’s ODF 1.2, for editable text. The ODF standard (adopted in an earlier version by ISO in 2004) was the subject of perhaps the most vigorously fought standards war of the last 20 years, raging on a global basis for several years. The contest was sparked by the decision of the Commowealth of Massachusetts to approve ODF, but not Microsoft’s competing XML-based standard, referred to as OOXML. That standard was also adopted by ISO, following Microsoft’s contribution of the original text to another standards body, called ECMA.

“Massachusetts ultimately adopted OOXML as well as ODF after severe lobbying pressure. Since then, the question of whether ODF, OOXML or both meets with the approval of cities, states and nations making such determinations has continued to be a contentious and closely watched matter.

“For this reason, it will be interesting to see whether additional EU countries follow the lead of the U.K. and Sweden.”

Scandinavia as a whole (not just Sweden it seems) is ‘plotting’/’scheming’ (to use negative terms) to embrace standards and dump proprietary blobs. North Europe seems to be eager to emancipate itself from NSA-leaning, Empire-serving blobs. There is a shift to FOSS, fostering local jobs and improving trust (no back doors from across the Atlantic). Open standards, suffice to say, tend to lead to FOSS. █

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EPO Surveillance, Threats, and Patronisation of Dutch Legal System Covered in Dutch Article From De Volkskrant

Posted in Europe, Patents at 2:01 pm by Dr. Roy Schestowitz

Summary: Another European article covering the spying scandal at the EPO, adding new bits of information about the practice

IN our previous post we mentioned an article from De Volkskrant, for which a translation had been provided. We present it below in full; it’s intended for future reference and permanent record. Among the topics covered is the Hague ruling which we recalled earlier today.

Benoît Battistelli (r.) in 2011, presenting a certificate to Siemens’ CEO. © EPA

Patent agency hires detectives to investigate own staff

The European Patent Organisation (EPOrg) in Rijswijk has hired a controversial British agency to investigate staff representing unions. According to employees, the investigations are the latest weapon to be added to EPOrg president Benoît Battistelli’s reign of terror.

By: Anneke Stoffelen. 5 June 2015, 02:00

The EPOrg has five offices and evaluates and issues European patents for all imaginable products. The Rijswijk office has 2,700 highly educated employees from all over Europe.

A conflict has been mounting between employees and the top of the organisation for a while now. EPOrg president Benoît Battistelli has been implementing changes to labour conditions without employees having any say. Anyone offering criticism may expect to suffer reprisals.

Human rights violation

In March, EPOrg employees told de Volkskrant how a system administrator who forwarded a union e-mail to colleagues was removed from his desk by security guards and taken outside.

In February, The Hague Court of Appeal judged that the EPOrg violates human rights as it thwarts access to unions. The EPOrg pays no attention to the decree and as an international organisation, claims its judicial immunity.

For the same reason, the Ministry of Justice has likewise dismissed the Court of Appeal’s decree. The government also has a financial interest in making it easy on the EPOrg: the Rijswijk office yields the Dutch economy an estimated €855 million per year.

Investigation

The EPOrg has hired British agency Control Risks to investigate its own staff. An EPOrg spokesperson has stated that Control Risks has only been flown in for extra support, as its internal investigative unit cannot handle the workload alone.

But according to lawyer Liesbeth Zegveld of the EPO’s staff union SUEPO, systematic investigations are being carried out on employees known to be active within unions or those who have been chosen as staff representatives. The Rijswijk office has multiple cases at the moment.

An employee who wishes to remain anonymous says the Control Risks investigation is only intended to gather information with which to either fire critical colleagues or to drive them to the desperate point of resigning.

These claims were denied by the EPOrg spokesperson: ‘I cannot make any statements on individual cases. But in general, employees are only investigated after a report of misconduct, in cases of suspicions of fraud or intimidation, for example.’

A few years ago, Control Risks garnered attention in Germany when Deutsche Telekom hired the company to spy on a journalist. Deutsche Telekom’s top management wanted to find out which employee was leaking confidential information to the press.

SUEPO fears that a similar situation is going on at the EPOrg. A Rijswijk employee shows us a warning he received this week from his mail server stating that his private account was accessed by an unfamiliar person. ‘I can’t prove that this has anything to do with the EPOrg, but I am quite concerned.’

Read that last paragraph again. Sounds like the work of a cracker or a government-employed cracker (which is the same but more “professional”, often shielded by Orwellian NDAs). The EPO sure has gotten itself into more of a scandal. It’s clear for all to see who has the moral high ground here. █

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European Patent Office (EPO) Now Uses Keyloggers to Spy on Staff

Posted in Europe, Patents at 1:37 pm by Dr. Roy Schestowitz

Summary: Having contracted the crackers-connected Control Risks Group (CRG), EPO starts acting like a cybercrime gang, adopting similar tools

THE management of the European Patent Office has become truly militarised, complete with spy connections. It is not just censoring E-mail anymore (an earlier effort to suppress the staff, as we recalled the other day), it is actually spying on E-mail contents and on keystrokes too. They are behaving like a bunch of crackers, much like the GCHQ and the NSA.

“EPO keyloggers, like any keyloggers for that matter, are so nasty that if you are not rich and powerful you can get sent to prison over it.”The managers at the EPO must not be technical and they don’t seem to have grasped the Streisand Effect. EPO keyloggers, like any keyloggers for that matter, are so nasty that if you are not rich and powerful you can get sent to prison over it. This whole affair is quickly becoming reminiscent of the CIA’s cracking of Senate PCs (Windows) in order to derail the Senate’s study of the CIA’s torture abuses. It is similar because this never led to any punishment. It is wrongly assumed by people in suits that they are magically above the law.

