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Thursday, 19 February 2015

Can SUEPO sue EPO? It now seems so ...

Without the benefit of a good command of legal Dutch, Merpel struggles to understand the content of the document to which she alludes. It is a judgment, dated 17 February, of the Gerechtshof den Haag (this appears to be an appellate court based in The Hague). The action before it was brought by EPO staff union SUEPO against the European Patent Office and the court has, it seems, allowed an appeal against a decision of the Rechtbank den Haag of 14 January 2014 (here, but only in Dutch), lifted the immunity of the EPO, ordering it to rescind several recent amendments to the organisation's staff regulations. Given the principles at stake and the fact that the EPO is financially well-resourced, an appeal may not unreasonably be predicted.

This ruling, which is said to apply only to The Hague branch of the EPO -- this being presumably the bit that lies within the court's jurisdiction -- is believed to conclude that the EPO

  • must stop blocking Suepo.org emails within seven days,
  • may not dictate the length and type of industrial actions and, 
  • within 14 days, must allow the union to enter into collective bargaining.
This moggy understands that an English version of this decision is currently being prepared. Once she has sight of it, she will be able to speak with more confidence about what it actually says as well as what the ruling might mean for EPO governance, the position of the Boards of Appeal, the tasks faced by the Administrative Council and the morale of the organisation.

You can access this decision here or download it here

100 comments:

Anonymous said...

'O frabjous day! Callooh! Callay!' He chortled in his joy ...

A small portion of justice has finally been meted out "in the name of the King" (a real one).

Anonymous said...

A translation of the decision will make very interesting reading, sending EPAs scurrying to read those parts of the Convention which they have in the past ignored. Does the Protocol Article 3(4) restrict the immunity only to those activities of the EPO "strictly necessary for its administrative and technical operation"? We shall see. Interesting reference to the Srebrenica decision as well.

Anonymous said...

Yes,Merpel, your understanding of the document is correct. An appeal against this decision (to be lodged with the Hoge Raad) cannot result in the overturning of the finding of the Gerechtshof, unless a procedural violation has been committed by the latter. The Hoge Raad can only cassate a decision (beslissing) if the second instance did not apply the law correctly.
This is a great day.

Anonymous said...

I think that's the begining of the end of Battistelli reign.
When it will explode, it will create a scandal bigger that the Edith Cresson scandal (another French) at the European Commission in 1999. (http://www.telegraph.co.uk/news/worldnews/europe/belgium/1425715/Cresson-charged-four-years-after-European-Union-fraud-scandal.html).

Edith Cresson only appointed a friend (and it created a scandal).... Battistelli does 100 times worst.

MaxDrei said...

As we read the various comments from the anonymice, keep in mind, dear Reader, that a comment that gives every appearance of coming from an EPO Examiner might in fact be disinformation coming from a crony of the President. And vice versa, of course.

Already there is stuff on the other thread that seems to come from SUEPO head-bangers. Does it really? I'm skeptical.

Anonymous said...

This ruling, which is said to apply only to The Hague branch of the EPO -- this being presumably the bit that lies within the court's jurisdiction --

The ruling applies to the EPO as a whole, see the order on page 16 which refers to the EOO (i.e. the European Patent Organisation) and contains no geographical limitation. Further details on this point can be found in paragraphs 4.1 to 4.6. The EPO apparently did not contest that the court has jurisdiction (par. 4.5).

Anonymous said...

This is very exciting. But it will become even more exciting when the EPO will not carry out the judgement. And I have no doubt that that is, what will happen next: nothing at all. Because batistelli has clearly shown his contempt of laws and rules and the "little civil servants" who try to apply them to him. I am very curious to see how one of the EPO's host countries will react to the contempt of their national laws and courts when it happens.

Anonymous said...

Here a quick partial summaary of para 3.18 of the judgment: "The Organisation has consistently claimed immunity from jurisdiction based on its position that as an international organisation it is autonomous in all personnel matters. However correct his may be generally speaking, the autonomy cannot go so far that it contravenes basic rights generally recognised throughout Europe, without parties such as the staff union having any effective legal means to contest it..."

Anonymous said...

Just to clear up a bit the background of the judgement.

Following the introduction of the strike regulations in July 2013, SUEPO (both the central organisation and the Hague branch) filed suit with the Tribunal of the Hague using a fast-track procedure (korte geding) seeking to set aside the newly introduced strike regulations. In view of the predictable response of the EPO in all these cases, i.e. to claim immunity from jurisdiction, SUEPO argued that the strike regulations violated a fundamental right protected by the ECHR as well as by ILO treaties and that - again in violation of the ECHR - they had no practical recourse to justice in view of the dysfunction of both the EPO internal appeal procedure and of the Administrative Tribunal at ILO. Hence, according to SUEPO, the immunity of the EPO should not apply to the present case.

In first instance proceedings, the judge agreed with SUEPO that in the specific circumstances of the case immunity should not apply but nevertheless rejected SUEPO's claims on the ground that Art. 8 EPC protected the organizational integrity of the office and having different rules for different sites was not an acceptable outcome. The judge also observed that it was not apparent that SUEPO could not direct its claims directly to the "central organisation" of the EPO.

SUEPO appealed at the Court of Appeal of the Hague, seeking the annulment of the first instance decision and the repeal of the strike regulations at least insofar they apply to the personnnel in the Hague. The EPO cross-appealed requesting the first instance decision to be set aside insofar as it considered that the EPO did not enjoy immunity.

The Court first rejected the EPO cross-appeal and affirmed the first instance decision on immunity, on slightly different and arguably narrower grounds. Then it considered that if immunity did not apply, then the judicial authority had to decide the claims on their merits so that the first instance decision was set aside. As remarked by another Anonymous, the Court discussed the issue of jurisdiction in points 4.2 to 4.6 of the decision. The Court finally went on to assess SUEPO's claims exclusively on the basis of ECHR and the case law of ATILO itself, and allowed them for the most part.

