ILO Decisions Said To Confirm EPO Staff Lack Fair Legal System

The International Labour Organization Administration Tribunal (ILO-AT) on 30 November set aside two European Patent Office (EPO) decisions rejecting employee challenges to various internal rules. The judgments, which sent the complaints back to the EPO on the grounds that they had not been handled by the proper authorities, highlight the lack of a “fair and functioning” legal system for EPO staff, said a source who asked to remain anonymous.

[Update:] The EPO emailed that as in all cases, it “will duly consider and analyse the judgements handed down by the ILOAT.” The decisions concern procedural aspects of the EPO’s internal appeals system, in particular a decision taken under very specific circumstances and also the competent authority to deal with some management reviews, it said. “The Office achieved progress in this area these last years” and will “ensure that the internal system will continue to function.” [end update]

Appeals Committee Composition Improper

Judgment No. 3785 (available here: http://www.ilo.org/dyn/triblex/triblexmain.detail?p_judgment_no=3785) arose from the 18 December 2013 issuance by the EPO of a practice and procedure notice (PPN 05/13) concerning the documents that make up European patent applications, the ILO-AT said. In April 2014, complainant “F.” sought review of the notice, a request nixed by President Benoît Battistelli on the ground that it was “manifestly irreceivable.” F. then filed an internal appeal challenging, among other things, the PPN and its implementation, and asked again for a review. Battistelli rejected the request and sent the documents to the office’s Appeals Committee.

When the Appeals Committee chair decided to handle the appeals in a summary procedure, F. requested that his matter be characterised as a normal procedure. He also challenged the make-up of the Appeals Committee, arguing that it did not include a member nominated by the Central Staff Committee (CSC). In April 2015, the committee unanimously ruled that the appeal was manifestly irreceivable and treated it as a summary procedure, a decision backed by Battistelli. F. then asked the ILO-AT to void the Appeals Committee decision.

The tribunal found that considering the quasi-judicial functions of the committee, its composition is fundamental, and that changing it changes the body itself. “The balance sought to be achieved by the composition of this body, which includes members appointed by the Administration and the staff representation, is a fundamental guarantee of its impartiality,” the panel said.

Here, the committee wasn’t composed in accordance with applicable rules because two members were volunteers who weren’t appointed by the Staff Committee as specifically required. Thus, the ILO said, the decision rejecting F.’s challenge must be set aside and the case returned to the EPO for a properly constituted appeals committee to decide.

Administrative Council “Not the Competent Authority”

Judgment No. 3796 (available here: http://www.ilo.org/dyn/triblex/triblexmain.detail?p_judgment_no=3796) arose from an EPO Administrative Council (AC) decision (CA/D 10/14) introducing a new career system, the ILO said.

In November 2014, Battistelli floated a proposal for the new system to the AC, the office’s supervisory body. Among the proposals was one to replace the existing grade structure, in which jobs were divided into various categories, with a new “single-spine” structure comprising 17 grades, each of which would have up to five steps. The president also proposed amending the rules governing step advancement and promotion to emphasise performance rather than seniority. The AC endorsed the proposal in December 2014.

Employee “V.” then asked the AC to review the decision on the ground that it was “tainted with procedural flaws” and breached his rights and legitimate expectations with regard to advancement and promotion, the tribunal said. V. asked the AC to throw out the decision and to order Battistelli to submit a new proposal after proper consultation. Between 18 February and 12 May 2015, similar review requests were filed by nearly 1,700 other staff members, the tribunal noted.

In June 2015, under AC rules of procedure, the president argued that some of the requests were time-barred and that most, including V.’s, should be dismissed as manifestly irreceivable because they challenged a general decision which had to be put into effect by individual decisions and, as such, had no direct adverse impacts on the legal situations of the complainants. The AC later dismissed all of the review requests, a decision V. asked the ILO-AT to reject.

The tribunal noted that under applicable rules and a recent administrative decision, V.’s request had to be lodged and dealt with by Battistelli, who appointed him. “The Administrative Council should have recognised that it was not the competent authority at all and should have referred the request to the President,” the ILO said. It set aside the decision and sent the matter back to the EPO for the president to review within two months from the judgment date.

“Remarkable” Decisions

The judgments are “remarkable” for several reasons, said the source who wished to remain anonymous.

First, they show that the ILO is trying to clarify formal errors that upset procedures and cause major problems, said the source. In addition, both express criticism of the current EPO president, the source said.

Judgment No 3796 clarifies that “every single internal appeal” handled by the Appeals Committee in its current composition – from October 2014 to today – is legally flawed, the source said. That means that many cases will have to be dealt with again, after a new internal appeals system is created, the source said. To fix the flaw, the president will have to ask the CSC to nominate members for the committee, but because two members of the Appeals Committee have been demoted after disciplinary procedures were launched against them by the administration, the CSC has refused to act. “The ILO judgment puts pressure on” Battistelli to make concessions to the CSC, the source added.

In addition, under Judgment No. 3785, complaints by several hundred staff members against the new career system will have to be revisited, and those judgments will be delayed. Both decisions will likely figure into the 14-15 December AC meeting “since they show that employees’ justice is currently denied at the Office,” the source noted.

All of this is “bad for the reputation and credibility” of the European patent system, said the source. It’s also bad for the image of responsible governments such as France, the Netherlands and Germany, so “there will be a lot of pressure on the delegations to finally fix some issues.”

France “Anxious” About EPO Tensions

Philip Cordrey, a Socialist in France’s National Assembly, has monitored the situation at the EPO for some time. On 30 November he asked Christophe Sirugue, secretary of state in charge of industry, about the matter. Cordrey urged the administration not to be afraid to say that the presence of Battistelli, a Frenchman, at the head of the Office, “gravely harms the image of our country.” He asked what the government plans to do to reintegrate the employees who have been abusively fired and to ensure that the EPO is once again at the service of European industry and growth.

“Like you, I regard with a lot of anxiety the social climate,” which has strongly degraded over the course of the last two years, Sirugue said. Battistelli has chosen not to respect the direction adopted by the AC, he said, noting that he had conveyed his unhappiness about the situation to the president. France will continue, with other AC delegations, to put pressure on the president with regard to staff’s just causes, he said.

Image Credits: Oliver Kurmis