From March to September 2016 the team is joined by Guest Kats Emma Perot and Mike Mireles.

From April to September 2016 the team is also joined by InternKats Eleanor Wilson and Nick Smallwood.

Thursday, 26 February 2015

Dutch Minister trumps Court of Appeal ruling, reasserts EPO immunity

Is this the EPO ...?
"Opstelten: uitspraak rechter geldt niet voor Europese instelling" is the title of an article in this morning's edition of Dutch newspaper de Volkskrant, which brings tidings of the latest twist in the battle over the European Patent Office's governance. You can read it here in the original Dutch or run it through the online translation service of your choice.

The bottom line, as summarised in an EPO staff communication, is this:
"The president has just received an official notification from the Dutch government which has decided to undertake some first actions to ensure that the judgement is not executable". 
The gist of the article in de Volkskrant is that the Dutch Minister of Justice Ivo Opstelten has made a decision on the basis of the EPO's immunity from execution of court orders under international law, an immunity which the Court had previously lifted.  Whether the minister is correct, either in terms of law or in terms of policy, appears to be open to question.

This moggy, having struggled to comprehend the English version of the article is grateful to Bart van Wezenbeek (European Patent Attorney and Senior Associate, V.O.) for the following:
I have not been able to find the official statement of Opstelten and it is also unclear whether Opstelten would have said this as an announcement from the government, from the ministry or on personal title in an interview. In the news item two legal scholars are quoted who criticize the statement: Hans Engels is quoted to say that “Legally he may be correct, but in view of our constitutional system, this appears to be very strange. It is remarkable that this kind of powers reside with a minister. And I do not express myself in a positive way here”. Further, prof. Cedric Reyngaert (Univ. Utrecht) is quoted: “In fact he is eroding the power of the court. International organization will continue to put themselves above the law, although that already is a problem. Opstelten finds his basis in some law of the ’70s. That should be applied dynamically, but he is taking a very conservative view”.
In a further development, this moggy understands that the President and the head of the Administrative Council have invited the Enlarged Board and the Association of Members of the Boards of Appeal (AMBA) committee to meet on 10 March.  She very much hopes that something good and constructive will come from this but fears that, as so often happens, hope will not triumph over experience.

At this point the opinions of the patent fraternity become less helpful than those of specialists in international law and Dutch constitutional law. If readers can ask any of them for an expert input, that would be most helpful.

59 comments:

Anonymous said...

It would appear that the Battistellian doctrine of the "non-separation of powers" has been successfully exported to the Lowlands.

Anonymous said...

All Opstelten has done, according the Volkskrant report, is to instruct the bailiff not to execute any instruction by the court. He is not in any position to do any more than that.

As such, then, the decision of the court stands.

Anonymous said...

The Minister has most obviously been put under pressure by Battistelli & Co with the usual means. A shame! Hopefully the rules of law will prevail and the minister silenced.

Anonymous said...

I have come to the rather sad conclusion that European politicians wants Battistelli and his ilk to succeed - fine, but then don't spout platitudes about human dignity, fundamental rights, independence of the judiciary and so on; it's manifestly all poppycock. The powerful rule unhindered, and the rest of us will have to shut up and dance to their tune. Welcome in the 21 century!

Anonymous said...

Anon 1102,
Indeed the minister expressly stated (if this is officially him) that he is not taking a side in the basic legal action, only with regard to any execution. The EPO should have been provided in person with the court's order so presumably the president had reacted to the ministry.

Wouter POrs said...

Dear Merpel,

The magazine article says that the Dutch Minister of Justice has instructed the bailiff not to enforce the judgment.

However, according to the SUEPO website, the judgment was already served on the European Patent Organisation by the bailiff on 19 February. Normally Dutch judgments against governmenet institutions do not contain penalties for non-compliance, as governement institutions are expected to comply with judgments. If they don't, the plaintiff can go back to court and ask for an order that penalties will be forfeited in case of non-compliance.

In line with this, the 17 February judgment of the The Hague Court of Appeal contained a number of orders, but no penalties. Therefore, enforcement of the judgment was completed by its service on 19 February.

Therefore, the order by the Minister of Justice has no practical consequences and is actually a bit silly.