So, the Court came to the conclusion that forbidding communication bewteen staff union and staff by means of e-mail filtering was illegal. Equally illegal are the parts of the strike reform that restrict the right to strike to a collective work stoppage, thereby excluding other kinds of industrial actions, and the ones that restrict the right to strike to controversies concerning the conditions of employment. Illegal is also the requirement that a strike action must have a maximum duration to be preventively communicated to the administration. Finally the Court ordered the EPO to acknowledge SUEPO as a partner for collective negotiations.

The Court however found that the deduction of 1/20th of salary for each strike day (as opposed to 1/30th for all other kinds of unauthorized absence) and the referendum mechanism to start a strike action were not so objectively unreasonable that they had to be set aside, so that part of the strike reform still stands.

As a personal commentary, I think that this decision is very fact specific, and cannot be generalised easily to other cases. Yet it can potentially have a big impact on the EPO, that is, provided that Office actually respects it. If it decides to ignore it, it will be interesting to see how the Dutch justice system will react when SUEPO will inevitably complain that a decision of one of its higher Courts has been blatantly disregarded...

LL said...

Is probably right that president will ignore this ruling. Is probably also right that will now also try to make harder life for anyone who is enemy. President is for two more years now and probably can ignore unless national presses and governments ask what is happening, what are you doing with fundamental right? But too many other scandals now.

Anonymous said...

I'm very proud for our Dutch judiciary.

Anonymous said...

There is a further interesting judgement rendered by the Regional Court Berlin (Landgericht Berlin) in SUEPO-Berlin ./. Federal Republic of Germany having the case number 28 O 25/14. Unfortunately, the judgement seems not to be publicly available.

SUEPO-Berlin claimed damages from Germany, because Germany did not oppose to the new strike rules in the administrative council. Theretofore, SUEPO-Berlin relied on the Charter of Fundamental Rights of the European Union (CFR-EU).

The Regional Court Berlin assumed jurisdiction, because Germany cannot rely on the immunity provisions of the EPC and the immunity protocol, and held the action admissible.

However, the Regional Court Berlin rejected the action as unfounded, because on the one hand the CFR-EU cannot be applied as the EPO is an international organization and not an EU institution. On the other hand, the court questioned that the claimed damages directly derive from the new strike rules.

In my opinion, the second reason to reject the action may be justified. However, I am not so sure concerning the first one. In my view, the CFR-EU should be applicable at least via Art. 125 EPC.

I would appreciate that SUEPO publishes the decisions no matter whether they are in SUEPO's favor or not.

Anonymous said...

In the discussion of the main appeal (filed by the Dutch branch of SUEPO) the court observed that the EPO never disputed that a Dutch court could take cognizance of the case, because the EPO has exclusively invoked immunity, rather than a lack of international jurisdiction. From this the court concludes that Dutch courts are competent to hear the case (point 4.5.
Another interesting point can be found in the discussion of the cross-appeal file by the EPO (points 3.10 and 3.11): the court first observes that, although SUEPO de facto has no access to an alternative relief (because of the pendency times at the ILOAT), this does not necessarily mean that Art. 6 of the European Convention on Human Rights. The court then states that, under the circumstances of the case, SUEPO's claim that its fundamental right to carry out collective negotiations is systematically violated by the EPO is prima facie not unfounded: hence, invoking immunity, as the EPO does, is disproportionate. Again, the court derives from this conclusion its right to take cognizance of the case. Under point 3.11 the court then observes that the argument advanced by the EPO that the EPO itself is not a party to the ECHR and, as such, is not bound to it, fails: Dutch courts are obliged to guarantee the rights enshrined in the ECHR for anyone who comes under their jurisdiction (which is the case for the Dutch branch of SUEPO: the court notes that the EPO never disputed that the Dutch branch of SUEPO is subject to Dutch jurisdiction). In case of conflict between the provisions of the Protocol on Immunity and those of the ECHR, the court has to decide which provisions prevail. The court concludes that the Protocol has to give way to the ECHR. Interesting stuff...

Anonymous said...

The Berlin Court's judgment is published in BeckRS 2015, 02227.

Anonymous said...

Anon 0904,
A full translation may help as my understanding of 3.7 to 3.9 was that Suepo did not get delayed justice but, rather, has no access to ILO as only individuals have standing, not associations et al. This EPO could not rely on providing a type of that route which does not allow a union access at all.

Anonymous said...

If a court can lift diplomatic immunity of a whole international organisation, then surely it must be able also to lift the diplomatic immunity of individuals active in that organisation.

Anonymous said...

"If a court can lift diplomatic immunity of a whole international organisation, then surely it must be able also to lift the diplomatic immunity of individuals active in that organisation."

Only the EPO President has full Vienna Convention diplomatic immunity.

According to the Vienna Convention such "diplomatic immunity" applies in the "receiving state" but not in the sending state which might leave the President open to legal actions in France.

Other EPO staff only enjoy "functional immunity".

It's all in the Protocol on Privileges and Immunities:
http://www.epo.org/law-practice/legal-texts/html/epc/2013/e/ma5.html

Anonymous said...

Dear Anon@10:05, paragraph 3.8 says that the fact that individual employees of the EPO can lodge an appeal with the EPO and the ILOAT against limitations of their right to strike is not relevant in the context of the case ("is in dit verband niet dorslaggevend"). Art. 11 ECHR safeguards the right to carry out collective actions and collective negotiation. In other words, the court does acknowledge SUEPO the right to have access to alternative legal relief, regardless of the fact that individual employees can lodge an appeal (which is the argument the EPO tried to use in its cross-appeal to dismiss SUEPO's suit). Individual right to strike and SUEPO's right to organise strikes and negotiate are distinct rights.
I am sorry but I have no time to provide a translation (I am myself no native speaker of Dutch or English); I hope SUEPO will do. Sorry, you will have to wait or take a Dutch crash course...

Anonymous said...

"my understanding of 3.7 to 3.9 was that Suepo did not get delayed justice but, rather, has no access to ILO as only individuals have standing, not associations et al."

That is more likely to be the correct understanding.
It is individual staff members that have access to the ILOAT. Staff Unions normally have no such access.

Anonymous said...

