AT-ILO

Criticism of the internal justice system of the EPO is not new. Märpel found a document dated 18/12/2013 and titled "report - epo internal justice system". It is available on the suepo web site at: https://suepo.org/documents/37867/46475.pdf You may need to a password to access it, however.

The following is directly taken from that document, comments from Märpel are at the end.


The document starts with this "executive summary": Access to justice for staff of the EPO exhibits a number of serious deficiencies:

1. There are problems with the functioning of the internal appeal processes, and the ILOAT. A clear lack of independence exists within the internal appeal process (1). This is exacerbated by an increasing trend of the President to reject the opinion of the IAC (2). Problems exist with regard to disclosure and evidence taking. The ILOAT does not correct these errors since it does not carry out fully independent evidence gathering; rather it relies on the pleadings of the parties and the opinion of internal bodies.

2. There exist weaknesses with regard to the protection of fundamental employment rights and standards. No such rights are recognised as binding on the EPO. This creates a vacuum in which the EPO has wide discretion to introduce legislation, or to interpret/apply existing legislation which is not consistent with such fundamental rights. Recent examples are the regulations on strikes, and the so called "well-being" regulations which deal with sick leave control. The ILOAT does not provide protection of these rights since it primarily limits itself to the application of the internal regulations of the EPO (3). The Tribunal claims to protect "general legal principles including human rights" but does not define what these are. When a staff member claims protection of a fundamental right, the Tribunal systematically rejects this claim stating that such rights apply to the member states and not the organisation.



The body of the document continues with a description of the internal appeal system:



The legal protection system of the European Patent Organisation consists of two parts: internal bodies such as the Internal Appeals Committee (IAC) which advise the President, and the Administrative Tribunal of the ILO (ILOAT).
When considering the independence and impartiality of the internal mechanisms, it should be noted that all internal bodies have an advisory character; it is the President alone who decides. This means that when taking a decision regarding an appeal, the President must review a previous act or decision taken either by himself, or under his authority. Put another way, he is both the Executive head of the EPO (Office) and final Judge in case of an appeal. To be truly impartial under these circumstances would require extraordinary qualities.

For this reason although the internal bodies can help resolve many problems, it must be recognised that formally they are all management review mechanisms and should not be confused with proper judicial review. Nevertheless, staff are required to exhaust these internal means prior to making an appeal to the ILOAT.
Despite their lack of independence, internal mechanisms can help with fact finding, however, this is not without limitation. The President (or the Office) can withhold information or even make false representations to such bodies without any serious consequences. No means exist to hold the Office or individuals to account for such actions. Neither are there any means to provide urgent protection where needed, for example injunctive measures.

There are some measures which aim at securing the impartiality of the IAC inter alia:
the members are prohibited to seek or take instructions and that the Committee has a quasi-paritary structure in which both the President and the Staff Committee nominate members. However, a number of factors can undermine the quality and impartiality of the process:
- the President is a party to the appeal process however, he alone decides on the outcome;
- the committee is not truly paritary: the President nominates 2 members and the Chairman, whereas the Staff Committee nominates only 2 members;
- the President is the supervisory authority for all members; and as such indirect pressure may exist (4)
- the President controls all resources available to the appeal process;
- there are no obligations upon the Office to disclose facts or means to prevent false representations by the Office.

The recommendation of the IAC, even where this is unanimous, is not formally binding; the President may amend the recommendation or simply replace it with his own. The ILOAT has ruled that the President must take the opinion into account and provide reasons for deviating from it, however, the case law is divergent with regard to the justification of such action (5)

The Staff Committee has received feedback from appellants that in an increasing number of cases during 2013 the President has not followed unanimous and majority opinions from the IAC. For 2013 there were 12 majority or unanimous opinions to allow the appeal, and a further 16 to be allowed in part. According to information received the President has not followed the majority of these opinions.


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Comments from Märpel:

(1): This was written in 2013. In 2018, that lack of independence is plainly obvious as the IAC simply always decides in favour of President Battistelli
(2): Ditto. Nowadays, President Battistelli has no need to reject an opinion which is invariably in his favour.
(3) and (5): Märpel shall come back to this, taking recent judgments of AT-ILO as examples.
(4): or retribution. Remember the many managers made redundant in 2017? All the former members of the IAC who did not follow the recommendations in early years were made redundant.