EPO management must be scared and “things are getting out of hand there,” to quote one who attended EPO protests. We know that the EPO uses keyloggers because right now the German mediawrites about it. We don’t have an English transslation yet, but to quote the original (in German): “In der kommenden Woche wird der Präsident des Europäischen Patentamtes (Epa) nach Brüssel reisen. Dort empfängt ihn der Rechtsausschuss der Europaparlamentarier zu einem “Austausch von Ansichten”, so heißt es auf der Tagesordnung. Benoît Battistelli soll über neueste Entwicklungen im Patentrecht sprechen, über die neuen Patentgerichte und manch andere Reform.

“An Gesprächsstoff über rechtliche Fragen dürfte es aber auch angesichts der andauernden Krise zwischen Battistelli und vielen der etwa 7000 Mitarbeitern in München, Berlin, Wien und Den Haag nicht mangeln. Seit Battistelli ein umfangreiches Reformwerk in Gang gesetzt hat, das unter anderem das Beförderungssystem umkrempelt, gibt es vehemente Auseinandersetzungen. Nun kommt ein neues heikles Thema hinzu: mutmaßliche heimliche Überwachung. Denn einem internen Schreiben zufolge, das der SZ vorliegt, wurden Ende vergangenen Jahres am Epa öffentlich zugängliche Computer ausgespäht: mit Kameras und mit sogenannten Keyloggern. Damit lässt sich das aufzeichnen, was der Benutzer schreibt, welche Seiten er ansteuert und wie er kommuniziert.”

Well, it only gets worse, doesn’t it? The more EPO management tries to suppress and prevent a crisis, the more irrational moves it makes and the more of a crisis it leads to.

More spying in EPO (using Control Risks) is being reported in De Volkskrant. SUEPO has translations [PDF] and says that the paper “reports on the information that the EPO has commissioned the company Control Risks to investigate elected representatives of the Staff Committee and/or Staff Union.”

Control Risks and the EPO are wasting their time (and European taxpayers’ money) on witch-hunting. I myself do not know my sources, so unless something revealing or self-incriminating is done, there ought to be no way for these government-connected spies to get a clue. Can we ever reveal our sources? No, because we ourselves don’t know them. The Control Risks contract is total waste of taxpayers’ money and it’s a shame that the EPO hired this firm. Will it show up in the financial reports of the EPO? What will the public say and what will EPO management have to show for it?

Control Risks’ involvement is a huge abomination because, as we showed this morning, it is likely that the British firm is connected (through staff) to some folks in GCHQ. Does the EPO really wants its name and brand associated with notorious crackers (whom British courts found to be in violation of British law)? There’s no risk that surveillance through Google et al. would reveal IP addresses, even if sources don’t use Tor. Wait and watch how the EPO has no positive outcome, only a big budget drain and a stain on its name.

“If you look at the public Internet site of SUEPO,” wrote one reader to us, “you can find an “Open Letter to Control Risks” [as we covered before]. On that basis, the information that Control Risks is involved is now in the public domain.” Well, EPO staff has already acknowledged this and we know which department reached out to these military-connected spies (John Martin's). This ought to give enough reasons for staff to stage another protest at the British Consulate, and this time with no qualm or reluctance. The British military establishment is now at (a secret) war against EPO staff. █

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When the European Patent Office Lost in Court and Refused to Obey the Law: An Analysis

Posted in Courtroom, Europe, Law, Patents at 6:58 am by Dr. Roy Schestowitz

Battistelli isn’t Napoleon

Summary: Recalling the ruling which the EPO simply refused to accept, leading to heavy political backlash that is now mostly forgotten

THE EPO scandals reached a peak point when the ‘President’ of the EPO arrogantly expressed no intent to obey the rule of law. He snubbed a court order against him, whereupon he and his apologists came under fire from Dutch politicians belonging to various political parties. Apparently the Hague (where the ruling was made) takes justice pretty seriously, whereas Mr. Battistelli views himself as above the law, immune from German law and by extension European law. “EPOnia” is what some people in IP Kat jokingly call this ‘magic’ jurisdiction (virtually immune or exempted from the rule of law, where only one man, the Napoleonic Battistelli, has the last word).

“THE EPO scandals reached a peak point when the ‘President’ of the EPO arrogantly expressed no intent to obey the rule of law.”SUEPO has just said that “Nederlands Juristenblad, a Dutch legal magazine, published an article about the judgment of the Dutch Court of Appeal in the case SUEPO v EPO.” There is already a collection of translations [PDF], so we decided to manually turn into HTML the English translation. Here it is in full:

Nederlands Juristenblad – 08.05.2015

English translation

Fundamental labour rights and immunity

The case against the European Patent Organisation (EPO)

Cedric Ryngaert & Frans Pennings¹

The Court of Appeal in The Hague has created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case, and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction not only erodes the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation adequately protects fundamental rights.

