Judgment No. 4551
1. The impugned decision of 16 December 2019 is set aside.
2. The Communiqué of 31 May 2013 is set aside in the part indicated in consideration 14 of the judgment.
3. The EPO shall pay the complainants collectively 900 euros as costs.
4. All other claims are dismissed.
The complainants contest modifications made with respect to the use of mass emails within the Office.
complaint allowed; freedom of association; staff union activity; email; plenary judgment
The complainants allege an infringement of their rights to freedom of association, communication, and speech, which are granted to individual employees. The Tribunal’s case law holds that each staff member of an international organisation has a right to freely associate and the organisation has a corresponding duty to respect that right. This is a necessary element of their employment (see Judgment 4194, consideration 7; Judgment 911, consideration 3). Each is entitled to commence proceedings intended to defend that right or challenge an alleged breach of it (see Judgment 4155, consideration 2). As a result, it is enough for the Tribunal that the complainants brought their complaints in their capacity as staff members [...].
ILOAT Judgment(s): 911, 4155, 4194
cause of action; freedom of association
The complainants challenge two general decisions, the first announcing future rules on mass emails, and the second setting out new rules on mass emails. The Tribunal’s case law holds that a member of staff cannot impugn in proceedings in the Tribunal a general decision unless and until an individual decision which affects the member of staff personally is made based on the general decision. But the Tribunal’s case law contains an exception or limitation. As the Tribunal said in Judgment 3761 at consideration 14: “In general, [an administrative decision of general application] is not subject to challenge until an individual decision adversely affecting the individual involved has been taken. However, there are exceptions where the general decision does not require an implementing decision and immediately and adversely affects individual rights.” This is equally true regarding the right to associate freely (see, for example, Judgments 496, consideration 6, and 3414, consideration 4). As the Tribunal observed in that latter case, all officials of international organisations have a right to associate and an implied contractual term in the appointment of each that the relevant organisation will not infringe that right. Accordingly, the Tribunal held that the complainant could invoke the Tribunal’s jurisdiction to seek to argue that his rights had been directly and adversely affected by general decisions. In the present case, the complainants allege that the Communiqué of 31 May 2013 immediately and directly affected the right of staff members to freely associate, by stating that as from 3 June 2013 emails sent to more than fifty addressees would be allowed only if authorised, and, if not, they would be automatically blocked and not dispatched. As to Communiqué No. 26 of 13 May 2013, it was the first step of the process that was finalized with the issuance of the Communiqué of 31 May 2013; therefore, it was properly contested together with the Communiqué of 31 May 2013 in the internal appeal and in the present complaints.
ILOAT Judgment(s): 496, 3414, 3761
general decision; cause of action
[T]he Tribunal’s case law has long recognised that staff of international organisations have a general right to associate freely. There can be no doubt that freedom of association is a well-recognised and acknowledged universal right which all workers should enjoy. It is recognised as a right by the Tribunal as well as by a large number of international conventions and declarations (see, for example, the 1998 ILO Declaration on Fundamental Principles and Rights at Work, Article 2(a); the 1966 International Covenant on Civil and Political Rights, Article 22; the 1966 International Covenant on Economic, Social and Cultural Rights, Article 8), and by the Administrative Council of the EPO itself, which recognised the importance of human rights when formulating the rights and obligations of staff (see Judgment 4482, considerations 12 and 13). Article 30 of the Service Regulations, entitled “Freedom of association”, provides: “Permanent employees shall enjoy freedom of association; they may in particular be members of trade unions or staff associations of European civil servants”. The role of staff associations or unions is to represent the interests of members primarily in dealing with their employing organisation on issues concerning the staff. Staff associations or unions should be able to do so unhindered or uninfluenced by the Administration of the employing organisation. Were it otherwise, the role would be compromised (see Judgment 4482, consideration 8).
Freedom of association necessarily involves freedom of discussion and debate. In Judgment 274, under 22, the Tribunal stated that “this freedom when feelings run strong [...] can spill over into extravagant and even regrettable language”. Nonetheless, the Tribunal also acknowledged that freedom of discussion and debate is not absolute and that there may be cases in which an Administration can intervene if, for example, there is “gross abuse of the right to freedom of expression or lack of protection of the individual interests of persons affected by remarks that are ill-intentioned, defamatory or which concern their private lives” (see Judgments 2227, consideration 7, and 3106, consideration 8).
The Tribunal’s case law has it that a staff association enjoys broad freedom of speech and the right to take to task the Administration of the organisation whose employees it represents, but that like any other freedom such freedom has its bounds. Thus, any action that impairs the dignity of the international civil service, and likewise gross abuse of freedom of speech, are inadmissible. But the prevention of such abuse cannot give the Administration a power of prior censorship over the communication of written information produced by the groups and associations concerned (see Judgment 911 and Judgment 2227, consideration 7).