However, it is an unprecedented interference with the judiciary. If the Minister disagrees with the judgment of the Appeal Court, he can request the Procurator-General of the Supreme Court to file a Supreme Court appeal "in the interest of the law". That allows the Supreme Court to give its view on the issue, although such an appeal will not invalidate the court orders.

It is quite disappointing that the Minister of Justice seems to have taken this action.

Wouter Pors
Bird & Bird

Anonymous said...

"As such, then, the decision of the court stands."

Albeit rather limply.

Anonymous said...

@anonymous 11:24:00:

Limp it may be, but when you are up against an organisation such as ours, even taking the moral high ground is an achievement.

Anonymous said...

"However, it is an unprecedented interference with the judiciary."

Well as far as EPO affairs are concerned, not exactly "unprecedented" !!!

Anonymous said...

"I have come to the rather sad conclusion that European politicians wants Battistelli and his ilk to succeed - fine, but then don't spout platitudes about human dignity, fundamental rights, independence of the judiciary and so on; it's manifestly all poppycock. The powerful rule unhindered, and the rest of us will have to shut up and dance to their tune. Welcome in the 21 century!"

Well said. Time to end the "age of cant" !

Anonymous said...

Mr Pors,
Could it be that the EPO resized to accept the order on the basis that it is not allowed for the bailiff to enter EPO property without approval? The reception area is neutral territory in so far as the Dutch patent office also is in the building. There are barriers further along which require a pass. Has the office argued that leaving a letter at the reception desk cannot be a delivery in person?

TreatyNotifier said...

Just googling for the legal basis: the "gerechtdeurwaardersweg" (bailiffs law, http://wetten.overheid.nl/BWBR0012197/geldigheidsdatum_26-02-2015) states in Article 3a:
1.De gerechtsdeurwaarder die opdracht ontvangt tot het verrichten van een ambtshandeling stelt, indien hij redelijkerwijs rekening moet houden met de mogelijkheid dat het verrichten daarvan in strijd is met de volkenrechtelijke verplichtingen van de Staat, Onze Minister aanstonds van de ontvangen opdracht in kennis, op de wijze als bij ministeriële regeling is vastgesteld.
2.Onze Minister kan een gerechtsdeurwaarder aanzeggen dat een ambtshandeling die aan hem is of zal worden opgedragen, dan wel door hem reeds is verricht, in strijd is met de volkenrechtelijke verplichtingen van de Staat.
3.Een aanzegging kan uitsluitend ambtshalve geschieden. In verband met de vereiste spoed kan een aanzegging mondeling geschieden, in welk geval zij onverwijld schriftelijk wordt bevestigd.
4.Van de aanzegging wordt mededeling gedaan door plaatsing in de Staatscourant.


In other words:
i) a bailiff should inform the minister if he could suspect there is a possibility serving the judgement runs contrary to international obligations
ii) the minister may inform the bailiff that the activity runs contrary to intern. obligations
(..) iv the decision must be published in the "staatscourant" (https://zoek.officielebekendmakingen.nl), where I didn't find it (but I may not be using the right search terms)....

Anonymous said...

Background: Somewhat ironically, the Dutch minister assured parliament yesterday that he would ensure that top management in the fire service would have serious discussions with the firemen's unions with regard to changes in working practices. Mr. Opstelten thus is not anti-union per se (and is from a liberal VVD coalition party).

Wouter Pors said...

@Anonymous:

I don't know what the office has argued with regard to service.

However, going by the information on the SUEPO website, I assume that the bailiff has confirmed to SUEPO that service was completed on 19 February in acocrdance with Dutch procedural law.

The Minister of Justice's action only concerns the enforcement of the judgment, not it's validity.

@Treatynotifier:
The next two sections of Article 3a of the law are also interesting. The order interferes with future service and with past seizures of assets, but otherwise has no effect on past service of a judgment.

You mention that the order should be published in the official government journal. It should be added that it is open to judicial review and subsequent appeal to the administrative court under the Dutch Administrative Law Code.

Wouter Pors
Bird & Bird

Anonymous said...

Minister of...

...Justice...?

I have a copy of George Orwell's book for you all.

