European Patent Office (EPO) employees will go on office-wide strike for seven days, starting on 21 March. The move follows an increasingly tense stand-off between the Staff Union of the European Patent Office (SUEPO) and President Benoît Battistelli over, as a union document put it, timely access to justice, freedom of speech and freedom of association. The deteriorating relationship between employees and office officials prompted one French lawmaker to ask government ministers to rethink their country’s support for Battistelli’s reappointment. If unresolved, the labour issues could end up subjecting the EPO to closer scrutiny as it prepares to administer the EU unitary patent, one source close to the situation said.

Battistelli said he won’t try to stop the strike despite disagreeing with the grounds advanced to support it. In written answers, he cited a long history of “very conflicting social relations” at the EPO and defended his efforts to improve the situation.

The number of employees entitled to vote in the 13 March vote was 6,803, and the necessary quorum 2,722, a 3 March document obtained by Intellectual Property Watch said. The total number of votes cast was 4,119, the total number in favour of a strike 3,697. There were 266 no votes and 156 “no opinions.” The number of votes for a strike represented 90 percent of the total votes cast. Strike days have been set for 21, 24 and 25 March, and 14-17 April.

The strike regulations themselves are controversial, the source close to the situation said. Battistelli put them in place last year, to widespread criticism and opposition from SUEPO. The procedure requires an initial “call for strike” to be signed and submitted by at least 10 percent of the staff, and for the EPO administration then to organise a ballot. If the vote backs a strike, those who made the initial call for such action must submit a strike notice. The SUEPO website includes a letter explaining many of its positions.

Last May, the EPO Central Staff Committee (CSC) complained about a draft proposal for new strike regulations to the Administrative Council (AC), the office’s supervisory body, the source said. Despite staff lobbying, however, the AC approved the new rules last June. There are now several complaints pending in the International Labour Organisation Administrative Tribunal (ILOAT) and national courts, the source said.

Resistance to Modernisation Expected

Asked his reaction to the strike vote, Battistelli said that, “contrary to what the staff representation has pretended for some months, our new rules for strike provide for a clear and well-functioning framework” under which five strike days were organised in the fall of 2013. The office “is in a phase of modernization of its social framework,” and it’s not unusual to face some resistance and opposition, he said. His social policy has unanimous AC backing and is being put in place project by project, he said.

While it’s true that a large part of the staff approved the strike, “there is a big gap between those who vote in favour of the strike and the ones actually striking,” Battistelli told Intellectual Property Watch. Beyond some disagreement on specific issues, “I am sure that the majority of the staff is very proud of the results reached” by the EPO in recent years, he said. The office has a staff turnover of less than 2 percent and receives a growing number of applications for vacant positions, he said.

EPO Governance

The office, like other international organisations, creates its own labour law and has its own social security system, a draft SUEPO handout for strike pickets said. The EPO is “very much a ‘state within a state’” without the separation of powers that marks democracies, it said. The president is the executive authority, and proposes the law to be applied with the EPO to the AC. The AC “almost without exception” endorses those proposals, thereby de facto giving the president broad legislative powers, it said.

The president also heads the office’ internal quasi-judicial system, the handout said. Investigation units report to him and he call for disciplinary procedures, it said. Disciplinary committees and the internal appeals committee can only advise the president, making him the “prosecutor, party and judge.”

“Back to the Middle Ages”

Battistelli has “radically changed” the way the EPO is managed, the strike handout said. His “highly authoritarian style is characterized by fear, isolation and punishment.” Changes he introduced to the EPO service regulations, the office’s internal law, drastically cut down on already weak legal protections for staff, it said.

Among other things, EPO employees no longer have timely access to justice, the handout said. It takes nearly four years for an opinion from the Internal Appeals Committee, and the president ignores most rulings that side with staff. That forces claimants to file ILOAT complaints, which take another five to seven years to resolve, it said.

In response, Battistelli said the appeals panel has faced a flow of complaints for many years, which has created a heavy backlog. Some were filed “just to block any reform and [to] paralyze the action of the administration through systemic procedural changes.” This was the situation when Battistelli arrived and since then he has tried to institute reforms, he said. Without diminishing the right to appeal in any way, he has introduced management review, a new pre-litigation step which he said is proving successful. In parallel, he has worked to obtain a supplementary ILOAT session mainly dedicated to EPO cases, he said. Staff representatives, however, have systematically attacked every decision from the EPO AC or president, Battistelli said.

Another issue is the “investigation guidelines” Battistelli introduced, which encourage staff to report on each other and deny them the right to remain silent, to be represented by legal counsel of their choice and to refuse access to their homes without a search warrant, the handout said. Battistelli has also curtailed SUEPO’s communications means by blocking incoming emails the union sends and barring the transmission of emails to more than 50 employees, the document said.

Battistelli, however, said the guidelines are well-known anti-fraud and anti-harassment policy tools based on international best practices, and they closely follow general legal principles set out by the ILOAT. Nor is he stifling communications, he told us. Staff representatives and unions have a dedicated website with possible RSS feeds, accessible to all employees through the office intranet, where they can exchange ideas and comments, he said. They often hold meetings in the office premises, and their “right of expression is fully respected,” he said.

The president next plans to dissolve the democratically elected Staff Committee, the strike handout said. Elections, set for June, “seem carefully designed to make the future Staff Committee unworkable.” The elections will be organised and controlled by the EPO administration, not staff, with Battistelli deciding on the admissibility of candidates and the validity of election results, it said. The president, however, said there are no plans to dissolve the staff committee. To the contrary, he said, his social democracy reform will put union representation on more sold ground and reinforce legitimacy.

