Tuesday, September 15, 2015

European Patent Office threatens legal action against staff union leader: escalating conflict

Last week, the TechRights blog published a letter by the head of the EPO's investigative unit to Elizabeth Hardon, the chairwoman of the Munich chapter of the Staff Union of the European Patent Office (SUEPO), summoning her to a hearing last Thursday. I also blogged about this development because it shows that the promise of "union recognition" is just a carrot the EPO leadership has been dangling to staff without any genuine desire to improve the internal climate.

Mrs. Hardon has probably never been at a greater risk of being fired, and the EPO is now not only talking about that scenario but additionally threatening "to take any other legal measures against [her]" over the alleged disclosure of the letter that was published last week. Here's the latest letter, signed by Elodie Bergot, Principal Director Human Resources of the EPO (this post continues below the document):

15-09-10 EPO Letter to SUEPO Munich Chair by Florian Mueller

Since I didn't receive a copy of either letter from Mrs. Hardon (whom I listened to at a couple of EPO demonstrations in Munich), I have no idea whether she is the source of the leak. Even if a letter is marked as "confidential," the EPO is so large an organization that the source could be anywhere, especially in light of the fact that presumably more than 99% of the staff is against the current leadership style.

As an employer, I also care a lot about confidentiality. However, confidentiality obligations can only apply to what is reasonably designated as confidential. I find it hard to see how the EPO could realistically demand silence over repressive action against one of the leaders of its staff union. Of course, if this involved third-party secrets (such as patent applications that haven't been published yet), then everyone would have to maintain strict confidentiality.

If, for example, Allianz or BMW (two other large Munich-based employers) threatened to fire one the labor union leaders among its employees, that story would draw press coverage within less than 24 hours.

More than anything else, this appears to be an attempt by the EPO to prevent SUEPO from communicating with the outside world on a level playing field. Obviously, the EPO's own website states the positions of its leadership, and that is something SUEPO has to live with. But SUEPO must at least be allowed to create transparency in such a critical context as this one.

SUEPO is holding another demonstration today as I read on its website. While previous demonstrations involved marches from EPO buildings to diplomatic representations of key EPOrg member states, staff will "march to the local Labour Inspectorate, Gewerbeaufsichtsamt" today. That one is an institution of the Bavarian government (part of the administration of the district of Upper Bavaria, to be precise). In a letter addressed to that institution, SUEPO argues that the German government has a particular duty of care for the many EPO employees based on its territory (and notes that approximately 25% of the EPO staff are German citizens).

I understand SUEPO's desire to draw attention to certain issues, but as the law stands, German authorities are not allowed to supervise the EPO in any way other than the influence the German government has by virtue of its status of being a contracting state and, therefore, being represented on the Administrative Council of the EPOrg.

Just like in my previous post on the EPO labor conflict, my message to EPO staff is that you can't have your cake and eat it. In a perfect world for you, you would have all the benefits (including tax benefits) of being employed by a famous international organization and would be under the protection of local authorities. That won't work. You either have to bite the bullet, stay at the EPO, enjoy certain privileges but also live with the fact that you won't have all the rights that your colleagues right across the street at the German Patent and Trademark Office don't have (though German patent examiners are not allowed to go on strike, by the way). Or you have to determine that the overall "package" you get at the EPO is still better than your best alternative on the job market. If you elect to take that package, you must accept certain structural shortcomings.

Far be it from me to justify human rights violations, cronyism, or crookery. Certain aspects of what the EPO leadership (including the Administrative Council) does are truly problematic and unacceptable. But instead of demonstrating in front of a Bavarian government agency that has no legal basis for helping you, you should think hard about whether you want to stay or leave. While Art. 20 of the Protocol on Privileges and Immunities of the European Patent Organization says the EPO should cooperate with national authorities in certain areas, Article 1 (2) of the PPI comes with the following practical restriction:

"The authorities of the States in which the Organisation has its premises shall not enter those premises, except with the consent of the President of the European Patent Office. Such consent shall be assumed in case of fire or other disaster requiring prompt protective action."

As a reaction to my previous post, someone told me that only a privileged few could simply choose their job. Obviously, with thousands of EPO employees affected, there are thousands of individual situations. But in general engineers and other scientists with multilingual skills are definitely in demand. As I wrote last week, most EPO employees would simply have to accept an initial pay cut (especially from an after-tax point of view) if they decided to work in the private sector. Some might reach their previous income level again over time; others might never reach it again. But if you left, then the Gewerbeaufsichtsamt of Upper Bavaria would indeed be responsible for your labor conditions.

I also don't consider it a valid argument that many EPO employees may have bought a house in the Munich area and would have to stay here due to long-term mortgage arrangements. First, there are many tech jobs in the Munich area itself. Second, if you had to move to another city or country, German banks would have to accept that you rescind your mortgage contract. Third, house prices have gone up a lot in Munich in recent years, so you wouldn't have to sell at a loss.

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