Introduction
In preliminary relief proceedings on 17 February 2015 the Court of Appeal in The Hague declared itself competent to give an opinion on the merits in the case against the European Patent Organisation (EPO)² brought by two trade unions. This organisation is charged with implementing the European Patent Convention (EPC). The EPO is not an agency of the European Union; even states that are not members of the European Union are member states of the EPO. It is therefore an independent intergovernmental organisation that has a secondary office in Rijswijk. The Court was of the opinion that the EPO was not entitled to any immunity from jurisdiction in this case, in spite of the relevant stipulations in the headquarters agreement between the organisation and the Netherlands, because the unions were unable to bring their claim before any arbitration body.³ The Court consequently deemed the restrictions the EPO

_______________
Authors
¹ Prof. Dr. C.M.J. Ryngaart and Prof. Mr. F. Pennings are Professors of international law and social law respectively, at the University of Utrecht
Notes
² Court of Appeal in The Hague, 17 February 2015, ECLI:NL: GHDHA: 2015:255. The EPO has its head office in Munich.
³ Art. 3, par. 1. Protocol in respect of the privileges and immunities of the EPO; Art. 8 of the Convention in respect of the Granting of European Patents, this is the Convention established by the EPO.

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had imposed on trade union formation and communication, and on the right to strike, a violation of fundamental collective labour rights. It ordered the EPO to grant the trade unions unrestricted access to the internal e-mail system of the EPO and to allow them to attend collective negotiations, and prohibited the organisation from applying the stipulations in its employment rules and regulations that restrict the right to strike. However, the Minister for Security and Justice ultimately instructed the bailiff not to enforce the Court’s decision, because such enforcement would mean a violation of the immunity from enforcement protected by international law.

After an overview of (1.) the history prior to the decision of the Court we use this contribution to critically reflect on (2.) the non-granting of immunity from jurisdiction to the EPO pursuant to the right to access to the courts as documented in Article 6 of the ECHR; (3.) the evaluation of the conduct of the EPO in relation to collective actions against the principles of international labour law; and (4.) the Minister’s instruction to not enforce the decision. Our perspective is based on international law on the one hand (par. 2 and 4) and on labour law on the other hand (par. 3).

1. History
It is not the first time that the EPO has been summoned to appear before a Dutch court in relation to a labour law dispute, and that the court had to decide on the EPO’s immunity from jurisdiction. An individual employee, Bertrand, had previously started proceedings against the EPO. In that particular case the Supreme Court judged in 2009 that individual labour disputes relate to the activities of the organisation; based on the criterion of functional necessity such disputes are therefore, in principle, subject to immunity from jurisdiction.⁴ However, the Supreme Court also stated that this immunity applied only insofar as the EPO provided alternative procedures that gave legal protection in accordance with Article 6 of the ECHR. This is an application of a principle as documented in 1999 by the European Court for Human Rights (ECHR) in the Waite and Kennedy and Beer and Regan cases: the admissibility of the granting of immunity from jurisdiction to an international organisation is dependent on the availability of an alternative that effectively protects the individual’s right to access to the courts.⁵ The Supreme Court was of the opinion that this legal protection was in fact being provided because individual employees of the EPO had access to a jurisdictional procedure before the International Labour Organisation Administrative Organisation (ILOAT), even if they were not entitled to a public hearing.⁶

_______________
⁴ Supreme Court 23 October 2009, ECLI:NL:PHR:2009:BI9632, legal ground 3.3 (ratification of ruling by the Court of Appeal in The Hague, 28 September 2007, ECLI:NL:GHSGR: 2007:BB5865).
⁵ ECHR, application number 26083/94 (Waite and Kennedy vs Germany); ECHR 18 February 1999, application number 28934/95 (Beer and Regan vs. Germany, legal ground 68 (“For the Court, a material factor in determining whether granting [the European Space Agency] immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them a reasonable alternative means to protect efficiently their rights under [Article 6 of] the Convention.”)
⁶ The Supreme Court ruled that it had not been proven or made evident that the Court would reject substantiated requests for a public hearing – even if public hearings rarely ever occurred in practice. HR 23 October 2009, ECLI:NL:PHR: 2009:BI9632, legal ground 3.5

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However, neither the Administrative Organisation nor any other international dispute settlement mechanism has any jurisdiction with respect to collective labour law matters between EPO and its organised grouping of employees. After the EPO had restricted the right to strike and had blocked collective negotiations it was therefore only a matter of time before the trade unions of the EPO employees (VEOB and SUEPO) would bring proceedings before the Dutch courts: in 2013 these trade unions, referring, among other things to Article 6 of the ECHR, asked the District Court of The Hague to order the EPO to stop violating the right to strike and the right of collective bargaining; they claimed an urgent interest.

On 14 January 2014 the District Court of The Hague, in preliminary relief proceedings, made a judgement rejecting the immunity of the EPO because the trade unions did not have alternative legal means available that would effectively guarantee their right to have access to the courts within the meaning of Article 6.⁷ However, at the same time the Court stated that granting (part of) the claims could result in fragmentation of the Patent Organisation, in the sense that in the Netherlands different regulations must be applied than in other participating member states; according to the Court the essence of the immunity would therefore be affected, contrary to the immunity stipulation in the Convention in respect of the granting of European patents (Article 8 of the EPC), which guarantees the functioning of the Patent Organisation as a whole, including the application of organisation-wide and uniform regulations.⁸ The Court subsequently stated that the trade unions would have to take their claims to the central organisation of the EPO.⁹ Consequently, the District Court of The Hague first rejected the immunity of the EPO pursuant to incompatibility with Article 6 of the ECHR, and subsequently did confirm it based on the principle of functional necessity. The reasoning of the Court was not very convincing, and the trade unions therefore appealed to the Court of Appeal in The Hague.

