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