Anonymous said...

"Therefore, the order by the Minister of Justice has no practical consequences and is actually a bit silly."

Priceless.

Anonymous said...

In the UK, such a decision of a minister would be open to judicial review. What about in the Netherlands, dear colleagues?

Anonymous said...

Perhaps a phone call between friends?

Anonymous said...

Strange.

The Dutch authorities are sometimes a lot less afraid of the gods of immunity when it suits their interests, especially in their interpretation of the PPI and the Seat Agreement.

One example which comes to mind was the imposition circa 2005 of compulsory health insurance under the NL national scheme.

The EPO already provided complete internal coverage to staff and their dependents since 1978, but they were nevertheless required to set up a complicated two-tier system with a Dutch insurance plan (Delta Lloyd?) to placate the host country and its health reform.

OK, it helps to have the right kind of plastic card when you show up melting with fever at the A&E ward, but some foreign insiders assured me that whenever they could, they would rather drag themselves to Antwerp, or even Harwich or Cologne, and it's not an issue of language.

But SM Benoît has outlawed illness, as this lack of immunity against microbes is detrimental to production and the interests of the Organisation. Vive l'Empereur!

Anonymous said...

Politicians all over the Western world constantly bemoan the fact that the younger generation is turning its back on politics. I wonder why!

Anonymous said...

Merpel writes at the end of the blogpost that starts this thread: "At this point the opinions of the patent fraternity become less helpful than those of specialists in international law and Dutch constitutional law."

In fact, two such experts provide comment in the article published in De Volkskrant:

Senator Hans Engels says: "It is unusual for a minister to have this type of power. And I don't mean that in a positive sense."

Cedric Ryngaert, senior lecturer in international law in Utrecht says: "International organisations are putting themselves even more above the law, although it's already a problem."

Patentanwalt said...

We are trying to pass the following information and proposal among our clients, however they fear to be adversely affected by the EPO so we will seek to pass it through the EPI.
We must advise our clients that the future of the Boards of Appeal s is uncertain. Lack of business distribution scheme beyond March, rumors of the move to Berlin or Riga and the fact that some legal members are securing their return to the German legal profession are escalating.
Uncertainty of the appellate body is compounded by noticeable drop in quality in life sciences.
On the search reports appear the names of new examiners who seem to lack the knowledge on receptor biology and structure activity studies. Because the general number of applications in life sciences is dropping, this already indicates that most experienced examiners are not present anymore. We have been told that many experienced examiners strike and the productivity is kept by other examiners being transferred. We hear of galenics specialists with medicinal knowledge forced to work in polymers and cosmetics. Similar quality drop and new names are seen also in other chemical and biochemical areas.
Pharmaceutical patents have the highest litigation exposure and by its nature require very broad territorial protection where a handful of national routes may not be enough.
The pharmaceutical technical field in EPO withstood the EC Pharma enquiry 7 years ago and restored the trust and predictability of the patentability, especially in the secondary patents: enantiomers, polymorphs, regimes and formulations.
This certainty and quality seems to have eroded in last two years and is being replaced by contra-productive but measurable elements such as pendency. The limitations in the pharmaceuticals are imposed by the regulatory approvals which require clinical studies and not by the length of prosecution.

Anonymous said...

"This certainty and quality seems to have eroded in last two years ..."

How can anyone make such baseless and unfounded accusations ?

Quality at the EPO has never been better!

EPO Quality Dashboard 2014 – an excellent year
http://blog.epo.org/the-epo/epo-quality-dashboard-2014-excellent-year/

Anonymous said...

The English translation of the judgement is now available on suepo.org.

The reaction of the Dutch government is somewhat understandable as they try to establish The Hague as a preferred location for international organisations, and Dutch courts lifting the immunity of the organisations is obviously counterproductive in this regard.

Still it is somewhat disappointing that these (mostly financial) concerns apparently outweigh legal issues and the separation of powers. It is true that the Netherlands are bound by the EPC Immunity Protocol, but they are also bound by the European Convention on Human Rights, and if the two are in conflict it should be up to the courts to decide which one has precedence.

Anyway this also means that there will probably be little political pressure from the Administrative Council on the office to comply with the ruling, as even the state concerned appears to be happy with the office ignoring judgements of its own courts.

