Dutch justice. The following Communiqué, issued by the European Patent Office (EPO) President, Benoît Battistelli, is so self-explanatory that it needs little comment other than to clarify some of the abbreviations. Its substance has already been the subject of a number of readers' comments on earlier posts -- and it may be useful to see exactly what is being said:
Waiving immunity - what is at stake? Judgment TH [= The Hague] Court of Appeal of 17.02.2015This moggy wonders what fate lies in store for the judges of The Hague Court of Appeal. Are the black plastic bags already being prepared for them? Are they being lined up for a discreet removal from their offices and their suspension as a "precautionary and conservative measure" while they receive lukewarm assurances that their judicial independence remains unimpaired and has indeed been both protected and enhanced?
Some days ago, a Court of Justice in the Netherlands, after a complaint introduced by SUEPO [the EPO staff union] - TH concerning the right to strike and the sending of mass emails, decided not to respect the fundamental principle of immunity of jurisdiction of the EPO as an International Organisation, the separation of powers included in the EPC, the Protocol on Privileges and Immunities [PPI], the Seat Agreement as well as general principles of law and ILOAT [= International Labour Organization Administrative Tribunal] jurisprudence. Additionally this judgement states not only for the case at stake in the Netherlands, but pretends to enforce it in Germany, Austria and Belgium as well.
"L'État, c'est moi"
Some might celebrate that a national jurisdiction endorsed the claims of an union. But such a violation of the legal features founding the existence of the EPO has so much far-reaching consequences than a simple additional episode in the dubious battle some members of the union pretend to fight against the Organisation.
International Organisations are specific entities by which founding treaties confer to the Organisation, as well as to their employees, privileges and immunities in order to fulfil their mission in full independence from national influence. Thus the EPO, like any other international organisation, enjoys through its PPI, immunity of jurisdiction and execution. Out of the same protocol employees of the EPO enjoy privileges as regard salaries, taxes and social package, as well as immunity when acting on behalf of the Organisation.
These principles guarantee the mere existence of the Organisation based on an international treaty ratified by 38 member states. Accepting that a national court disregards such founding principles would lead to an unacceptable legal uncertainty for the Organisation and its staff. It would let both in a legal vacuum as to which law should apply: EPC [= European Patent Convention] and our codex? National laws of the place of employment as if the EPO were a private multinational company?... In that case, different rules would apply to EPO staff members depending on their administrative residence not only for some social rules but following the same logics also for salaries, health schemes, allowances, pensions, etc.
"La chatte, c'est moi"
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.