In its ruling of 17 February 2015 the Court of Appeal in The Hague recognised the internal contradiction in the reasoning of the District Court of The Hague

2. EPO’s immunity from jurisdiction: a critical interpretation of the ruling of the Court of Appeal in The Hague
In its ruling of 17 February 2015 the Court of Appeal in The Hague recognised the internal contradiction in the reasoning of the District Court of The Hague; it stated that the trade unions did not intend the ‘fragmentation’ the Court was concerned about, even though the measures they appealed against were adopted for the entire organisation. With this statement the Court appeared to reject the argument that the absolute immunity, as documented in Article 3 of the Protocol in respect of Privileges and Immunities of the EPO,¹⁰ is functionally necessary for an

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⁷ District Court of The Hague 14 January 2014, ECLI:NL:RBDHA: 2014:420.
⁸ Ibid legal ground 3.11.
⁹ Ibid.
¹⁰ Protocol in respect of Privileges and Immunities associated with the Convention in respect of the Granting of European patents of 5 October 1973, Treaty Series 1976, 101.

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international organisation like the EPO to exercise its powers, at least insofar as there are no cases before courts in other states.¹¹

If the immunity of the EPO is not absolute but only relative, the question obviously arises how relative it is, and particularly: under what conditions can the EPO’s immunity from jurisdiction still be compatible with the right to access to the courts as guaranteed by Article 6 of the ECHR.

This compatibility assessment had come under some pressure in the Netherlands in the Mothers of Srebrenica case. In this case the ECHR had approved the granting of immunity to the United Nations in 2013, even though the UN had not provided alternative legal protection. Nonetheless, it was obvious right from the start that this decision did not have a general scope but only applied to the UN in view of its special status as a collective security organisation.¹² In a recent labour law immunity case relating to the EPO itself (Klausecker v. Germany, 2015), the ECHR once again confirmed the Waite and Kennedy requirement that international organisations must, in principle, provide alternative legal protection¹³; in this case the EPO had met this requirement by suggesting an arbitration procedure for the complainant – a man who was not being hired because he did not meet the physical requirements needed for the job.¹⁴

However, none of this means that the absence of alternative legal protection per se necessarily leads to the rejection of the immunity of the organisation. After all, in Waite and Kennedy the ECHR determined that the availability of an alternative is only a ‘material factor’.¹⁵ In that sense the Court of Appeal in the case in question was of the opinion that the absence of an alternative judicial process, in combination with the granting of immunity, does not ipso facto lead to a violation of Article 6 of the ECHR.¹⁶ According to the Court such a violation only occurs in the case of ‘additional circumstances’, in particular the systematic and far-reaching violation of the fundamental principles of the democratic state under the rule of law.¹⁷ However, this restrictive interpretation of the protection supposedly offered by Article 6 of the ECHR is not supported by the jurisprudence of the ECHR. After all, Klausecker already shows that, at least in labour law cases, the presence of an alternative is conclusive if the organisation wishes to invoke immunity¹⁸, without the ECHR having imposed qualitative requirements in the case in question with respect to the nature of the underlying violation the organisation has allegedly committed. For that matter, in the light of the accountability of international organisations the availability of a

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¹¹ In this case one of the trade unions had in fact initiated legal proceedings in Germany, but it was a main action rather than preliminarily relief proceedings. If both court cases had been of the same nature one of the cases could have been deferred.
Compare Court of Appeal The Hague 2015 (EPO), legal ground 4.5. However, this deferment arises from the doctrine of lis pendens rather than the principle of functionally necessity informed immunity.
¹² ECHR 11 June 2013, application number 65542/12 (mothers of Srebrenica vs. the Netherlands), legal ground 152,
154.
¹³ ECHR, 6 January 2015, application number 415/07 (Klausecker vs. Germany), legal ground 64
¹⁴Ibid., legal ground 76
¹⁵ ECHR, (Waite and Kennedy vs Germany), legal ground 68
¹⁶ The Court refers to legal ground 164 of ECHR 2013, (Mothers of Srebrenica), (Court of Appeal The Hague 2015,(EPO), legal ground 3.4), although this consideration of the ECHR apparently only related to the special position of the United Nations
¹⁷ Court of Appeal The Hague 2015, (EPO), legal ground 3.10
¹⁸ ECHR, (Klausecker), paragraph 69 (‘Having regard to the importance in a democratic society of the right to a fair trial, of which the right of access to court is an essential aspect, the Court therefore considers it decisive whether the applicant had available to him reasonable alternative means to protect effectively his rights under the Convention.’).

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judicial process for every possible dispute between an individual or association and an international organisation is highly advisable.

Whatever the case may be, the Court of Appeal did in fact qualify the alleged violations of the right to strike and the right to collective bargaining as violations of fundamental rights (see also below – par. 3).¹⁹ Furthermore, in the opinion of the Court, the legal protection offered by the EPO with respect to potential violations of the right to collective action and bargaining was ‘manifestly deficient’, as the procedure for ILOAT is reserved for individual employees (see above)²⁰, and because the EPO had not provided its own judicial process to guarantee collective labour rights.²¹ It is not entirely clear whether procedures that are ‘deficient’ but not ‘manifestly deficient’ do meet the requirements of article 6 of the ECHR. The ‘manifestly deficient’ standard does in any case not originate in the jurisprudence of the ECHR with respect to the immunity of international organisations, but in the jurisprudence relating to the liability of member states for the unlawful acts of international organisations.²² Furthermore, in this latest jurisprudence the ECHR primarily uses the requirement of ‘equivalent protection’; the ‘manifestly deficient’ standard is, in principle, only used to hold the member state liable for the actions of the organisation if the legal protection offered by the organisation in a concrete case is truly inadequate, even if the organisation generally provides ‘equivalent’ protection.²³ By upgrading the relevance of the ‘manifestly deficient’ standard the Court appears to imply that only in cases of serious shortcomings there is a violation of article 6 of the ECHR, although the standard of equivalence does require that the legal protection provided by the proposed procedures must, although not necessarily identical to the protection provided by national legal procedures, at least be of a sufficiently high level and therefore definitely not deficient.²⁴ Once again, whatever the case may be, the Court found the legal protection procedures relating to collective action offered – and especially not offered -by the EPO to be ‘manifestly deficient’, and subsequently considered the appeal for immunity on the part of the EPO with respect to these prima facie claims in the absence of any judicial process a disproportional restriction of the right to access to the courts documented in Article 6 of the ECHR.²⁵