Anon@11:10: I have not written that SUEPO has or should have access to the ILOAT. It is of course correct, as you write, that the court noticed that individuals have the right to lodge an appeal with the ILOAT. What the court in the same passage says is that the fact that individual employees can file an appeal with the ILOAT is irrelevant for the question whether SUEPO has a right to lodge an appeal with a Dutch court. This is something different. The reason why the court made this remark is that the EPO submitted (see 3.5) that the impossibility for SUEPO to accede the ILOAT does not prove that the legal remedies available to SUEPO are undisputably deficient ("onmiskenbaar tekortschiet"); from this assumption, the EPO concludes that it cannot be said that invoking immunity is disproportionate. The court disagreed with this conclusion.

Anonymous said...

Oops. Pres BB had just issued a letter/threat to staff, directed at SUEPO Munich committee, that if there is a march to the British consulate next week, the organisers will be disciplined. So much for free speech. Is this his response to the Dutch court?

MaxDrei said...

BB announces that any employee involved in organising a demonstration outside the UK Consulate in Munich will be "disciplined". Do I see it right, that it is the act of organising that requires discipline (rather than the act of demonstrating)?

I recall another regime that began its reign of discipline by going after union organisers. I wonder, how long is the AC going to continue to sit on its hands.

Anonymous said...

" Last week-end was marked by yet another tragic event in Europe as Denmark has been the victim of terrorist attacks in the centre of Copenhagen.

I am joined by the staff of the European Patent Office in expressing full solidarity with the Danish people. Europe is based on values among which freedom of expression and liberty are the most essential.

We must not be afraid, assume our responsibilities and stay united to reject these attempts against the basis of our plural society. "

http://www.epo.org/news-issues/news/2015/20150217_de.html

Anonymous said...

This spook could be ended very quickly if the AC changes from voting by show of hands to voting by secret ballot. The AC surely has the right to do this without having to ask the president of the office. It would severely hamper the president's ability to bully the delegates into voting his way. Voting in this much more democratic way would, I am sure, give quite different results from the coerced voting behaviour we see now.
Jesper Kongstad, the ball is in your court!

Anonymous said...

Quote:
Those who take an active role in its organisation must know they ate infringing the standards of conduct expected from international civil servants. Should the planned demo actually take place, , this would constitute a breach of the applicable legal framework and those concerned will be held liable for the beach of their obligations under the EPC and the Service Regulations.

Anonymous said...

Well, I had been pondering whether or not to participate in the demonstration on 25 February, midday.
BB has just made up my mind for me: I'll definitely be there to exercise my democratic rights (even in the unlikely event that I should be the only one there!)

Anonymous said...

For the anon@14:32: you won't be alone! See you there.

Anonymous said...

"I recall another regime that began its reign of discipline by going after union organisers."

Careful now or you'll be moving into Godwin's Law territory ...

Anonymous said...

So, (quote from anonymous @ 14:18) it's ok for senior to completely ignore the standards of behaviour expected from international civil servants and ride roughshod* over ordinary staff's rights but it offends against those same standards if ordinary staff protest about that treatment!
What a brave new world!

*P.S.: Those in senior management whose command of English is inadequate will find a definition of "riding roughshod over" something here:
http://idioms.thefreedictionary.com/ride+roughshod+over

Anonymous said...

If 1000 staff members show up for that demonstration, it will be very difficult to apply diciplinary actions. This situation is not sustainable, Examiners get on the baricades and walk for a more democratic organisation.

Anonymous said...

There must be a huge turnout at the GB consulate. As many staff, and Munich based attorneys, as possible. Strength in numbers. Enough with this authoritarian rubbish.

Anonymous said...

Well technically, only the organisers are at risk. Pour encourager les autres...

Anonymous said...

I don't live in Munich but this attempt to stop a fully democratic demonstration is so mind-bogglingly unacceptable that I think I shall take the day off and travel to Munich to be at the demo. Time for a strong signal, methinks.

Anonymous said...

"This blogger wonders whether the "senior employees" other than the members of the boards of appeal (the employees appointed by the Council under Article 11 (1)(2) EPC are the president and the vice president(s)) are mentioned only for the sake of completeness or whether this might indicate that any sort of investigations with regard to the activities of these persons have been discussed or are on the first schedule of the new council disciplinary committee?"

http://germanip.blogspot.com/2014/12/epo-news-from-administrative-council.html

Anonymous said...

BB's letter is actually pretty remarkable, a long rambling word salad desperately trying to establish a link between some vague articles in the service regulations and examiner's right to demonstrate for their rights in public and in their spare time (which they have done multiple times in the past without being disciplined).

The letter accuses the SUEPO chair of displaying an "attitude which by exercising inappropriate public pressure undermines the independence of the delegations". The UK delegation in the AC is of course not independent and unaccountable, but serves at the pleasure of the UK government. It would be interesting to hear what that government has to say about attempts to suppress peaceful demonstrations, maybe somebody on this blog is based in the UK...?

Anonymous said...

While it's all very nice for people to stand up for their democratic rights, as several have stated they will, but please allow me to point out that someone has organised the demo and it would seem their head is going to be on the block if it takes place. Is that what those standing up for their rights want? Surely those who applied to the German authorities for the demo to be allowed to take place should have a say in whether they suffer for it. And if they choose to cancel it, what is the situation then for those standing up for their rights?
It would seem we have the interesting constellation that a Dutch citizen may be threatened for carrying out an action authorised by the German state in connection with the British consulate. It would be interesting to hear what the respective governments have to say about this - even if the EPO is not touched per se.

Anonymous said...

Worth reading the whole letter. There is also a 'it's none of your business' what your betters do in the letter which can also be a shot across the bows of the BoA and Suepo The Hague I.e. Don't you dare make contact with national authorities or the member states etc. Maybe also a dig at CIPA? The letter was sent to one person of Suepo Munich but BB published it on the EPO intranet for all staff to see.
Strangely, he hasn't referred to the Dutch case yet...

Anonymous said...

Perhaps the EPC could be profitably amended to incorporate a concept from US law ?

http://usgovinfo.about.com/od/thepresidentandcabinet/a/impeachment.htm

Zazie said...