Anonymous said...

Hmmm.. " Opstelten finds his basis in some law of the ’70s."

Does anyone more legally qualified than me have any idea what "law of the '70s" came in so handy?

Some Input from the Protocol on Privileges and Immunities of the European Patent Organisation
(Protocol on Privileges and Immunities) of 5 October 1973 ... clearly the '70s ...

Article 1
(1)
The premises of the Organisation shall be inviolable.
(2)
The authorities of the States in which the Organisation has its premises shall not enter those premises, except with the consent of the President of the European Patent Office. Such consent shall be assumed in case of fire or other disaster requiring prompt protective action.

(3)
Service of process at the premises of the Organisation and of any other procedural instruments relating to a cause of action against the Organisation shall not constitute breach of inviolability.

Article 13
(1)
Subject to the provisions of Article 6, the President of the European Patent Office shall enjoy the privileges and immunities accorded to diplomatic agents under the Vienna Convention on Diplomatic Relations of 18 April 1961.

Article 19(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.

Anonymous said...

Anonymous @ 18.05 thought that
"Quality at the EPO has never been better!"

It must be, the management of the Office is now certified (ISO 9001)!

Patentanwalt said...

A year ago I discussed this with a director in Pharmaceuticals who was retiring at that time and predicted the errosion:

EPO has had an independent quality check, where a respected senior examiner regularly checked random files of the colleagues without them knowing it. There were also cross checks by the counterparts on other sites. This in-depth random quality check would be replaced by the chair of the examining division formally checking the file only after the file has been proposed to grant and given into the circulation by the division.

I was interested about the new system and if I may believe the examiner, it stroke me that in the previous system the examiner in charge did not know if he is being checked, while now he knows exactly who has put him into trouble and can return "the favour".

The dashboard you refer to, merely states that the chairmen of the division did not spot any problems within 15 minutes.

These chairmen responsible for quality checks are not only those you meet at oral proceeding but also relatively young examiners being with the EPO for perhaps only few years and not even having passed the EQE.

We are resorting to filing more and more third party observations, even after the examination has concluded just to get the clarity issues of the table and be able to consider the scope of the granted patents in our freedom to operate opinions.

Anonymous said...

@ Patentanwalt 17:52:00 The drop in quality is not limited to life science. A first general reason is "areas of competence": technical fields which used to be split across munich, the hague and berlin have been regrouped in one site without moving examiners, i.e. examiners had to suddenly start working in fields they do not understand. In life science examiners have to cope with an additional issue, which is that most "improvements" in IT search tools are developped for the mechanical/computer field and generate nothing but meaningless time consuming noise for life science. The biggest drop in quality is yet to come: the surge in production pressure, the contemptuous behavior of management towards staff and the ensuing dramatic loss of motivation, the "restructuring" of training for new examiners... Honestly, would you strive to do a proper job if you management neither cared nor gave you time or training for it?

Anonymous said...

The Netherlands as well as EPO play with fire.

Council of Europe - Resolution 1979 (2014)

Accountability of international organisations for human rights
violations see points 7.1 to 7.4 here: http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=21111&lang=EN

It worth reading also the Report especially part C and references to case law.

Another bombshell coming (it is provisional so far) is

Resolution 2033 (2015) - Provisional version
Protection of the right to bargain collectively, including the right
to strike -here: http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=21535&lang=EN

So the stakeholders instead of petitioning to EU should take the matter to CoE.

Regards,
The Insidious Insider

Anonymous said...

Anonymous at 22:14 said:
Accountability of international organisations for human rights violations see points 7.1 to 7.4 here: http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=21111&lang=EN

That appears to be a link to a reply, not the resolution. I found the resolution at:
Resolution 1979

Anonymous said...

@TreatyNotifier:
In other words:
i) a bailiff should inform the minister if he could suspect there is a possibility serving the judgement runs contrary to international obligations


Interestingly it follows from Art. 1(3) PPI that serving the judgment at the premises of the EPO is not a breach of inviolability.

I find it difficult to imagine that the mere service of the judgment could qualify as a breach of the EPO's immunity from execution, but the minister's order, if it gets published as it should, might surprise me.