It is interesting in this context that the Court discovered a norm conflict between the Protocol regarding the Privileges and Immunities of the EPO and the ECHR, and was of the opinion that

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¹⁹ Court of Appeal The Hague 2015, (EPO), legal grounds 3.7 and 3.10.
²⁰ Ibid., legal ground 3.8
²¹ Ibid., legal ground 3.9
²² ECHR 30 June 2005, application number 45036/98 (Bosphorus vs. Ireland). The Court also cites this case in legal ground 3.6.
²³ ECHR, (Bosphorus), legal ground 155-156
²⁴ This is not in any way an academic discussion. One can imagine that an international organisation, other than the EPO, which is not provided any legal access, would still make a rudimentary dispute settlement system with respect to collective action claims available. It is quite possible that such a system is not ‘manifestly deficient’, even if it only provides relatively limited legal protection. In an extreme interpretation even the mere existence of a dispute settlement mechanism meets the guarantees provided by Article 6 of the ECHR, irrespective of the exact procedures used by this mechanism. For a particularly ‘light touch’ assessment of the compatibility of the procedures of the Appeals Board for NATO employees with article 6 of the ECHR see also: ECHR 5 March 2013, application number 39619/06 (Chapman vs. Belgium), (only available in French).
²⁵ Court of Appeal The Hague 2015, (EPO), legal ground 3.10

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the latter instrument took priority.²⁶ However, the question on exactly which grounds the ECHR has priority over the Protocol remains unanswered. After all, both instruments are Conventions that the Netherlands is bound by, and there is no fundamental hierarchy between individual Conventions. By propounding this hierarchy regardless – Human Rights Conventions can suspend stipulations from other Conventions – the Court of Appeal creates the impression that the Netherlands has committed an internationally unlawful act by signing, or at least maintaining, the aforementioned Protocol. In this context it is perhaps better to talk about the ‘balancing of standards’²⁷, for which purpose Article 6 of the ECHR, and particularly the interpretation given to this Article by the ECHR, provides information on the scope of Article 3 of the Protocol.²⁸

3. The case considered in the light of international labour law
After the Court of Appeal had rejected the immunity of the EPO it granted a number of claims of the trade unions. Although the trade unions had based their claims on various international Conventions the Court – with one exception (see below) – did not include these in its review. However, those references to international Conventions and principles are useful, as they serve not only as essential criteria for the functioning of the EPO, but can also provide an extra argument to reject the invocation of immunity (see above – par. 2). An important source is the Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Organisation during the conference on 18 June 1998, which stipulates that all member states, even if they have not ratified the Conventions in question, have an obligation to respect, promote and realise the principles relating to fundamental rights that are the subject of the Conventions in question, including freedom of association and the active recognition of the right to collective bargaining, in good faith and in line with the constitution of the International Labour Organisation (ILO) (italics added by authors).²⁹ This means that the right to trade union organisation is a very fundamental right that no ILO member state can evade. Therefore, the states that have established the EPO, and consequently the intergovernmental organisations they have founded, are also bound by these principles. In view of the fundamental character of the right in question it is not permissible for the EPO to invoke its immunity. With their initial claim the trade unions asked that the ability to make unobstructed use of internal e-mail facilities to enable them to communicate with EPO employees in relation to trade union-related matters be restored to them. The Declaration on Fundamental Rights, which is

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²⁶ Ibid. legal ground 3.11
²⁷ In that sense see Court of Cassation (Belgium), case no. C07 0407F (Lutchmaya vs. General Secretariat of the ACP), International Law in Domestic Courts, OUP, 1576 BE 2009, legal grounds 30 and 32, in which the Court indicates that the application of Article 6 of the ECHR in immunity cases against international organisations comes down to balancing two standards, and that Belgium did not commit an unlawful act by joining the instrument that provides immunity (the headquarters agreement).
²⁸ Inspiration may be drawn from Article 31 (3)(c) of the Vienna Convention on Treaties (1969), which stipulates that in the interpretation of a Treaty ‘every relevant rule of international law that can be applied to the relationships between the parties’ must be taken into consideration. In that sense Article 6 of the ECHR must be taken into consideration in the interpretation of Article 3 of the Protocol in respect of the Privileges and Immunities of the EPO.
²⁹ Art. 2 of the ILO Declaration on Fundamental Principles and Rights at Work, adopted during the International Labour Conference during its 86th meeting, Geneva 18 June 1998 (www.ilo.org)

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elaborated further in Conventions 87 and 98, requires freedom of association and the active recognition of the right to collective bargaining. Article 11 of the ECHR also constitutes a
fundamental right; this Article stipulates the right of association and the right to establish trade unions. Accordingly, these principles and stipulations give trade unions the right to perform their tasks, which include communicating with members and non-members, as the freedom of collective industrial organisation becomes illusory without this possibility. However, the Court does not refer to these stipulations, but, in concurrence with them, does consider that it is in the nature of the activities of trade unions that they are allowed to criticise (the representatives of) employers, also via the internal communication channels.³⁰

The right to trade union organisation is a very fundamental right that no ILO member state can evade

A number of other claims related to the right to strike. The first related to Article 30a of the Employment Rules and Regulations. Although these Rules and Regulations give all employees the right to strike, they define striking as an interruption of the work during a certain period related to the employment conditions. The Rules and Regulations stipulate that the President of the branch can lay down further stipulations and conditions for the application of this Article, and among other things these must stipulate the maximum duration of the strike.

