European Patent Office: An International Organization before a National Court

In recent years, the European Patent Office (EPO) has been plagued by ongoing problems between the leadership of this organization and its labour union (SUEPO) over workers’ rights. For a long time, problems remained unresolved, but as tensions rose and relations between the management and staff members became more strained, the labour union decided to request a national court in The Netherlands to take up the case against the European Patent Office. The city of The Hague , where one of the offices of the European Patent Office is established, takes justice very seriously and has so far, delivered two judgments, one by a High Court as well as by an Appeals Court.

According to Dutch experts, the judgments by these national courts are important since they create an international precedent by rejecting immunity of an international organization and also awarding the claims on their merits, based on the fact that the organization in question violated fundamental human rights. [1]

Unfortunately, the Dutch Minister of Security and Justice, Mr. Ivo Opstelten, commented on the Court’s decision and stated that “the European Patent Office does indeed enjoy immunity which means that no enforcement measures can be taken by Dutch authorities". This statement by a Dutch politician is exceptional as it undermines the constitutional separation of powers. In addition, experts have stressed that immunity from enforcement is not an obligation under international law. It can only be granted if the organization adequately protects fundamental human rights.

What caused the situation at the European Patent Office to escalate into a very public struggle and what could lead be a possible solution?

The European Patent Office is an intergovernmental organization which is supported by 38 nations, consisting of EU Members States and Non-EU members such as Switzerland, Turkey and Norway.  The Organization employs alomost 7,000 people in four different locations including  Rijswijk (The Hague Area). The office is overseen by an Administrative Council which functions as its executive arm. The organizations’ core activity is the examination of patent applications and the grant of European patents.

The European Patent Office, like many other international organisations, creates its very own labour laws and has its own social security system. According to the organizations’ internal procedures, the President functions as the executive authority and proposes the law to be applied with the European Patent Organization to its supervisory body, the Administrative Council. The President also heads the internal quasi -judicial system. All investigation units report to the President. Disciplinary committees and the internal appeals committee can only advise the President which makes him the prosecutor, party and judge, according to a strike handout by the labour union.

Under the leadership of its current President, the office internal laws, drastically cut down on basic, already weak legal protection for staff members.

Among many other things, employees no longer have timely access to justice as an opinion from the Internal Appeals Committee nearly takes four years. Freedom of association, freedom of speech and are also limited under current internal regulations. The President has also introduced controversial strike regulations to widespread criticism and opposition from the the Labour Union.

The President , in his defense, speaks of sabotage of his reform policies. As tensions increased, the Labor Union has called for an independent investigation, but the President strongly opposes this.

In 2015, the Appeals Court in The Hague ruled that the European Patent Organization must recognize its Labour Union.  They must be consulted on working conditions and the President should not attempt to prevent strikes.

What is noteworthy is that parties brought in extreme cases to support their arguments and prove their case in the Dutch court procedures. The European Patent Office referred to the Mothers of Srebrenica/Netherlands Case (no 66542/12). This case determined that mothers of the victims of Srebrenica, are not in a position to file claims against the United Nations because of its immunity as an international organization. The Appeals Court ruled that the position of the United Nations is not comparable with that of the European Patent Organization.

Aside from these Court Cases, many individuals as well as the Labour Union have also used media outlets to bring this deeply rooted conflict to public attention.

As a result, some Member States have expressed concerns for the current regime of the European Patent Organization and are starting to withdraw their support.

The Court Case initiated by Labour Union in The Netherlands has found its way all the way to the Dutch Supreme Court. On January 29, Mr. Floris Bakels, one of the most Senior Judges in The Netherlands, issued a remarkable appeal to The European Patent Office and its Labor Union. Mr. Bakels stated that both parties should make a serious attempt for mediation as that may offer a solution. The Dutch Surpreme Court recognizes that it will not be able to solve the issues alone. However, the ruling which is expected this Summer, may answer an important question: How far does the legal immunity of the European Patent Office as an international organizations reach? This question is relevant not only for the European Patent Organization but also for many other international organizations in The Netherlands such as the ICC.

The Labour Union continues to organize strikes and demonstrations, including in The Hague, where a huge demonstration took place in the Fall of 2015 in which over 1,000 people participated.  The crowd, supported by Dutch and French members of Parliament as well as by the largest Dutch Labour Union (FNV) gathered in front of the Peace Palace  and walked from the nearby French Embassy to the German Embassy. We can only hope that peace will come soon for the European Patent Organization.


[1] Fundamentele Arbeidsrechten en Immuniteit; de Zaak tegen de Europese Octrooi Organisatie in Nederlands Juristenblad, afl. 18, 2015