Historical Judgments of the Administrative Tribunal of the International Labour Organisation (ILOAT) on the fundamental right to strike breached by the European Patent Office (EPO).
On 7 July 2021, the ILOAT ruled that the EPO strike regulations put in place since 1 July 2013 created a regime placing several limitations on the exercise of the right to strike which was unlawful because it violated the fundamental right to strike. After 8 years of breach of a fundamental right at the EPO (including 3 years under the mandate of a new President), it is now time to take the consequences and to repair the damage done to the Organization and its Staff.
In its 132nd session the Tribunal delivered a total of 43 judgments, of which 25 concern the EPO.
The encouraging news from this session are that the following cases, concerning the right to strike at the EPO, were all ruled in favour of the complainants:
- Judgments 4430, 4432 and 4434 on the EPO Circular 347 (“Circular on Strikes”)
- Judgments 4433 and 4435 on deductions of 1/20th per day of strike.
Among these judgments, Judgment 4430 is fundamental, because it has a general scope, defining and restating some universal principles relating to the right to strike in International Organisations. Furthermore Judgement 4430 considers that the EPO Circular 347 on strikes is unlawful and should be set aside.
This is a clear legal victory for the complainants, the Staff of the EPO and SUEPO (Staff Union of the European Patent Office) which supported some complainants all along.
In June 2013, following a proposal of former EPO President Benoît Battistelli the Administrative Council adopted document CA/D 5/13, which created a new Article 30a of the Service Regulations relating to the right to strike.
This new Article 30a sets out some basic rules concerning strikes. Its paragraph (2) defines a strike as “…a collective and concerted work stoppage for a limited duration related to the condition of employment.” Paragraph (3) states that a strike may be called by “ A Staff Committee, an association of employees or a group of employees….”. Paragraph (4) says that “The decision to start a strike shall be the result of a vote by the employees”, and finally paragraph (10) authorises the President of the EPO to “…lay down further terms and conditions for the application of this Article to all employees; these shall cover inter alia the maximum strike duration and the voting process”.
On the basis of this last provision of Article 30a, Circular 347 (”Circular on Strikes”) containing “Guidelines applicable in the event of strike” was issued and came into effect on 1 July 2013.
Here are the most challenged paragraphs of Circular 347:
- Strike: “… industrial actions … such as go-slow or work to rule shall not be considered as a strike…” and consequently they shall not be granted the same protection.
- Call for a strike: “…or a group of employees representing at least 10% of all EPO employees may decide to call for a strike”
- Decision to start a strike: “…The voting process shall be organised and completed by the Office…”; “…to be valid, at least 40% of the employees entitled to vote shall participate to the ballot. The decision to start a strike has to be approved by a majority of more than 50% of the voters”
- Duration of the strike: “… The duration of the strike shall not exceed one month…..”
- Deduction of remuneration: ”… For participation in a strike for more than four hours …a deduction of 1/20th of the monthly remuneration”
SUEPO and EPO Staff and their representation strongly opposed and criticized these new strike regulations, which remain unprecedented in International Organisations and which constitute an undeniable attack on the fundamental rights of employees. Their criticism was followed and shared by external stakeholders and the public.
Among them, Sylvie Jacobs, Chairperson of the USF at the time, condemned the new regulations and wrote an article on USF newsletter AGORA in January 2014. She said inter alia: “ EPO President Battistelli’s HR policy reveals a serious lack of understanding of fundamental rights of workers, in particular their right of association in the form of a trade-union”.
In September 2013 requests for review were filed by the complainants, followed later on by a 6 year long internal procedure in front of the EPO Appeals Committee and finally by complaints filed at ILOAT at the end of 2019. The long delays to obtain a decision in favour of restoring a fundamental right show that the EPO internal justice system is not adapted to complaints of this political nature.
As already said, Judgment 4430 is fundamental, and the considerations can be extended to all International Organisations. The present paper will deal only with details of this case.
Below are some of its more relevant considerations; the following does not want to be a legal analysis of the judgement, but only an explanatory overview of it:
Consideration 13: “… a strike … is a tool employees have to redress imbalance of power…”; “… absent a right to strike, it is open to an employer to ignore entreaties by employees advanced collectively to consider….their grievances….”
Nota: this could put in jeopardy the validity of the regulations introduced from July 2013 till today at the EPO. More in general it could put in jeopardy the validity of regulations passed while fundamental rights of staff are not respected.
Considerations 14 and 15: “… a general decision cannot be challenged … until an individual decision is taken…”, however since Circular 347 had an immediate and adverse effect on individual rights (the right to strike) from its promulgation, the general decision can be challenged in this case.
Nota: this is interesting because it confirms that a complainant can directly challenge a general decision when the general decision has an immediate and adverse effect on the complainant.
Consideration 16 (Lawfulness of Circular 347):
- Regarding paragraph 1:
The circular travels beyond the definition of strike in the Service Regulations; “…it cannot do so as a subordinate normative legal document…”
“ …“go slow” and “work to rule” are legitimate forms of industrial action protected by the ordinary conception of the right to strike ….”
- Regarding paragraph 2:
The imposition of a minimum of 10% of employees who can call for a strike is illegal, because it amounts to deprive a group of less than 10% willing to strike of the right to strike.
- Regarding paragraph 3:
The condition that “at least 40% of the employees entitled to vote shall participate to the ballot” is unlawful, because it allows a majority of staff to deprive a minority of the right to strike.
“…the requirement that the vote be conducted by the Office violated the right to strike. Employees themselves should be able to make arrangements for the vote…”
- Regarding paragraph 4:
“the time limit placed on the duration of strike violated the right to strike. Striking staff should be able, themselves, to determine the length of the strike.”
“Having regard to the aforementioned violations of the right to strike, which infect Circular 347 in its entirety, the Circular is unlawful and should be set aside”.
The Tribunal in Judgment 4430 only deliberates on the lawfulness of Circular 347 and does not discuss the legality of the Service Regulations, because it feels unsure, in its present composition, “whether it has jurisdiction to set aside a provision of the Service Regulations” (cf. consideration 11 of Judgment 4430). It is however abundantly clear that the provisions of the Service Regulations, like for example paragraph (10) of Article 30a, are unlawful and inapplicable.
It took 8 years among which 6 years in a lengthy and exhausting internal procedures, to have one of the most fundamental right of employees – the right to strike – finally be restored in its entirety by the ILOAT. The unfair EPO regulations imposed by the previous administration and let in place by the present are now declared unlawful and set aside.
Despite many attempts by SUEPO, in these 8 years, to have the new regulations on strike discussed, amended and brought in line with international standards, the former and present Administration of the EPO decided instead to strictly follow the litigation path till the end. For the new Administration, now in charge since 3 years, it has been a missed opportunity to restore the Rule of Law and a genuine social dialogue at the EPO.
During all this time the Administrative Council turned a blind eye on these flawed regulations and failed in his duties and responsibilities as supervising authority. It should be stressed that the EPO – like any other international organisation -, while having a jurisdictional immunity, is “…subject to the obligations inherent in human rights…” as stated in Resolution 1979 (2014) of the Council of Europe.
These last ILOAT judgments will surely have an important and long lasting impact on the Staff regulations at the EPO and probably in most International Organisations. Let’s hope EPO management will finally revise its HR policies and its way of dealing with Unions and Staff representation in the future with a true genuine Social Dialogue.
Some interesting further readings:
SUEPO publication on the ILOAT judgements, 29/07/2021.
“Jurisdictional immunity of international organisations and rights of their staff”, Report of the Council of Europe, 11/10/2017, paragraphs 18 and 19.