The question arose whether these conditions are compatible with the right to strike. With respect to the European Council this right to strike is documented in Article 6, paragraph 4, of the European Social Charter (ESH). With the exception of the situations documented in the Charter, only restrictions that are prescribed by law and are necessary in a democratic society to protect the rights and freedoms of others and to protect the public order, national safety, public health or common decency can be imposed on the rights in this Charter (Article G of the ESH). The stipulation that the President can determine the duration of the strike goes far beyond that which is permitted by Article G. Without referring to this stipulation the Court is also of the opinion that a strike of which the duration is not known in advance is wrongly rendered impossible.³¹ After all, the option to organise a strike of which the duration has not been determined in advance is an essential part of the right to strike, otherwise an important effect of this weapon would be lost.

The definition in the Employment Rules and Regulations also refers to an interruption of the work and according to the Court the trade unions justifiably objected to this as well. The Court is of the opinion that other forms of industrial action are also possible, such as go-slow actions.³² Article 6 of the ESH refers to collective actions, including strikes, so we feel that this standpoint is correct. The trade unions also asked that the stipulation in the Employment Rules and Regulations, to the effect that actions must relate to employment conditions, be declared unlawful, as the right to collective actions is not by definition limited to the employment

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³⁰ Court of Appeal The Hague, (EPO), 2015, legal ground 5.3
³¹ Court of Appeal The Hague, legal ground 5.7
³² Court of Appeal The Hague, legal ground 5.8

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conditions of employees. For example, it could also relate to the admission of a trade union into negotiations, safer working conditions, increased workers’ participation or the dismissal of employees. This also comes under Article 6, paragraph 4, of the ESH, which addresses collective actions in the event of conflicts of interests. These are distinguished from political conflicts; however, conflicts of interests are not limited to employment conditions.³³

Finally, the request to allow the trade unions into the negotiations and to oblige the EPO to consult about new collective negotiations was granted. In this context the Court did refer to an international stipulation, the aforementioned Article 11 of the ECHR, and particularly the Demir ruling of the ECHR, in which the ECHR ruled that ‘having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the “right to form and to join trade unions for the protection of [one’s] interests” set forth in Article 11 of the Convention, it being understood that States remain free to organise their system so as, if appropriate, to grant special status to representative trade unions’.³⁴ This means that civil servants cannot be excluded from this right either.

Within the confines of this article we can only briefly look at the relevant standards. However, it does become clear that the quoted standards are fundamental principles that the member states associated with the EPO, and therefore the organisations they have established, must endorse. Consequently the EPO must apply them in its activities. Furthermore, in view of the fundamental character of these rights the EPO cannot invoke its immunity in order not to have to defend itself on the basis of the merits with respect to claims made against it.

4. The Minister’s instruction – immunity from enforcement

Ultimately the ruling of the Court of Appeal appears to amount to a Pyrrhic victory

However, ultimately the ruling of the Court of Appeal appears to amount to a Pyrrhic victory for the unions. By letter of 19 February 2015 the EPO notified the Minister of Foreign Affairs that it had been served with the ruling with enforcement order. Consequently, on 23 February 2015, the Minister of Security and Justice instructed the bailiff that, pursuant to Article 3A, paragraphs 2 and 5, of the Bailiffs Act, the service as the enforcement measures instructed in the service conflict with the obligations of the Dutch State pursuant to international law and that their implementation must be refused.³⁵

This Article stipulates that the Minister can instruct a bailiff that an official act he has been ordered to perform, or has already performed, conflicts with the obligations of the State pursuant

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³³ See also Supreme Court 30 May 1986, Dutch Law Reports 1986/688, (NS ruling)
³⁴ ECHR 12 November 2008, application number 34503/97, (Demi rand Baykara vs. Turkey), legal ground 154
³⁵ Ministry of Security and Justice, Directorate General of Justice and Enforcement, Legal and Operational Affairs Department, Instruction ex Article 3a, paragraph 2, of the Bailiffs Act, 23 February 2015

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to international law. As a result of this instruction the bailiff is not authorised to perform the official act. To the extent that the act has already been performed it is void. In this instance the obligations pursuant to international law relate to the EPO’s immunity from enforcement. Pursuant to Article 1 of the Protocol in respect of the Privileges and Immunities of the EPO the office spaces of the European Patent Organisation in all the associated member states enjoy inviolability, and pursuant to Article 3, paragraph 2, properties and assets of the Organisation cannot be subjected to requisition, seizure, expropriation or attachment.