Let me see. Unions criticizing management is part of normal union activity and belongs to the fundamental principles of a democratic, lawful society. The EPO cannot opt out of that. That is one of the things the court in The Hague said yesterday. To respond by trying to limit union activity would perhaps be contempt of court, if it was in the same country. It does look to me as though such an attempt does much more to bring the organization into disrepute than any union criticism could.

Is it not the case that when no one dares be seen as an organizer, an organizer is not needed if you have a hashtag?

Zazie said...

On second thoughts, there are many thousands of examiners, formalities clerks, lawyers, highly educated and skilled, who are the organization. It is himself, the president brings into disrepute.

Anonymous said...

Has Mr Battistelli really threatened staff with disciplinary measures? Well, here's a suggestion, why don't you all go to the demo wearing ski masks or Guy Faukes masks. This will draw an even bigger attention from the media!

Anonymous said...

To this U.S. based observer, the Charley Foxtrot continues.

Anonymous said...

Batti-man should join the demonstration himself if he wants his opinion to be heard or come by with his presidential limousine

Anonymous said...

Has Mr Battistelli really threatened staff with disciplinary measures? Well, here's a suggestion, why don't you all go to the demo wearing ski masks or Guy Faukes masks. No wait, why don't you print out a picture of Battistelli's face and wear it as a mask! This will draw an even bigger attention from the media!

Anonymous said...

It is very sad indeed that EPO has become a rogue organization in hands of the current management. The EPO and the BoAs did a great service to Europe in harmonizing and developing patent law. The present trends are destroying much of what was achieved in the past. It´s time that the member states react and put an end to this situation.

MaxDrei said...

If the AC continues to cover the backs of EPO management, BB can continue to stick two fingers up to the judges of any single Member State, whatever they say.

SUEPO it was (I suppose) that asked Munich city fathers for permission to protest in public, in front of the UK Consulate. That would be the quiet little residential street in Bogenhausen, I suppose. Moehlstr I believe, next door to the Italian Consulate and two doors down from the Russian one. No road traffic problems that I can imagine. Are EPO employees shouting rowdies, likely to be a public nuisance or a threat to the peaceful residents in that street? Surely not. I think that HMG and the British public should take it as a compliment, that SUEPO puts its faith in the UK to do something at AC level. In Germany today, one often hears mention of "the Fairness Principle". Readers, where did they get that notion from, and why do they express the idea in English?

In the face of BB's threat to discipline the organisers of the protest, either SUEPO cancels the Feb 25 public protest, or it does not. If it does, then I suppose the way is clear for BB to go after any EPO employee who dares to protest. Expect cameras everywhere, on the day.

If SUEPO does not cancel, well then its officers remain the to-be-disciplined "organisers" aren't they?

Anonymous said...

Baghdad Benny strikes again. In the history of the EPO no other president has "managed" to irrevocably damage the reputation of the office. His latest letter threatening the staff is breathtakingly hypocritical. By disclosing the contents of the letter he knows there will be outrage amongst the staff. I am not convinced that he cares all that much whether or not there is a demonstration in front of the British consulate in Munich. He is using the anger of the staff as a lever on Suepo. If the staff demonstrate he will discipline the organizers, as we know suspensions or worse are to be expected. If the intimidation is successful the demonstration will be called off and he has shown Suepo who is boss. Win-win situation in his view.

Anonymous said...

The questions are now, how to get rid of the President, how to get rid of the council, how to avoid a complete EPO implosion?

Until now BB has had the life easy because the staff, for sense of service towards the European public, by naivety, cowardice, egoism and also because it is not its traditional culture, has not used the only weapon that can arm BB, the production.

Several highly experienced colleagues are already anticipating their departure on pension to leave the boat before it sinks totally.

It is more than time to show him how much he is worth without the staff?

To say no to his toxic reforms.
To say no to his anti-EPO, anti-staff, anti-public, anti-democratic, behavior.

Let's use the dynamic of the dutch court decision and to do this,
quoting the grand thinker Frank Ribery "we will have now to play like men"

Anonymous said...

"It does look to me as though such an attempt does much more to bring the organization into disrepute than any union criticism could.

Investigate that anonymous commentator on suspicion of "lèse-majesté" !

Anonymous said...

"Strangely, he hasn't referred to the Dutch case yet... "

Have you considered the possibility that nobody has told him about it ?

His "messengers" might have left their Kevlar vests at the dry-cleaners ...

Anonymous said...

"If the AC continues to cover the backs of EPO management, BB can continue to stick two fingers up to the judges of any single Member State, whatever they say."

AC delegates might not have the same luxury as "their" President.
A delegate may have his "immunity" lifted by his own state.
Look at the Protocol on Privileges and Immunities.
AC delegates could in theory end up becoming exposed to legal action in the courts of their home states, especially NL and DE (the main host states).

Anonymous said...

Battistelli's move to prohibit the demonstration and intimidate the staff is as smart as his two close advisors: mr Lutz and ms Bergot. Now the wave of protest will be higher and wash all of them away. Just wait and see.

Anonymous said...

> A delegate may have his "immunity" lifted by his own state.
Look at the Protocol on Privileges and Immunities.

I did not notice "own State", just "a State", art. 12(2).
Could you please specify which provision do you mean?

There is also, art. 22. It seems to be something else. This is there own representatives are addressed.

MaxDrei said...

I suppose that, up to now, for an AC member state wondering whether or not to turn a blind eye to what BB is doing, there has been no "downside". From now on though, continuing to turn a blind eye might get awkward.

It remains, however, a considerable stretch of the imagination that, amongst the political masters of any civil service hack on the AC, any of them will see this as worthy of their attention.

Seriously now, why should they bother to give it their attention?

Anonymous said...

As BB once said:
" Wenn du mir streikst und nicht mehr arbeitst ..."