More than half of elected staff representatives have faced or been threatened with disciplinary action in an apparent effort to quash opposition, the strike document said. One incident involved an attempt by the SUEPO Central Staff Committee to poll staff on the president’s proposal for reorganisation of staff representation. The CSC decided to use Big Pulse, a reputable company that had been used for other surveys by the office, a 10 March legal opinion for the committee said. The CSC compiled a list containing employees’ user identifications, names and email addresses to be uploaded in the e-platform, the opinion said.

The poll went online on 2 February, but access to it was blocked several hours later, according to the legal opinion. Battistelli advised the CSC that personal data had been sent to a third party outside the office (Big Pulse) in breach of EPO data protection guidelines, and suspended an employee pending an investigation, it said.

The opinion, however, found that the CSC acted within the limit of its authority in organising the survey, and that the data provided Big Pulse was not personal data because some of it was assigned by the EPO itself and some was publicly available in the office e-phonebook. “It can safely be concluded” that the data compiled to carry out the online poll “are not necessarily to be considered ‘personal data’” under EPO guidelines, it said. The CSC can “confidently” maintain its position and defend itself and the accused employee from charges of very serious misconduct, the opinion said.

All employees must respect EPO rules and regulations, Battistelli told IP-Watch. In the past, some have abused their protected status as staff representative to cross the line without consequences, he said: “This period is over.”

If there are breaches of rules on, for example, data protection, “it is my duty as President of the Office not to remain silent, but to engage the proper actions to stop the disruption, no matter whether it has been caused by a staff representative,” he said.

EPO staff “refuse to become second-class citizens,” the draft handout said. They want access to justice, freedom of speech and freedom of association. Battistelli is “heading directly back to the middle ages.”

“Antisocial Policies” Affecting France’s Reputation?

The “extremely toxic social climate” in the EPO prompted French MP Philip Cordery, who represents French citizens in the Benelux countries, and heads the International Department of the French Socialist Party, to write government officials about the situation. In a 4 March letter (http://www.philipcordery.fr/public/) to Industrial Renewal Minister Arnaud Montebourg, and Fleur Pellerin, minister delegate with responsibility for small and media enterprises, innovation and the digital economy, Cordery said he was contacted by SUEPO and several French EPO employees who asked to remain anonymous because of fear of retaliation.

Several recent EPO decisions are “contrary to French and European law, which is totally unacceptable for an international organisation based in the territory of the European Union,” Cordery said according to a translation. This is likely to affect the EPO’s role and effectiveness in its mission of European and intentional public service, he said. The “antisocial policies” by Battistelli, a former French official, “strongly affect the international image and reputation of France, instead of contributing to its influence.”

Cordery, who didn’t return an email seeking comment, asked the officials to instruct the French representative to the Board of the EPO to request the removal of all abusive disciplinary sanctions issued to date against staff representatives and to vote against the changes to election rules and organisation of staff representatives expected to be submitted to the AC later this month.

Moreover, the lawmaker said, given the facts, “I invite you to reconsider the support of France to the reappointment of Mr. Battistelli as President of the EPO.” Battistelli, however, said he “profoundly regret[s]” that Cordery never tried to contact me” before publishing his letter. “Its content was no surprise to me as I recognized most of the theory developed by the unionist hardliners,” he said.

Managing an organisation the size and complexity of the EPO is a challenge and Battistelli said he’s always ready to explain its projects and provide information. But “one basic condition is to find an interlocutor who really wants to talk to you,” he said. The president also frequently visits EPO member states and is in regular contact with the national authorities of those countries. Many of the national patent offices face financial problems, something the self-funding EPO does not, he said. But because its money comes from patent system users, “the minimum we can do is to rigorously manage our resources” to control costs, boost efficiency, continue to improve the quality of its patents, and not raise fees, he said.

Implications for the Unitary Patent?

The EPO turmoil could do more than hurt France’s reputation. The administrative tasks associated with grant of the EU unitary patent are planned to be “outsourced” to the EPO, said the source close to the situation. The fundamental issue at stake is the office’s “singular” status as an essentially autonomous intergovernmental organisation established by a separate treaty, the European Patent Convention, the source said. The EPO lies outside the jurisdiction of the EU, but the unitary patent project will try to “harness” the office as a “workhorse” for the EU, the source said.

While outside the EU’s remit, industrial unrest at the EPO “is obviously going to be (or should be) a source of concern at EU level,” the source said in an email. SUEPO’s position is that the office no longer allows effective legal recourse for alleged violations of fundamental rights, in breach of Article 6 of the European Convention on Human Rights and Article 47 of the EU’s Charter of Fundamental Rights. This raises political questions in view of the proposed outsourcing of unitary patent work to an autonomous entity that is allegedly failing to comply with EU norms and standards for protecting employee rights, the source said.

While the implications of all this are unclear, “I suspect that if the EU intends to press ahead” with the unitary patent, “it will end up being obliged to subject the EPO and its governance to closer scrutiny,” the source said. “Or else the EU just closes its eyes and presses on with the project regardless – that’s another possibility which can’t be discounted entirely.”

On whether the upcoming strike could harm the EPO’s workload, Battistelli said last year’s walk-out “had almost no impact on our production targets.”