Article 3a of the Bailiffs Act combined with the aforementioned Protocol enables the Minister to not enforce judgements and rulings of the Dutch Courts and Courts of Appeal, insofar as they are made against internationally protected persons or entities, such as international organisations (e.g. the EPO), States, or diplomats. With respect to international organisations the Court of Appeal in The Hague has confirmed this practice in a decision from 2007 with respect to the Organisation for the Prohibition of Chemical Weapons (OPCW).³⁶ In this decision the Court implied that the literal meaning of a judgement in respect of the continued payment of wages conflicts with the principle of immunity from enforcement as documented in Article 4, paragraph 2, of the headquarters agreement between the Netherlands and the OPCW. The Court stated that, in principle, the immunity from enforcement is separate from any immunity from jurisdiction³⁷, and that the immunity from enforcement guarantees ‘that the goods and possessions of the OPCW can be used unhampered by any enforcement measure’.³⁸ A fortiori it may be said that imposing a penalty conflicts with the principle of the immunity from enforcement, even more so because a penalty can be imposed without further judicial review, as the Court of Appeal in the Hague decided in 2011 in another case against the EPO.³⁹

In view of the different nature and purpose of the immunity from jurisdiction and enforcement – which is also confirmed in the right of State immunity⁴⁰ – it is therefore possible that an international organisation does not enjoy immunity from jurisdiction but does enjoy immunity from enforcement. Certainly with respect to the right of State immunity it may happen that a State, in light of the many exemptions from the principle of immunity of jurisdiction⁴¹, may not enjoy immunity from jurisdiction but still enjoy immunity from enforcement, because the designation of the seized claims or goods is public.⁴² As there are fewer exemptions from immunity from jurisdiction of international organisations in place, relatively few judgements and

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³⁶ Court of Appeal The Hague 15 March 2007, ECLI:NL:GHSGR: 2007:BA2778
³⁷ Ibid. legal ground 4
³⁸ Ibid. legal ground 6
³⁹ Court of Appeal The Hague 21 June 2011, ECLI:NL:GHSGR: 201:BRO188
⁴⁰ Compare parts 2-3 to part 4 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, New York, 2 December 2004, UN doc. A/59/508. Although this Convention has not yet come into effect it is assumed that it largely reflects existing customary law. For a comprehensive commentary see: R. O’Keefe, C.J. Tams & A. Tzanakopoulos (ed.), The United Nations Convention on Jurisdictional Immunities of States and Their Property, A Commentary, Oxford University press, 2013
⁴¹ For the principles see Article 5 of the UN Convention (see footnote 40) and for the exemptions part 3.
⁴² For a recent District Court case see 9 September 2014, ECLI:NL:RBAMS: 2014: 6028, in which the Court, with respect to an enforcement procedure against Iraq, determines that ‘at this point it [can] not be determined with any degree of certainty which part of the attached claims has a public and which part has a non-public designation’ (legal ground 4.13).

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rulings are made against international organisations that are eligible for enforcement.⁴³ If enforcement is being considered it will, in principle, only be implemented if this has been provided for in the headquarters agreement between the Netherlands and the organisation in question; with regard to the EPO this is insofar as the international organisation has expressly waived its immunity, insofar as it concerns a civil suit in respect of accidents involving motor vehicles, or insofar the/an arbitral decision is being enforced.⁴⁴

However, the question arises whether the list of exemptions in the headquarters agreement is exhaustive, or whether the immunity from enforcement can also be evaluated against Article 6 of the ECHR. With respect to the EPO the Court of Appeal in the Hague did, after all, evaluate the rather absolutely worded immunity from enforcement of the organisation, as stipulated in Article 3 of the Protocol in respect of the Privileges and Immunities of the EPO (this is the same Article that also provides for the immunity from enforcement), against Article 6 of the ECHR. A lot can be said in favour of the dynamic interpretation of Article 3 of the Protocol – an interpretation in light of later evolutions in respect of the application of Article 6 of the ECHR at the level of the ECHR – also being applicable to the immunity from enforcement. In 2009 the Belgian Court of Cassation, for example, decided, in a labour law case against the ACP (an international organisation of African, Caribbean and Pacific States), that Article 6 of the ECHR also applies to enforcement procedures, and subsequently terminated the immunity of the organisation because it could not envision an alternative enforcement procedure that would protect the complainant’s right to remedy at law.⁴⁵ After all, any other decision would erode the effective protection offered by Article 6 of the ECHR, and would make it possible for Court decisions that reject the immunity of an international organisation to remain dead letters. From both a national and international constitutional point of view such an outcome would be undesirable.

Article 3a, paragraph 7, of the Bailiffs Act stipulates that the provisional relief judge can revoke the consequences of the instruction. If, in the EPO case or any future case, he evaluates the Minister’s instruction in the light of international law, it is indicated that this Court evaluation should not only relate to the stipulations of the headquarters agreement, but also of Article 6 of the ECHR. In practice this should result in the judgement or ruling of the judge who rejects the immunity from enforcement of the international organisation having to be enforced as well, unless the organisation proposes an alternative form of enforcement that nonetheless provides equivalent legal protection. It is not immediately evident which form of enforcement the EPO

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⁴³ However, see interim judgement District Court the Hague 15 February 2010, ECLI:NL:RBSGR:2010:BL 4892, which rejects immunity from jurisdiction of the EPO in a tendering case with respect to a catering facility run by the EPO, based on the consideration that a catering facility for employees does not manifestly contribute to the fulfilment of the specific tasks the organisation is charged with, and that immunity from jurisdiction is therefore not functionally necessary. However, the Court of Appeal in the Hague considered the penalty the court had imposed on the EPO to be in conflict with the organisation’s immunity from enforcement (see footnote 39)
⁴⁴ See Article 3, paragraph 1, (a-c) of the Protocol in respect of the Privileges and Immunities of the European Patent Organisation
⁴⁵ Court of Cassation (Belgium), case no. C07 0407F (Lutchmaya vs. General Secretariat of the ACP), International Law in Domestic Courts, OUP, 1576 BE 2009, legal ground 26-27 (with note by C Ryngaert). See also J. Wouters, C. Ryngaert & P. Schmitt, ‘, and Western European Union v. Siedler; General Secretariat of the ACP Group v. Lutchmaya; General Secretariat of the ACP Group v. B.D., American Journal of International Law, vol. 105, no. 3 July 2011, p. 560-567

