EPO bids to save litigating employees from union's human rights infractions

Prior art? Wolf in sheep's clothing ...

Merpel has been taking another peep at the weird and wonderful topsy-turvy world of Eponia, in which the European Patent Office (EPO) has apparently seized the opportunity to offer some warm and tender paternalistic advice to those of its subjects (though it prefers the word "colleagues") who for some inconceivable reason might be troubled to bring legal cases against it.

"Out of its duty of care towards EPO employees", a duty which may indeed exist in theory but which many would say is sadly lacking in reality, the EPO urges its litigious colleagues to take great care to guard against the breach of its human rights by staff union SUEPO.  Both real and fictional Kats have memories that are admittedly fallible, but Merpel has this vague recollection that EPO's concern for human rights has been demonstrated more vividly by its defiance of them than by their protection. Was this organisation not called to account earlier this year by a Dutch court, in a judgment that the EPO ignored, trumpeting its immunity from national law? Yet it is the very same national law to which the EPO now, extraordinarily, turns.

Readers who are new to this weblog and who consider that the European Patent Office cares a bent penny for the human rights of its employees might like to look at the background here and here.  Readers who are familiar with this history can start reading last week's staff circular here:

Your rights

02.10.2015 

To all staff 

It has been recently brought to our attention that colleagues who turn to SUEPO for their pending legal cases against the Office are asked by SUEPO to sign a standard agreement in order to obtain financial support for the lawyer's fees. 

Out of its duty of care towards EPO employees, the Office requested an external legal advice to assess the conformity of this agreement to the applicable national law and has concluded that it does not fulfil the required standards of legality. 

Unions may be entitled to provide legal support to colleagues and to propose standard contracts to that effect. However, such contracts must comply with the applicable law and basic fundamental rights as recognised in all European countries and under general principles of law. 

More specifically, several clauses of this agreement seem to be against good faith and/or national law under which such contract is signed and are thus unlawful and void. 

For example, Article 13 of the agreement reads as follows:

‘Where an external lawyer has been retained, as defined above,

• (a) The Applicant shall at all times entrust the whole procedure to the lawyer, either directly or through SUEPO's Legal Advisor.

• (b) The Applicant shall at no time communicate directly with the Office on matters concerning the litigation without the prior and express approval of the external lawyer or the Legal Advisor.

• (c) If the Applicant fails to meet the two requirements (a) and (b) above, financial aid by SUEPO may be revoked at any time and stage of the procedure.'

This standard clause prohibiting the staff member from communicating with the administration and therefore from taking any steps without requesting the express prior permission of SUEPO or SUEPO's lawyers restricts unlawfully the staff member's freedom of self-determination of his/her own case, infringes basic principles of the Law on general terms and conditions of employment, restricts his/her freedom of communication and constitutes an infringement of basic rights of occupational freedom in a dubious way. 

In case such unlawful clauses are used to block the possibility of amicable settlement or to exercise pressure to file further unjustified or unwanted litigation, this could be considered detrimental to the general interests of justice as well as an infringement of basic human rights of the staff member.

As a result, staff may consider contesting such contracts as void. 

In view of the above, the Office recommends staff to check with independent external lawyers of their choice the specific agreements they are asked to sign before doing so. 

If staff members are already engaged under such contract, they are in the same way and to the same extent also invited to check the lawfulness of the invoicing (proportionality of invoice against services, applicable fees under national law) as cases of overcharged legal fees/ invoices came to the attention of the Office. 

The Office's services remain at the staff's disposal for confidential consultation in case colleagues have already signed such documents and are not certain about the exact legal and financial obligations they have assumed from them. In such a case please contact the Conflict Resolution Unit.

Željko Topić Vice-President DG 4

Raimund Lutz    Vice-President DG 5

Merpel wonders how many employees who are litigating against the EPO, or are contemplating doing do, would wish to take up the offer of the EPO's confidential consultation services.