EPO management fails to allow mass emails, despite ILOAT judgment

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Six months after ILOAT judgment No. 4551, ruling that measures restricting mass emails at the European Patent Office were contrary to the freedom of communication and must be set aside, the EPO management has failed to execute the judgment and has tried to restrict mass emails in other ways.

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The Central Staff Committee (CSC) of the EPO sent letters about the case (see also this earlier blogpost) to EPO president António Campinos on 29 July, 6 September and 28 October 2022. In the first letter it demanded immediate execution of Judgment No. 4551, issued on 6 July 2022, and reinstatement of the former rules on mass emails in force prior to 31 May 2013.

In its open letter of September, the CSC wrote that two

months after the ruling of the Tribunal, it had still not been executed. The CSC pointed out: ‘We note that mailing lists for sending mass emails to more than 50 staff members, e.g. DDL-ALL-STAFF(-XX), already exist in the EPO standard email system. Such mailing lists can be easily selected from the available address book and inserted into the recipient field. However, when the sender is a Staff Committee or one of its members, sending of the email is technically blocked. The same applies upon inserting more than 50 individual addresses as recipient from the available address book.’

According to the CSC's open letter of October, despite stating ‘that the Office is committed to executing Judgment No. 4551 of the Tribunal as swiftly and comprehensively as possible’, president Campinos ‘decided to maintain the limit of the number of email recipients to 50 and to add a “new feature” as a precondition for executing the judgment, i.e. to introduce a right for staff to unsubscribe from the relevant mailing lists. You try to justify the additional constraint imposed on the CSC with the right to privacy and data protection.’

The CSC points out: ‘We note that you obviously chose to not invoke data protection and respect for private life before the ILOAT, so that there is actually no place for additional privacy pleadings at this stage.’ After setting out, among others, that the EPO Service Regulations ‘already contain provisions to protect fundamental rights and freedoms as well as personal data of employees in the course of their official activities’, the CSC concludes: ‘In short, there is no need and no legal basis for any additional limitation on our right to communicate.’

Apparently, the EPO management has proposed to hire an external service provider managing distribution lists and has sought the opinion of the Data Protection Officer (DPO) on the matter. The CSC writes it regrets ‘that her independence has led her to ignore the judgment and depart from the letter and spirit of the Service Regulations and the Data Protection Rules (DPR)’. It reiterates ‘the demand made in two previous letters for the immediate execution of Judgment No. 4551, in its entirety and without any additional obstacles, which have no legal basis or justification whatsoever.’

The EPO declined to comment.

Tags: EPC, EPO
Comments (18)
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Simona Fonzi
November 8, 2022 AT 2:19 PM

The EPO is worse than Musk not tolerating workers unions at Tesla.

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Concerned observer
November 8, 2022 AT 4:31 PM

So what is the practical consequence of the EPO disregarding an ILOAT judgement (and thereby continuing to infringe the right to association of its staff)? The AC has now been asleep at the wheel for over a decade, and has recently given up even pretending to act as the EPO's independent overseer. There would therefore seem no point asking the AC to step in to ensure that the EPO respects the rule of law. But to whom else can the EPO's staff turn? Would the EPO's blatant disregard of ILOAT judgements provide an opportunity to ask the Dutch Supreme Court to revisit their infamous judgement on the EPO's immunity from suit? I have my doubts. In any event, it is interesting to observe how an international body tasked with implementing laws can effectively "go rogue" (by failing to uphold the rule of law, rendering their governing laws meaningless by interpreting them according to their wishes, etc.) without giving rise to even the slightest signs of concern amongst the member states. And yet this is the very organisation that will soon be entrusted with even more powers (regarding "unitary" patents). Given the weaknesses and flaws in the governance structure of the UPC (even compared to the EPO), I shudder to think what might happen if that organisation were to similarly "go rogue".

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Enough is enough
November 8, 2022 AT 4:33 PM

The present attitude of the head of the EPO illustrates best that immunity is considered as giving impunity when refusing to apply a clear judgement of the ILO-AT. It actually boils down to contempt of court when a further condition is added which has never been envisaged by the court. If people do not like messages from the staff representation, there is a delete button on every keyboard. The attitude of the head of the EPO and its minions is despicable. But he has the support of a majority of the AC. One actually wonders why? If one knows that the DPO is employed on a contract basis, one cannot expect a document emanating from the DPO being contrary to the wishes of the president. I am convinced that it is not the DPO who has thought of this extra hurdle but the (un)human resources management. What is going on at the EPO is tragic, and the success story of the EPO is getting ruined by pseudo managers who think they can act as if we were still in the 19th century. How can anybody expect that examiners and their immediate support staff can work with a free mind in such atrocious conditions. I am not surprised that the EPO experiences difficulties in recruiting examiners.

