Dear SUEPO Members, dear Colleagues
As you remember, to defend the interests of its members when attacked by President Battistelli, SUEPO sought protection from the Dutch courts in the form of an injunction. An injunction is meant to prevent a violation of rights likely (if not certain) to cause irreparable damage. Disappointingl y, the Supreme Court of the Netherlands upheld the EPO’s immunity.
A host state has a heavy duty of care. On the one hand, it must take reasonable steps to safeguard the immunity of an international organisation, when such immunity is necessary for the lawful operations of the organisation. On the other hand, the host state must see to it that all individuals within its jurisdiction have effective means to protect their rights when menaced.
When the legal system applicable to an international organisation does not provide for protection in the form of an injunction, which is essential to prevent irreparable damage, and even worse when it is virtually indisputable that the organisation is violating rights, the host state has a serious difficulty. In our opinion, it has only two options: either to lift the immunity of the organisation for the benefit of a party aggrieved, or to take itself action against the rogue organisation by resorting to international arbitration (in the EPO’s case, Article 23(1) PPI).
Being unwilling to do either, in our opinion The Netherlands have failed (so far) to discharge their duty of care, thereby allowing a breach of fundamental rights on their soil and de facto condoning, if not endorsing, the EPO’s abuses.
Therefore, on 8 May 2017 SUEPO has filed a complaint against The Netherlands before the European Court of Human Rights.
As usual, we will keep you informed of any essential development.
Your SUEPO central
In its 123rd session the Tribunal delivered a total of 97 judgments, of which 33 cases involving the EPO. Of the EPO cases, only 3 cases were partially won by the complainants. Of the remaining cases 13 were summarily dismissed. In the 123rd session the Tribunal again stressed that it will only judge on “individual” decisions, thereby confirming its unwillingness to exercise normative control. Its tendency to send cases back to the EPO further contributes to the backlog at the EPO and at the Tribunal.
 The high number of Judgments dealt with in this session made it impossible to report on all cases and forced us to ignore some cases that would have merited a discussion.
 Only cases that were won on the substance are considered as won. Cases that only led to an award of costs and damages for procedural delays are considered lost. Note that whereas many cases are fully (even summarily) dismissed, the few cases that were won are only partially won. The present paper discusses selected cases and the overall implications.
Press Release - STAFF UNIONS VEOB AND SUEPO TAKE CASE ABOUT STRIKE TO ECHR.
Amsterdam 8 May 2017 – Today, two staff unions at the European Patent Agency, VEOB and SUEPO, filed a complaint against the Netherlands with the European Court of Human Rights (ECtHR) for violation of article 6 ECHR in combination with articles 10, 11 and 13 of the Convention.
The unions are represented by lawyer Prof. Liesbeth Zegveld.
JUDGMENT OF THE DUTCH COURT OF CASSATION IN SUEPO v EPO ISSUED ON 20 JANUARY 2017
Dutch courts have no jurisdiction in European Patent Organisation dispute
The European Patent Organisation can invoke jurisdiction immunity in a dispute with trade unions. That is the ruling issued by the Supreme Court 5 today, and means the Dutch courts have no jurisdiction to examine disputes brought before them between the European Patent Organisation (EPOrg) and two trade unions: the Trade Union of the European Patent Office (VEOB) and the Staff Union of the European Patent Office (SUEPO). Previous rulings by the court in preliminary relief proceedings and the Court of Appeal in The Hague 10 have been set aside by the Supreme Court.
We are disappointed to inform you that the Supreme Court of the Netherlands has decided to uphold the EPO’s immunity in the case brought by SUEPO to complain about infringement of fundamental rights.
At the request of SUEPO, Bretton Woods Law produced a legal opinion concerning the actions of the President of the EPO, and the responsibility of the Administrative Council as well as the Member States of the EPO with respect to staff.
In an Annex to the above document a number of the reforms are considered in the light of basic legal and democratic standards in Europe.
See here for a critical commentary Ms. Anne-Marie THEVENOT-WERNER on two recent ECHR judgments that concern violations of human rights in international government organisations. The article is in French.
In its decisions Perez and Klausecker rendered on 6 January 2015, the European Court of Human Rights reaffirms its case law derived from the decisions Waite and Kennedy and Bosphorus. However, the way it applies the principles allowing the Court to engage a State’s responsibility for violations of the human rights protected by the European Convention on Human Rights may lead to an erosion of the obligation of a State to protect these rights, as the Court seems to require implicitly their protection to be “manifestly deficient”, including in the framework of the proportionality test developed in the decision Waite and Kennedy. In the end, the Court protects in any way possible the autonomy of International Organisations. This might lead however to the hardly desirable consequence that International Organisations and their Member States are free not to apply the same standard of human rights protection as the Convention offers to acts and omissions of the Organisation – even to Organisations where all Member States are a Party to the Convention.
Art. 13 of the European Patent Convention stipulates that employees of the EPO may apply to the Administrative Tribunal of the International Labour Organisation (ILOAT) in case of disputes with their employer. ILOAT is suffering from increasing backlogs. The staff representation of the EPO addressed the matter in a document submitted to the EPO's Administrative Council and in a letter addressed to the Director-General of ILO. The reply of the Director-General of ILO is available here.