UN agency sets aside two EPO decisions, criticises Administrative Council
The Administrative Tribunal of the International Labour Organization, a UN agency, has set aside two decisions made by the European Patent Office (EPO) and criticised the Administrative Council in the process.
On Wednesday, November 30, the tribunal dismissed the rulings, which had rejected employee challenges to internal rules.
The first decision, judgment number 3785, stemmed from a practice and procedure notice, which concerned the documents that make up European patent applications, issued by the EPO in 2013.
In April 2014, employee ‘F’ requested a review of the notice. Benoît Battistelli, president of the EPO, rejected the request, calling it “manifestly irreceivable”.
In August, F lodged an internal appeal challenging, among other things, the notice and its implementation. He filed another request for review in October.
Battistelli rejected the request, sending the documents to the EPO appeals committee.
F then requested that his internal appeal should follow what he characterised as a normal procedure. He also challenged the composition of the appeals committee on the basis that it “did not include a member nominated by the central staff committee and he asked to be heard by a duly constituted appeals committee”.
In April 2015, the appeals committee unanimously considered the appeal to be “manifestly irreceivable”.
Now, the tribunal has held that the committee was not “composed in accordance with the applicable rules”, as two members were volunteers and not appointed by the staff committee.
The appeals committee’s decision was set aside and the case has been returned to the EPO.
In the second decision, judgment number 3796, the case arose from an Administrative Council decision introducing a new career system proposed by Battistelli.
The proposal involved replacing the existing grade structure and amending the rules governing advancement and promotion, “so as to place greater emphasis on performance, rather than seniority”.
Employee ‘V’ requested a review, arguing that it was “tainted with procedural flaws” and that it “breached his acquired rights and legitimate expectations” concerning advancement and promotion.
He asked the Administrative Council to revoke the decision and to order Battistelli to submit a new proposal after a proper consultation process.
Between February and May 2015, similar requests for review were filed by 1,696 other employees.
Battistelli submitted an opinion on the requests for review, arguing that 64 of them should be dismissed as time-barred, and that the remaining requests should be rejected as “manifestly irreceivable”.
The Administrative Council decided to dismiss all of the requests for review.
The tribunal has now held that V had been appointed by the president and so his request had to be dealt with by Battistelli.
It added: “The Administrative Council should have recognised that it was not the competent authority at all and should have referred the request to the president.”
A source close to the Staff Union of the European Patent Office said: “This decision is the result of the current direction which systematically ignores the competence of its highly educated staff in general and their representatives in particular.”
They added: “Unfortunately we were right (again) when we said that EPO staff have no recourse to a legal system of justice. The rule of law must be restored at the EPO.”
A spokesperson for the EPO said: “As in all cases, the EPO will duly consider and analyse the judgments handed down by the tribunal, which is the court competent to hear disputes of EPO employees on their terms of employment.”
They added that the decisions concerned 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”.
“The office achieved progress in this area in these last years. It will ensure that the internal justice system will continue to function,” said the spokesperson.