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could suggest that is different from the form stipulated in the ruling of the Court of Appeal in The Hague (providing unrestricted access to the internal e-mail system of the EPO, the admission to collective negotiations, and the ban on applying the stipulations of the Employment Rules and Regulations that restrict the right to strike), and that would still do justice to the international labour law obligations the organisation is subject to.

5. Closing remarks
The Court of Appeal in The Hague created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction is regrettable. Not only does it erode the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either, contrary to what the Minister asserts: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation sufficiently protects fundamental rights.

To repeat the closing words, for those to whom the above is too long to follow: “The Court of Appeal in The Hague created an international precedent in the case against EPO by rejecting the immunity of an international organisation in a collective labour law case and also awarding the claims on their merits, based on the fact that the organisation in question violated fundamental human rights. This decision is important because it further institutionalises the accountability of international organisations. Unfortunately the Netherlands also showed itself at its most narrow-minded: the Minister instructed the bailiff to not enforce the judgement because the organisation enjoys immunity from enforcement under international law. This instruction is regrettable. Not only does it erode the separation of powers stipulated by the Constitution, it isn’t an obligation under international law either, contrary to what the Minister asserts: as is the case for immunity from jurisdiction, immunity from enforcement can only be granted if the organisation sufficiently protects fundamental rights.”

The minister who defended Battistelli ended up in a major scandal and is permanently out as a consequence of that. Is Battistelli too going to be out this year? We shall see… Battistelli has already threatened to resign. █

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EPO May be Creating Its Own Lawless NSA (or GCHQ) With Control Risks Group Deal

Posted in Europe, Patents at 6:26 am by Dr. Roy Schestowitz

Summary: The European Patent Office may be getting a lot more than people care to realise, for Control Risks Group (CRG) has very powerful connections in the United Kingdom

THE continued militarisation of the EPO's investigation unit serves to intimidate potential sources. It’s reign by fear, or by terror. It’s a fishing expedition against sources. Not only Benoît Battistelli (criticised by EU-hostile British politicians) but the British government too was trying to stop EPO protests (at the British Consulate) earlier this year by issuing a statement that IP Kat, a London-based blog, published at the end of February. Any Government Communications Headquarters (GCHQ) involvement could be excused by trying to frame protests as a “national security” issue while targeting of journalists by GCHQ, which goes a long way back, may go on. To cite just two articles from 2015:

• GCHQ captured emails of journalists from top international media
• New Snowden Leak Reveals GCHQ Collected Emails Of Journalists At NYT, WaPo, Guardian, BBC And Elsewhere

When the EPO signed a deal (or contract) with Control Risks Group it may as well bought access to intelligence agencies, via people who are privately-employed and mostly unaccountable (there is no oversight neither from the government nor the public). Private spies, who are like digital mercenaries, don’t obey rules because by definition they work secretly (no transparently), so hardly anyone would catch them even when the rules are flagrantly broken.

“For all we know, because Control Risks works with the Army, it probably has GCHQ contacts, hence it can use espionage capabilities versus journalism (an overkill for corporate goals).”For all we know, the British EPO manager who contracted Control Risks may have also gone with some of their staff to school, university, etc. Looking back at an article published a few days after the EPO protests were supposed to take place at the British Consulate, Context would not “confirm whether or not its employees included ex-GCHQ employees.”

Context is one among a small bunch of digital mercenaries in the UK; The same goes for Control Risks Group, which is mentioned as follows:

When asked whether the UK government might also be conducting cyber espionage on UK banks, Context declined to respond. It also declined to comment on FIPR’s statement about CBEST or to confirm whether or not its employees included ex-GCHQ employees.

The other three firms did not respond to the Bureau’s request for comment.

A further eight companies are accredited as providers of “threat intelligence”, including BAE Systems Applied Intelligence, Control Risks Group, Digital Shadows and Mandiant.

“BAE Systems Applied Intelligence, Control Risks Group, Digital Shadows and Mandiant” are mentioned by name. For all we know, because Control Risks works with the Army, it probably has GCHQ contacts, hence it can use espionage capabilities versus journalism (an overkill for corporate goals). The EPO does not need to acquire NSA-like powers of its own. It just needs to sign contracts with Control Risks et al. and since GCHQ known or even renowned for targeting journalists (Edward Snowden says GCHQ is worse than the NSA), it is possible that they will silently help Control Risks — and by extension — the EPO. Control Risks is trying to identify our sources. They’re attacking journalists as though they’re terrorists. Looking at the 2003 book “Global Intelligence: The World’s Secret Services Today“, we find that “a network of private consultancies — Control Risks, Sandline, the Hakluyt Foundation — was already known for recruiting retired intelligence personnel.”

We would hardly be surprised if some top positions at Control Risks are presently and/or formerly occupied by former GCHQ staff (or its sibling entities). It’s called revolving doors. Some people have already dubbed Battistelli “Blatterstelli” (for similarities to the FIFA scandal), demonstrating just how grim things may soon get. We have a lot more to say on this topic, so stay tuned. █

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