But once upon a times everything was better, including the prose of our betters.
So I submit this model to the rising Benoit Ba (In French, as a cortesy and a service for the next presidential communiqué) :
"J'ai toujours souligné que le travail honnête
Ne déshonore pas, mais qu'il est constructif
Et produit du profit, donc qu'il est nécessaire.
J'accorde au travailleur ma sympathie entière ;
Pris en particulier. Et c'est uniquement
S'il se ligue et prétend avoir son mot à dire
Dans certaines questions dont il ne comprend rien,
Comme sur les profits ou des questions pareilles,
Que je dis : « Camarade, halte-là ! Pas d'erreurs !
Tu es un travailleur, c'est donc que tu travailles,
Si tu fais grève et ne travailles plus, alors
Tu n'es plus un travailleur, mais un individu
Dangereux, et alors je dois passer aux actes. »

Life imitating art is fascinating, again and again.
We will see Wednesday how resistible the new version is.

Anonymous said...

@anon 15:12: you are giving them too much credit... seriously. Ms. Bergot and Mr. Lutz have been selected for their track record in complying with instructions, irrespective of the ethics of those instructions. They are not his advisors. You will not find his advisors on the EPO's organigram.

LL said...

If not possible to "organise" demonstration, can president stop me walking as private person to consulate? Can president stop me delivering letter to the consulate? Can president discipline me for doing it? Can he discipline 999 other people who take walk to deliver a letter sometime in the day?

Anonymous said...

Examiners of Epo.its easy
1. Stop or dead slow your individual production
2. Do not cooperate in the office no taste no meeting nothing extra
3. Take to local courts Epo. Ac members battiman everyone all the time .
4. Protest Loudly like UK embassy etc

If you are afraid think that one day of freedom is worth more than your families bearing with your depression everyday in beautiful Holland or germany

Anonymous said...

"It remains, however, a considerable stretch of the imagination that, amongst the political masters of any civil service hack on the AC, any of them will see this as worthy of their attention.
Seriously now, why should they bother to give it their attention? "

Well for starters, the Dutch Court of Appeal has just delivered a ruling in favour of SUEPO in which it seems to have found fault with regulations introduced by the AC.

It's a bit difficult to believe that the competent Dutch ministries are not starting to ask some questions about what exactly is going on at this international organisation with a branch office in their territory.

Admittedly it's only 1 out of 38 but you have to start somewhere.

Anonymous said...

EPO Staff. Send your families...

Anonymouse said...

> A delegate may have his "immunity" lifted by his own state.
Look at the Protocol on Privileges and Immunities.

I did not notice "own State", just "a State", art. 12(2).
Could you please specify which provision do you mean?


It seems clear to me that the "Contracting State" of Art. 12(2) can only waive the immunity of its own representatives. Only the entity in whose interest immunity was accorded to a particular person can waive that immunity. Since Art. 12(2) states that a "Contracting State" can waive immunity, it follows that a representative of a Contracting State is accorded immunity in the interest of that Contracting State (and not e.g. in the interest of the Organisation in which case it would be the president or the AC that could waive immunity).

Employees of the EPO enjoy (limited) immunity in the interest of the Organisation, so it is the president of the EPO who, under certain circumstances, can (and has the duty to) waive their immunity (Art. 19(2)).

Anonymous said...

I guess it might be a good idea to stretch my legs next Wednesday. Maybe have a little walk along the Isar. Around noon. Hoping the boardwalks will be so crowded that I'll have to walk on the streets.

Anonymous said...

Honestly, l am a German national and I work at the EPO as examiner. I don't get it. One phone call from the German Minister of Justice to his Frencb college, and BB's days and those of Kongstad would be over. Instead, they are allowed to continue, together with the Croation gangster. How is this possible in the middle of Europe in 2015?

Anonymous said...

The Dutch decision on illegality of puting a limit on the strike duration can apply only to The Netherlands. This provides for a constelation where The EPO can guaranty the resuned functioning after any strike interruption only in German sites. Hence, a request for holding an Oral Proceedings or even to prosecute the application in Munich or Berlin should be grantable. I wander if any attorneys will go for ir?

MaxDrei said...

We all know that managing a dairy herd is different from managing a herd of EPO Examiners. But any simpleton knows that production depends on keeping your high yielders contented. Putting them all on a treadmill tends to be counter-productive, as some of the comments above tend rather to confirm.

Which is not to deny, duh, of course, that contentment amongst the high yielders does require that those who habitually swing the lead are helped out of their bad habits. But this is best done when management and union act in concert, for the good of the organisation they both serve.

AC Members, I have a message for you: The EPO is the goose that since 1978 has been laying golden eggs. Do you want to be the ones blamed for its demise. No? Then get active, please.

Anonymous said...

Life is imitating art, as often, which remains as fascinating as ever.
However, the prose of the present BB is not quite to the level of the original BB; it could be more to the point.

So in the spirit of helping I submit the original Prose - OK, in French, I want to be helpful - of the better known BB to the ascending one, as an model for its next communiqué:

"J'ai toujours souligné que le travail honnête
Ne déshonore pas, mais qu'il est constructif
Et produit du profit, donc qu'il est nécessaire.
J'accorde au travailleur ma sympathie entière ;
Pris en particulier. Et c'est uniquement
S'il se ligue et prétend avoir son mot à dire
Dans certaines questions dont il ne comprend rien,
Comme sur les profits ou des questions pareilles,
Que je dis : « Camarade, halte-là ! Pas d'erreurs !
Tu es un travailleur, c'est donc que tu travailles,
Si tu fais grève et ne travailles plus, alors
Tu n'es plus un travailleur, mais un individu
Dangereux, et alors je dois passer aux actes. »

We all wait for Wednesday to know how resisitble is Benoit.

Anonymous said...

(2/2) The ILOAT, which is the administrative tribunal ruling on disputes between staff members of the Organisation and the Organisation, has previously ruled on a case (Judgement 2114) where a permanant staff member wrote a letter to members of the Dutch parliament. The letter, in the opinion of the Organisation, created a "risk of irritations" and contained "derogatory remarks". He was reprimandend by the president of the EPO. The essential considerations 9 to 12 of the tribunal with respect to the sending of the letter were as follows:

"9. The complainant perceives his writing of the letter as a legitimate exercise of his freedom of expression. In this connection, however, his position in the EPO as a patent examiner does not call for him to communicate with a member of his national parliament.