Maybe taking formal action already at this stage is a bit silly, but in principle I do not find it surprising that the Dutch government decides that the EPO's immunity of execution should be respected. What is surprising and scandalous is that the EPO decides to use its immunity to achieve impunity.

Anonymous said...

Anonymous at 23:09:00 GMT said:
That appears to be a link to a reply, not the resolution. I found the resolution at:
Resolution 1979

The link I provided is correct. On that page you can find the Report and the Resolution. Just click the grey tabs to select one of the documents then download it either as HTML or PDF (upper right click on the header bar).

The Insidious Insider

Anonymous said...

There will be elections in The Netherlands next month - the 2000+ EPO employees there, who are usually not into dutch politics, may also consider to exercise their right to vote.

Anonymous said...

Well, that would be great if we could all vote: but only Dutch nationals can.

As an expat, I am only allowed to vote for the local water board - I am not sure that will shake the foundations of the Dutch state...

Anonymous said...

Anon 0933,
Wrong. I have received my Stempas which means I can vote.

Anonymous said...

Anon 10:35:

Only one? What colour is it? Blue? or Green?

A Dutch national will receive two: a blue one for the parliamentary election and a green one for the local waterschap (if it's being elected).

Do you have both?

Anonymous said...

In the EU european expats are entitled to vote on the local level (community) and one above that. On the national level only in the home country. On the European level either in rpthe country of residence or in the home country, not both.

Anonymous said...

As the non-Dutch expats are not allowed to vote in the upcoming "Provinciale Staten" election which is an indirect parliamentary election (for Senate, i.e. First Chamber), there is not much they can do in this respect.
Apart, of course, from bringing the rather hidden newspaper article to the attention of other Dutch news sources, and thus showing the Dutch what their minister of Justice thinks about human rights.

Anonymous said...

No representation without taxation!

Anonymous said...

"Apart, of course, from bringing the rather hidden newspaper article to the attention of other Dutch news sources."

The article is not as hidden as you might think.

Just Google "Opstelten" and "EOO" (Europese Octrooi Organisatie) and you will find that the news has travelled.

My favourite:
Opstelten (VVD): Ik weet het beter dan de rechter
http://www.joop.nl/politiek/detail/artikel/30972_opstelten_vvd_weet_het_beter_dan_de_rechter/

Apart from that, the Dutch SP is making political mileage out of the affair:
"SP: Regering mag mensenrechtenschending niet toelaten"
https://www.sp.nl/nieuws/2015/02/sp-regering-mag-mensenrechtenschending-niet-toelaten

In the meantime, the German Süddeutsche had an article today (27 Feb) which contained claims of political interference in judicial matters. So the story has crossed the borders ...

Anonymous said...

The SZ article in on page 19 of the ePaper edition over the byline of Christopher Schrader with the title "Recht haben und recht bekommen".

It concludes with:

Was weiter passiert, ist unklar. Einerseits kann das Patentamt zur nächsten Instanz gehen,dem obersten Gericht der Niederlande. Andererseits überlegt die Anwältin Liesbeth Zegveld, nun den Staat zu verklagen, der ihrer Meinung nach die eigene Justiz behindert. Womöglich könnte eine ähnliche Klage vor deutschen Gerichten Erfolg haben. „Die Staaten in Europa, auch Deutschland, hätten dem Abkommen über das Europäische Patentamt niemals zustimmen dürfen“, sagt der ehemalige Verfassungsrichter Siegfried Broß, „weil es die Grund- und Menschenrechte der Angestellten zur Disposition der Amtsleitung stellt.“

Anonymous said...

Anon 1805,
"Quality at the EPO has never been better!"
Indeed, ever since BB replaced the previous head of internal audit (and removed the external audit), the internal audit of quality (used to form the figures) has shown ever improving levels of quality. A happy coincidence no doubt.

Anonymous said...

Anon at 16:47:00 GMT

If you ever wondered what would be the outcome of BB's changes look here: http://www.washingtonpost.com/blogs/the-switch/wp/2014/07/31/inside-the-stressed-out-time-crunched-patent-examiner-workforce/

That is quality made in USA.


