Following a string of strikes last year and May and April this year, a further planned strike at the European Patent Organisation (EPO) has been ruled out by its President and is likely to lead to further unrest amongst the staff at the Organisation. Under the internal law of the EPO which recognises the ‘right to strike’, any strike is subject to the ‘terms and conditions’ stipulated by the EPO’s President that cover such matters as the strike duration and the voting process. The President has acted to prohibit a three-day strike protest planned for later this month on the grounds that it would create confusion at a time when new staff representatives were being elected.
In a ruling on 14 January 2014 the District Court of The Hague ruled that the Trade Union of the European Patent Office (VEOB) and the Staff Union of the European Patent Office (SUEPO) are entitled to bring actions before the national court in their own right against the EPO and rejected the plea of immunity by the EPO. Whilst it was common ground between the parties that EPO itself was subject to “primary sources of law such as the customary international law, the fundamental rights acknowledged in international conventions and other universally recognised legal principles” the EPO put forward a primary line of defence that it has immunity of jurisdiction.
The Hague Court found that it did have jurisdiction to hear the claim in large part because the VEOB and SUEPO are not able to challenge decisions under the EPO dispute settlement scheme in the Service Regulations and furthermore rejected claims by the EPO that the VEOB and SUEPO could not bring actions in their own right. Once the two unions were established as legal entities the Court said “the right to take legal action independently arises automatically from this”. The Hague Court distinguished the ECtHR decision of 11 June 2013, case number 65542/12 (Mothers of Srebrenica) restricting the scope of that decision on immunity to apply to the UN specifically in the performance of its peacekeeping duties.
The two unions lost the claim on the merits that the EPO Service Regulations are excessively restrictive when judged against the relevant international treaties and customary law on the right to strike. It was decided that the remedy sought would only apply to that part of EPO in the Netherlands and create ‘a fragmentation of the Patent Office’ but Neil Macaulay of Bretton Woods Law believes the importance of the decision is that it demonstrates once again the unwillingness of the national courts to allow the immunity from suit to be relied upon by an international organisation in circumstances where the organisation has not provided an effective internal system of justice to resolve disputes; in this case those brought or taken by Staff Associations or Unions.
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