10. The EPO cannot be faulted for condemning this act as going beyond the boundaries of freedom of expression, for such a right of international civil servants cannot be regarded as being without limit. Indubitably, the complainant failed to comply with his obligations under Article 16(1) the Service Regulations to "abstain from any act and, in particular, any public expression of opinion which may reflect on the dignity of his office". He also failed to comply with the obligations under Article 14(1) of the Service Regulations to "carry out his duties and conduct himself solely with the interests of the European Patent Organisation ... in mind".

11. The complainant's remarks about a national delegation not only tend to cause embarrassment to the Office, but could also have led to tension in the Administrative Council contrary to the interests of the EPO.

12. In expressing his opinion regarding developments within the EPO to a member of parliament, the complainant seems to assume that it is the role of national parliaments to control the actions of international organisations. This betrays an attitude on the part of the complainant which undermines the independence of the international civil service of which he is part."


On the other hand, permanent employees of the EPO in Munich and Berlin enjoy the rights conferred to them unter Articles 5 (freedom of speech) and 8 (freedom of assembly) of the Basic Law of the Federal Republic of Germany (Grundgesetz, GG). Regarding Article 8 GG, even though a basic right conferred to people with German nationality only, most probably is to be extended to at least European Union citizens to avoid discrimination.

Most probably, the employment relationship between the Organisation and its employees a purely contractual one and is not of the same public nature as is the relationship between the public servants (Beamte) and the constituencies of the State in Germany they serve for. Consequently, restrictions to the basic rights of Articles 5 and 8 GG, which the special relationship of trust and loyality between the German public servants and the State may require and which flow from the provisions of Article 33 (5) GG, are most probably not operative in the case of EPO employees.

The Federal Constitutional Court has previously ruled (see 2 BvR 1458/03) that decisions of the president of the EPO regarding its staff are not acts of the (German) public power. The decision of the president in the constitutional complaint 2 BvR 1458/03 (withdrawing SUEPO's access to the Office's e-mail system) did not have an immediate legal effect on the (German) state's legal order and therefore could not be attacked with a constitutional complaint. The decision of the president of the EPO only touches the inner legal order of the Organisation (items 11, 15 and 16 of 2 BvR 1458/03)

However, while withdrawing the access to the Office's e-mail system is clearly an act which remains within the confines (of the legal order) of the Organisation, this is less sure for a public demonstration taking place outside the premises of the Organisation. But does it have an immediate legal effect on the German state's legal order?

Anonymous said...

"We all wait for Wednesday to know how resisitble is Benoit."

No need to wait.
The President will emerge triumphant!
He is the "Grand Timonier" who marches from victory to victory.

Anonymous said...

The demonstration on Wednesday will be cancelled.

Anonymous said...

Anon 1346,
Interesting. Of course things were different then re.whistle-blowing, but if that stands then any comment here and elsewhere is forbidden for EPO staff and, indeed, the external members of the BoA too.
Reading that case the decision also seemed to rest on the type of comment made which seemed to involve 'unsubstantiated' statements about members of the AC. If not, then the ILO seems to condemn whistle-blowing because EPO rules would appear to ban contact outside the EPO. On that basis the March this week is also verboten.

Anonymous said...

This is the first part of the comment of Feb 22 13:46 (1/2) Regarding the letter from Battistelli to the members of the SUEPO Munich committee, the legal situation is far from simple. I would like to outline this with the following considerations:

The members of the SUEPO Munich committee are permanent staff members of the EPO and insofar, the Service Regulations for Permanent employees of the EPO (SS) are applicable to each one of them.

Paragraph (1) of Article 14 SS ('General obligations') stipulates:

"A permanent employee shall carry out his duties and conduct himself solely with the interests of the European Patent Organisation (hereinafter referred to as "the Organisation") in mind; he shall neither seek nor take instructions from any government, authority, organisation or person outside the Organisation."

Further, paragraph (1) of Article 16 SS ('Incompatible activities') stipulates:

"A permanent employee shall abstain from any act and, in particular, any public expression of opinion which may reflect on the dignity of his office."

Lastly paragraph (1) of Article 20 SS ('Unauthorised disclosure') stipulates:

"A permanent employee shall exercise the greatest discretion with regard to all facts and information coming to his knowledge in the course of or in connection with the performance of his duties; he shall not in any manner whatsoever use or disclose to any unauthorised person any document or information not already made public."

Hence, there are three critical questions:

1. Is the organisation of (or the participation in) a public demonstration by a permanent staff member, which is intended to draw attention of the public to alleged failure of the Administrative Council of the Organisation to exercise due oversight over the President of the EPO, its alleged failure to fulfill its duty of care towards EPO staff, and its alleged lack of transparency towards the EPO's users and the general public (see news on the SUEPO website dated 18/02/2015) in the interest of the said Organisation?

2. Organising (or participating in) a demonstration certainly is an act of 'public expression of opinion'. Does the organisation of this demonstration (or the participation therein) reflect on the dignity of the office of those who organise the demonstration or participate therein.

3. Does a permanent staff member who is organising (or participating in) a demonstration 'excercise the greatest discretion with regard to all facts and information coming to his knowledge in the course of or in connection with the performance of his duties'?

Anonymous said...

On the other hand, permanent employees of the EPO in Munich and Berlin enjoy the rights conferred to them unter Articles 5 (freedom of speech) and 8 (freedom of assembly) of the Basic Law of the Federal Republic of Germany (Grundgesetz, GG).

The usual explanation is that while the right to freedom of speech is a human right, the right to employment by (in this case) the EPO is not.

Certainly any employee of a regular company is aware that he or she can be fired for publicly complaining about his or her employer, e.g. on facebook or twitter. Within the EPO colden cage this awareness exists to a far lesser extent. False sense of entitlement is a significant problem.

Consequently, restrictions to the basic rights of Articles 5 and 8 GG, which the special relationship of trust and loyality between the German public servants and the State may require and which flow from the provisions of Article 33 (5) GG, are most probably not operative in the case of EPO employees.