The Insidious Insider

ex-examiner said...

Likewise for the UKIPO. Its performance related pay regime, where a significant element of pay is linked to the office meeting ministerial targets, has resulted in one of the lowest "engagement indexes" in the civil service, and one of the highest sick absence rates. Then there was the farcical situation a couple of years ago of the office meeting all Ministerial Targets except "engagement index", and because this was one of the Ministerial Targets, staff were financially penalized for being unhappy with their work situation. The engagement index figure did improve the following year, but I do wonder whether this was a consequence of a genuine improvement, or the staff realizing that to give true comments on their feelings would be akin to turkeys voting for Christmas.

Anonymous said...

nothing said yet about R2/14?
see https://register.epo.org/application?documentId=EW70Z3VX6667684&number=EP99965105&lng=en&npl=false

Anonymous said...

Note the statement : "Dat laat onverlet dat de situatie onze aandacht en die van andere lidstaten heeft.'" Some kind of hidden threat, that the situation has the attention of the memberstates ?

Anonymous said...


TreatyNotifier said... "the decision must be published in the staatscourant" (https://zoek.officielebekendmakingen.nl)"

and yes, questions are being asked ...

https://zoek.officielebekendmakingen.nl/kv-tk-2015Z03533.pdf

Have answers been given ?

Anonymous said...

The Socialist party in the Netherlands has published a commentary entitled "Government must not permit human rights abuses".

It is available in English here:
http://international.sp.nl/news/2015/02/sp-government-must-not-permit-human-rights-abuses

Anonymous said...

"Have answers been given ?"

You might be waiting a wee while ...

The last time Kerstens and Maij submitted questions in the Dutch Parliament about the "French despot" (as he was called in De Telegraaf) on 1 July 2014.
The answers from the Minister were published on 15 August.

http://www.tweedekamer.nl/kamerstukken/kamervragen/detail?id=2014Z12450&did=2014D28306

Anonymous said...

Two members of parliament have now posed questions to the Dutch minister of justice (see here).

An imperfect translation:

Question 1. Are you aware of the Volkskrant article?

Question 2. Do you remember the earlier questions regarding the working conditions at the EPO? Is it true that the tense situation continues to exist, including the restriction of the right to strike?

Question 3. Is it true that the EPO refuses to revoke the controversial measures in accordance with the appeal court's judgment? If yes, what are the reasons therefor?

Question 4. Is it true that you are not willing to enable the judgment's execution as is usual in The Netherlands? If yes, can you explain your position? What is the legal basis of your power to prevent the judgment's execution? How often have you made use of this power in the last five years?

Question 5. On which legislation and international treaties does your decision to block the judgment's execution rely? Have you considered a more dynamic application of the existing legislation?

Question 6. Can you give an overview of recent European and Dutch jurisprudence relating to conflicts between immunity of international organisations and judgments of domestic courts?

Question 7. What is your reaction to the opinion of experts that your position is at odds with the rule of law and that you prioritise immunity over human rights? What is your reaction to the statement that this erodes the authority of the courts? What is your reaction to the statement that this leads to a further worsening of the existing problem of international organisations that place themselves above the law?

Question 8. What do you mean when you say that the matter has "our attention" and "that of other member states"? What does this attention consist of and what is it aimed at?

Question 9. Is it possible that one of the parties appeals to the Hoge Raad (Dutch Supreme Court) or that "cassation in the interest of the law" is requested? Do you intend to request cassation in the interest of the law?

Question 10. Have you taken note of the recent ILO agreement between employers and employees regarding the right to strike and ILO Convention 87? Can you explain how the situation at the EPO relates to ILO Convention 87?

Both members are from the Labour Party (PvdA) that currently forms a coalition government with the Liberal Party (VVD). In July 2014 they posed the earlier questions referred to in Question 2 above. Those were answered in August. The answered mainly referred to the EPO's immunity and the possibility for its employees to appeal to the ILOAT. Interestingly, the minister of social affairs answering those questions did seem to agree, referring to Art. 20 PPI, that the EPO should comply with relevent Dutch legislation. However, the labour inspection could do nothing without permission of the EPO's president.

