DVDW Advocaten

EPO: No immunity in labour cases?

27 August 2013

A prior employee of the European Patent Office (EPO) based in Rijswijk achieved a landmark ruling in his proceedings against his former employer: The labour court in The Hague ruled that it has jurisdiction in labour cases against EPO and disregarded EPO's defence based on immunity of international organisations from state jurisdiction. The labour court decided in a recently published case (Kantonrechter Den Haag, 16.07.2013, JAR 2013/204) that the recourse to the Administrative Tribunal of the International Labour Organisation (ILOAT) does not qualify as a fair and reasonable trial as required by art. 6 European Human Rights Convention (ECHR).

What was the situation? The case deals with the employee's right to invalidity benefits. The employee in question became incapable to work in 2003, since that moment he received invalidity benefits based on his employment contract. In 2008, these benefits were cut back from a full pension to a supplementary payment. The employee challenged this decision and went to the Internal Appeals Committee. In August 2011, the Internal Appeals Committee advised the President of EPO to honour the employee's claim. However, the President did not follow the Committee's advice and turned down the employee's request. Subsequently, the employee appealed this decision at the Administrative Tribunal of the International Labour Organisation (ILOAT) in the manner prescribed by the European Patent Convention.

ILOAT informed the plaintiff that there are at the moment round about 500 cases pending but that ILOAT only hears around 50 cases per session. It advised that the number of cases brought against EPO is out of proportion in relation to the number of EPO employees and the number of cases brought against other international organisations and concluded that only four to five cases against the EPO are decided per ILOAT session. In practice, it therefore takes about 15 years for a case against EPO to be decided by ILOAT.

In view of the length of the ILOAT proceedings, the labour court in The Hague ruled that these proceedings do not meet the requirements of the right to a fair and reasonable trial. Therefore, EPO could not rely on its immunity from jurisdiction. The labour judge also pointed out that it did not appear that EPO is trying to do something about the lengthy proceedings. Consequently, the court opened the path to the national judge at least for this lawsuit, although it also mentioned that this is an extraordinary case.

This decision on jurisdiction is open to appeal. We expect that the EPO will appeal the decision and, if necessary, ultimately submit this case to review by the Hoge Raad, the Dutch Supreme Court. EPO will have an interest in a final ruling on its immunity. In 2009, the Hoge Raad decided in favour of EPO that it does have immunity in labour law cases. However, in this case, the issue was rather whether the ILOAT proceedings qualify as proceedings by an independent judge. The lengthiness of the proceedings was no issue at all.

Whether the decision of the Hague district court will be upheld in appeal, is an open question. In any case, it will take quite some time until a final Supreme Court judgement. In the meantime, the uncertainty as to the EPO's immunity may open the door to individual negotiations. 


More information?

For your questions, please contact Ann Kathrin Oberbremer or Marijke van der Sanden, both specialised in (international) labour law.

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