Indeed, most probably not. But you have to understand why Art. 33(5) GG exists. If an employee of a regular company is fired for publicly criticising the company, he cannot invoke Art. 5 GG since that provision only guarantees freedom of speech vis-à-vis the German state. A German civil servant could in principle invoke Art. 5 GG if the state fires him for public criticism. But then there is Art. 33(5) GG.

Anonymous said...

To anonymous of 18:49

It is not a case of criticizing on Facebook, but of an organized manifestation for contesting what the EPO-employees se as an attack on their rights, entitled or not.

I guess there are countries (or times) where organized labor is (was) a reason to be fired in the private economy, but in any case not in Germany, not now.

The limitations for Beamte in Germany is not a possiblity at the office, lacking the couterbalancing institutions and rights German public servant have.

Or did I miss something?

Anonymous said...


The top brass at the EPO insist on defining their organisation a "state within a state".
In the quotations from anonymous at 16:37, try and replace "permanent employee" by "citizen" and the "organisation." by "state", and draw your own conclusions.

Anonymous said...

To the commentators on freedom of speech, etc.:

- yes, it is true that freedom of speech only means freedom to say what you like without breaking the law (provided you don't slander anyone); it doesn't mean you keep your job.

- that is why unions and union officials have additional protection (see several early ILO judgments on this, especially 274), so that they can go public and not lose their jobs. Obviously, every union march in, say, France, is a protest against the employer, but the staff don't get sacked ...

Conclusion: if you write to the UK government as a member of staff, you're probably in trouble; as a union rep, possibly not. Same for organising a demo.

Anonymous said...

The organizers of the demonstration in front of the UK embassy in Munich are very brave, but they should not risk being fired. The union SUEPO could not afford to compensate fully all persons dismissed.

As BB is a coward hiding behind diplomatic immunity and 5 bodyguards, it is time the union sets up a professional external entity under national law, such that demonstrations are organized by persons out of reach of BB's hands. BB can then direct his threats to individuals in the union committee, who will respond that they are not the organizers.

Also, the union suepo needs to have a professional external group of lobbyists, to inform the member states and the press about BB's violations of International laws and conventions.

Anonymous said...

Suepo has officially cancelled the march and will seek legal advice about future actions.

Anonymous said...

It's a very sad day when those who are actively engaged in wrecking the EPO succeed in stopping those wishing to demonstrate against that destruction by accusing them of being its cause.

Anonymous said...

Is "Benoit" not French for "Benito"?
The ancient Romans must have known something when they said, "nomen est omen".

Anonymous said...

Interesting case in NL reported today. V&D, a loss-making department store chain, had unilaterally cut washes by 5.8%. A judge had just said that they can't do that to union members without consultation ( and agreement? ). The chain plans to appeal but it suggests that in NL union rights include the right to at least be consulted about a reduction in employment conditions, in particular wages. Will Suepo benefit from this too?

Anonymous said...

Well, it actually corresponds to "Benedetto" (Benedict), but it certainly reminds me of a certain Benito that used similar methods.
He is disgusting, but the AC matches him.

Anonymous said...

Benedictus

Anonymous said...

Benedictus has spoken, the matter is settled:

"[...] For the sake of preservation of the EPO and in the interest of the staff, this judgement is neither legally admissible nor practically enforceable.

As a consequence, the EPO cannot execute this judgement. Our legal framework remains unchanged and the rules challenged through this trial will continue to apply.
It is unfortunate that such a dangerous development was initiated and encouraged by an union whose first aim should be
to preserve the fundamental interests of the staff and the Organisation.

You can count on my perseverance and commitment to defend our successful model in the best interests of the Organisation and its staff."

Anonymous said...

So, the office will ignore a judgment by a court of the second instance in one of the founding countries of the EPC.

That must surely put the EPO, with its seat in the Netherlands, in a diplomatically precarious position.

And anyhow, Battistelli misses one crucial point. No matter how much asserts immunity, a highly respected court in a highly respected country has decided: The Administrative Council acting on a proposal by the EPO president has committed multiple breach of one of our most fundamental laws in Europe: the Convention on Human Rights.

And this happens in an organisation responsible for a very legal activity: the grant and refusal of patents. One wonders what conclusions one may draw about trust in the EPO now.

Anonymous said...

To Anon at Feb 23 at 16:31

Hence we can conclude that the President of the EPO intends to ignore the ruling of the Den Haag Gerechtshof (the court)?

In these circumstances, it is useful to have a look at the EPC, specifically the Protocol on Protocol on Privileges and Immunities (PPI), which is part of the EPC. Articles 19(1),(2) and 20(1) of the PPI are relevant as they deal with 'the course of justice' in relation to the Organisation:

Article 19
(1) The privileges and immunities provided for in this Protocol are not designed to give to employees of the European Patent Office or experts performing functions for or on behalf of the Organisation personal advantage. They are provided solely to ensure, in all circumstances, the unimpeded functioning of the Organisation and the complete independence of the persons to whom they are accorded.

(2) The President of the European Patent Office has the duty to waive immunity where he considers that such immunity prevents the normal course of justice and that it is possible to dispense with such immunity without prejudicing the interests of the Organisation. The Administrative Council may waive immunity of the President for the same reasons.

Article 20
(1) The Organisation shall co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice, to ensure the observance of police regulations and regulations concerning public health, labour inspection or other similar national legislation, and to prevent any abuse of the privileges, immunities and facilities provided for in this Protocol.

Article 19 and in particular paragraph (2) thereof can no longer be operative in the present case, the immunity having been set aside by the court for the purposes of the ruling.

All that remains is the obligations of the Organisation to 'co-operate at all times with the competent authorities of the Contracting States in order to facilitate the proper administration of justice'.

To all the fellow European patent attorneys out there: the EPO appears not to be bothered about fulfilling its own obligations under the EPC (remember: the PPI forms part of the EPC).

What does this mean for the respect of other, more substantive parts of the EPC, such as Parts II to VI thereof, especially in times where we cast doubt on the capacity of the Boards of Appeal to independently take decisions on appeals against decisions of the EPO?