Maybe the next series of questions can raise the possibility of international arbitration (Art. 23(1) PPI).

Anonymous said...

> indirect parliamentary election (for Senate, i.e. First Chamber)

These are very important elections since the First Chamber has veto right over law proposals of the Second Chamber, which cannot be overruled.

Anonymous said...

Article 19(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.

Can anybody think of how it may be in the interest of the EPO to abuse human rights?
Thus, the AC must remove the imunity of the EPO, wehn the president fails to do so.

Anonymous said...

The "Anzegging" can be accessed here:
http://www.suepo.org/archive/su15090cp.pdf

Google Translate gives a reasonable translation into English.

Anonymous said...

"Can anybody think of how it may be in the interest of the EPO to abuse human rights?
Thus, the AC must remove the imunity of the EPO, wehn the president fails to do so. "

How about the AC removing the immunity of the President ??????

Anonymous said...

Anon 1222,
No need for Google (other translation Web sites are available) as suepo provided a translation to en fr de in a note of 26.02.2015 at suepo.org

Anonymous said...

Question 8 in the original made reference to "andere EU-lidstaten", but the EPOrg also comprises non-EU members.

The Norwegian delegation apparently had second thoughts about the limitation of the right to strike which was being bulldozed through by Le Président. In the very few days which separated the submission of the regulations to the council and their adoption by a show of hands, the department of commerce asked the department of labour for its input on the proposal.

Here is the reply received two days later (cf. original page 1 and page 2):

Anmodning om innspill til forslag til regulering av streikeretten i EPO - Den europeisk patentorganisasjonen

Vi viser til henvendelse av 24. juni [2013] vedr. ovenfor nevnte.

Retten til å streike er regulert i flere internasjonale instrumenter som Norge har ratifisert, bl a ILO konvensjon nr 87 og nr 98 om retten til å organiseres seg og drive kollektive forhandlinger og Europa-rådets sosialpakt. Streikeretten ses som en naturlig og nødvendig følge av retten til å organisere seg og drive kollektive forhandlinger. Streik er imidlertid et kraftig virkemiddel og retten er derfor ikke absolutt. Adgangen til å streike og begrensningene i streikeretten har utviklet seg over tid og er nærmere definert av ILO og Europarådets ekspertkomiteer.

AD er ikke kjent med hvorvidt internasjonale organisasjoner har regulert streikeretten nærmere. I utgangspunktet vil vi ikke tro at dette er særlig vanlig fordi dette griper inn i et område som naturlig faller innenfor arbeidsgiver- og arbeidstakerorganisasjonenes forhandlingsområde. AD er derfor skeptisk både til en løsning med en administrativ regulering og til innholdet som ved en kjapp gjennomlesning synes ytterst tvilsom om er i samsvar med gjeldende internasjonale konvensjoner.

Vårt forslag vil være at Norge ber om mer info vedr. hvordan streikeretten er formulert i andre organisasjoner og at EPO ikke tar stilling til forslaget på det nåværende tidspunkt. En naturlig samarbeidspartner for administrasjonen i EPO ville være ILO office i Genève.


There is a bit of hedging in the tone of the answer, which suggests the postponement of the decision until more facts are known, and tries to kick the issue to ILO, but the implication is clear.

The Dutch MPs' question #10 also makes reference to ILO convention 87. My take is that ALL delegations, Dutch and British included, voted on this and other proposals, with full knowledge of the background and implications, and that the IPO's posture in this matter is somewhat disingenuous, to say the least.

Anonymous said...

The Dutch minister of Justice has had to resign! He is accused of having lied to the parliament about how much he had paid to a criminal. So nothing to do with the EPO. Nevertheless, now it is Opstelten, who is next? BB?
Pseudonanimous

KentzeNeke said...

Here's the news:

http://www.bbc.com/news/world-europe-31806086

http://www.volkskrant.nl/dossier-kabinet-rutte-ii/opstelten-en-teeven-stappen-op~a3893120/

Anonymous said...

King Louis XIV of France who ruled on the principle that ‘L’Etat c’est Moi,’ says today…

“The principle of sovereign immunity is an archaic hangover not consonant with
modern morality and that it should therefore be limited whenever possible”

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':