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Concerned observer response to Enough is enough
November 8, 2022 AT 5:53 PM

Contempt of court? Well, not quite. Regarding execution of its judgements, the ILOAT's website contains the following advice: "The Tribunal’s judgments carry the authority of res judicata and must be executed as ruled. The parties must work together in good faith to this end. In cases where no time frame is set by the Tribunal for the execution of an order, the judgments must be executed within a reasonable period of time. In order to ascertain whether this is the case, all the circumstances of the case must be taken into account, especially the nature and the scope of the action which the organisation is required to take (see, in particular, Judgments 3656, consideration 3; 2684, considerations 4 and 6; and 3066, consideration 6). If there are serious reasons to believe that the defendant organisation will not honour its obligations or will delay execution, the complainant may, after having allowed the organisation a sufficient and reasonable period of time to execute the judgment, ask the Tribunal, by an application for execution filed pursuant to Article VI(1) of the Statute, to rule that the organisation has failed to do so and to order that appropriate measures be taken. An application for execution must satisfy the formal requirements provided for in the Rules; the party applying for execution should fill in a specific form available on the website of the Tribunal, write a brief, provide a list of annexes as well as the annexes themselves, and submit six copies of all these documents. These applications are not subject to time limits, nor is there any obligation to exhaust internal means of redress before filing the application". Article VI(1) of the Statute states that: "The Tribunal shall take decisions by a majority vote. Judgments shall be final and without appeal. The Tribunal may nevertheless consider applications for interpretation, EXECUTION or review of a judgment". It therefore seems that ignoring an ILOAT judgement has no consequence unless and until an application for execution is filed and then decided by the Tribunal. Even then, success for a complainant is far from certain, as they must demonstrate "serious reasons" to believe that execution of a judgement will be (further) delayed. No doubt this will give international organisations plenty of opportunities for gaming the system, for example by teasing possible solutions that arguably do not comply with the judgement in question. Moreover, even presuming that the Tribunal decides promptly and in the complainant's favour, it is unclear what "appropriate measures" the Tribunal can take. This is not least because the ILOAT would seem to have no power to impose anything other than financial sanctions. Also, it is important to remember that, at any point, the EPO is free to withdraw its recognition of the ILOAT's jurisdiction. So what can be done? Well, one thought would be to see if a way can be found to get the case before the CJEU (eg in view of the EU's Charter of Fundamental Rights, as applied in cases such as C-402/05 P). But that presupposes the existence of a national court that will take the case (despite the immunities of the international organisation) AND be willing and able to make a reference to the CJEU. This seems unlikely. It has been observed in academic writings that the only way that laws applicable to international organisations can be enforced is either by the organisations themselves, or through political pressure of their members. When it comes to the EPO, this means that there is no way for the laws to be enforced.

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Enough is enough response to Concerned observer
November 9, 2022 AT 3:04 PM

Dear Concerned observer, When i wrote my comment, I was fully aware that the ILO-AT was not an ordinary court. The ILO-AT has no real means of enforcement if its decisions are not implemented. And the EPO is playing with it. It is remarkable that the ILO-AT is literally flooded with motions stemming from EPO staff members. There have been discussions between EPO's management and the ILO-AT to see if something could be done. But to no avail! The EPO's management even envisaged to levy a fee if a staff member wanted to go to Geneva. It is tragic to see "that there is no way for the laws to be enforced". The AC is rubber stamping what comes from the 10th floor of the Isar building, That a new member state will join the EPC can even render things worse, as this further state will be very keen to get a part of the "cooperation" budget! The EPO is indeed free to withdraw its recognition of the ILOAT’s jurisdiction. But then EPO's staff would be subject to the arbitrary decisions of the president. He is by no means bound by a decision of the internal appeals committee and can even aggravate sanctions if he is displeased with the result of the internal appeal committee. This has happened, so it is not a mere theoretical possibility. After the salaries and pensions having been frozen for a while on the basis of a fake financial study and an amendment to the way salaries have been calculated, a salary increase is foreseen to compensate for the inflation. But the president has already announced that the production will have to increase with in parallel with the salary increase. This is typical of what was going on in the 19th century. The salaries at the EPO are by far not as good as they used to be. Combined with the fact that an open ended contract can only be obtained after two five year contracts it also explains why the EPO experiences difficulties in recruitment. When looking at the way the job of an examiner is presented on the EPO's home page, nice buzzwords are used, but nowhere is anything mentioned about the 5 years contracts and the way disputes between staff and management can be settled. A good scientist or engineer with some knowledge of foreign languages is not dependent on the EPO to find a good job. Very few candidates with a family and kids will envisage coming to the EPO and at the same time severing any ties with the social protection and pension system from its country of origin.

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