Anonymous said...

Please allow me to point out that "trust in the EPO" can still be maintained for those examiners who continue to do their jobs to the best of their ability. Such questions as have been dealt with by the Dutch court are on a different level and should not be confused with the day-to-day work of the office. It would be nice if the examiners could just get on with what they do BEST.

Anonymous said...

The violation of Human Rights and the refusal to stop this violation (refusal to execute the judgment of the Den Haag court) is something quite big. The EPO president doesn´t see the reality anymore. He feels he is above the law.
Not long ago, the president (another French) of another International Organization (IMF) got his immunity lifted and went to jail.
The EPO president has to think twice. Immunity doesn´t give full impunity.

Anonymous said...

Lets see how the story ends ....pretty sure batty- man and the Epo go together to .....hell

Anonymous said...

I do not understand what you eponians are complaining about. You have such a wonderful president! Not only is He capable of having a better judgement than his own disciplinary committee, overruling each and every (unanimous) decision in the favour of staff, He also has a better medical knowledge than three physicians who declared a staff member invalid, by declaring him fit for work, and now He also proves to have a better legal knowledge than a national appeal court by declaring their decision "legally inadmissible". Such knowledge in one person is something you should admire!

Anonymous said...

You knew it m I agree lets see what happens now....ita academically interesting

Anonymous said...

Anons 18:39 and 19:10 - the President has to ignore the decision of the Dutch court because the EPC, and in particular the Protocol on Privileges and Immunities tells him he has to.

There are many instances where national courts have overstepped the mark on immunity - that is what the ICJ is for. See, e.g.
http://www.icj-cij.org/docket/files/143/16883.pdf

Anonymous said...

Interestingly, SUEPO in June 2013 sent a letter to the governments of the Member States about the "reforms" introduced by Battistelli.

An key passage reads: "If introduced, the measures will result in legal challenges against member states of the EPO for breach of obligations set out under international conventions to enforce such fundamental rights, and will likely draw the attention of a wide range of media".

http://www.suepo.org/public/su13083cl%20-%20European%20Patent%20Organisation%20is%20seeking%20to%20limit%20Freedom%20of%20Association%20for%20Staff%20%28decision%20planned%20on%2026%20June%202013%20by%20the%20Administrative%20Council%29.pdf

Now we have the decision of the Dutch court and the attention of the media.

Why did the member states not react?

Anonymous said...

Anon Tuesday, 24 February 2015 at 05:39:00 GMT is right:
we all should admire the president for his knowledge (and wisdom).

Let's have a look at the facts*:

The Dutch judges 1) are not aware of all facts
2) are not aware of what the rules of the president are about
(to give EPO staff the right to strike and freedom of speech)
3) does not understand that the president made the rules in order to protect
the fundamental rights of EPO staff!
4) does not understand that this case has nothing to do with the
violation of basic rights by the president!
5) and nevertheless took this decision!

That's why the president had to come to the inevitable conclusion: “this judgement is neither legally admissible nor practically enforceable. … the EPO cannot execute this judgement.”

*compare with http://ipkitten.blogspot.de/2015/01/judicial-independence-epo-responds-to.html

Anonymous said...

Having looked at the translation provide by SUEPO, one thing that the Dutch court does not seem to have addressed is that there is no fundamental "right to strike" across Europe. German civil servants are not entitled to strike, period. Perhaps the EPO did not argue this point and simply relied on its immunity.

Anonymous said...

one thing that the Dutch court does not seem to have addressed is that there is no fundamental "right to strike" across Europe

Regarding the right to strike, the Dutch court seems to have based itself at least in part on this document.

See for example paragraphs 131, 523, 533, 541, 551.

Regarding public servants, see paragraphs 572-580. In particular:
The right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population).

I guess examiners in principle exercise authority in the name of the Organisation, but it's not as if public life would come to a stand still during a strike.

In any event:
596. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented.

ILOAT appeals aren't speedy.

Anonymous said...

Anon 2240,
ILOAT are not speedy or slow - for unions such as SUEPO they are non-existent as only individuals can appeal to ILOAT.

Anonymous said...

BB has recently hired a handful of lawyers.
Reading some comments we know now how they occupy their evening.

Anonymous said...

Regarding the right to strike in the context of international civil service, see e.g. ILOAT Judgment No. 615:
6. The EPO's notion of the right to strike is out of date. As a matter of principle a strike is lawful. It does not break the contract of employment or the administrative link between an organisation and its staff. (...)

This judgment is about a strike held in 1982. The list of complainants includes at least two later (now former) VPs and numerous later principal directors. The current VP1 is not mentioned in this judgment, as he was stationed in The Hague and the strike was held only in Munich and Berlin. (Btw, it is now pretty much impossible to organise local strikes in case of local problems, as a vote is held among all staff.)

The strike was organised by the EPO Staff Union, i.e. SUEPO, which today is no longer "recognised" by the president of the EPO (the one who in 2010 said: "Meine oberste amtsinterne Priorität ist es, ein Klima des Vertrauens zwischen Amtsleitung und Personal zu schaffen").

Anonymous said...

ILOAT are not speedy or slow - for unions such as SUEPO they are non-existent as only individuals can appeal to ILOAT.

Read my whole comment. I replied to the statement that there was no fundamental "right to strike". It follows from ILO principles that restrictions to the right to strike must be accompanied by a speedy dispute resolution mechanism.

Unions do not strike. Employees strike. So in order to determine whether there is a right to strike for EPO employees, it must be checked whether those employees have access to a speedy dispute resolution mechanism. Clearly they have not, so their right to strike cannot be restricted.

That SUEPO does not have access to the ILOAT is a different matter.

BB has recently hired a handful of lawyers.
Reading some comments we know now how they occupy their evening.


Assuming you're referring to the comment of 22:40, you must learn to read.

Anonymous said...

Knowing that one of the ILOAT judge comes from the ENA, same school as BB, gives me a strong feeling of "well being" and improves my conviction that we are in good hands.

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