In Judgment 3156 the Tribunal held that, in specific cases, a prior authorisation for the dispatching of mass emails could be justified: “The freedom of speech and the freedom of communication [...] are not, however, unlimited. Not only is an organisation entitled to object to misuse of the means of distribution made available to its staff committee [...], but it also follows from the case law [...] that the right to freedom of speech does not encompass action that impairs the dignity of the international civil service, or gross abuse of this right and, in particular, damage to the individual interests of certain persons through allusions that are malicious, defamatory or which concern their private lives. [...] Since organisations must prevent such abuse of the right of free speech, the Tribunal’s case law does not absolutely prohibit the putting in place of a mechanism for the prior authorisation of messages circulated by bodies representing the staff. An organisation acts unlawfully only if the conditions for implementing this mechanism in practice lead to a breach of that right, for example by an unjustified refusal to circulate a particular message” (see Judgment 3156, considerations 15 and 16).
As observed earlier, the right to freely associate is a general right that enshrines more specific rights, which are necessary or useful in order to ensure that the right to freely associate is effective. It includes the rights to freedom of communication, information, and speech in all forms, including discussion and debate (see Judgment 3106, considerations 7 and 8). Such rights are vested not only in their authors (usually the staff representatives), but also in the recipients. The right of each staff member to freely associate also includes their right to freely receive communications and information, and their right to listen to speeches. In this perspective, every limitation to the right of staff representatives to send mass emails to the staff members, is also a limitation to the right of the staff members to receive mass emails.
Free communication, information, and speech also imply:
(i) the right to the confidentiality of communication, information, and speech; and
(ii) the right to freely choose the means by which the communications are sent, information is provided, and speeches are given.
An organisation is entitled to issue reasonable guidelines in order to govern the use of the office emails by staff members and staff representatives, and to establish authorised and non-authorised uses. Insofar as the criteria on the use of mass emails are underpinned by general interests, such as those listed in Communiqué No. 10 of 29 March 2006, they shall be considered lawful, as they ensure a reasonable balance between the interests of the organisation and the fundamental rights to free communication, information, and speech, vested in the staff members and their staff unions and representatives. This general balance should not allow a prior supervision or preventive censorship by the organisation on the content of the communications, information, and speech (see Judgment 2227, consideration 7). However, the Tribunal’s case law considers lawful a mechanism of prior authorisation under exceptional circumstances (see Judgment 3156, considerations 15 and 16 quoted in full in consideration 9 [...]).
Staff members and their representatives are not allowed an indiscriminate and unfettered exercise of their rights to freedom of communication, information, and speech. Their “freedom” must be consistent with the duties of the staff members towards the Organisation and towards fellow staff members. Freedom of communication, information, and speech is not freedom to insult or to offend (see Judgment 3106, considerations 7 and 8). The communication, information, and speech fall within the responsibility of their authors. Those that exceed the boundaries of freedom and fail to respect the duties of a staff member or result in insults or offences should be subject to disciplinary proceedings and sanctions.
Whether a communication, information, or speech violates the duty of the staff members can be established only on a case-by-case basis, and, normally, after the communication, information, and speech are divulged.
ILOAT Judgment(s): 274, 911, 2227, 2227, 3106, 3106, 3156, 4482
international instrument; freedom of speech; freedom of association; staff representative; email
Since the freedom of communication, information, and speech includes the right to choose the proper means, the Organisation is not allowed to impose certain means (such as, in the present case, the dedicated intranet webpage) rather than others (the mass emails). This is particularly true where the means offered (or imposed) are more complicated and less viable than the other ones technically available, or are even under the supervision of the Organisation itself. In the present case, the alternative means offered by the Organisation consisted in an intranet webpage on the Organisation’s website. This is, manifestly, a less viable means of communication and, moreover, it is under the supervision and the management of the Organisation, and not under the complete control by and availability for the staff representatives. It must also be recalled that according to the Tribunal’s case law, the ability of a body representing the staff to circulate emails to all staff members is not “a privilege”. Such body “has a legitimate right to avail itself of this facility, unless there is good cause for restricting it” (see Judgment 3156, consideration 14).
ILOAT Judgment(s): 3156
staff union activity; email; intranet webpage
Insofar as the complainants essentially ask the Tribunal to order the EPO to modify its rules concerning the use of mass communications, their claims are irreceivable. The Tribunal has no jurisdiction to make such orders (see Judgment 2793, consideration 21).
ILOAT Judgment(s): 2793
competence of tribunal; order to modify internal rules
Each complainant [...] seeks an award of 20,000 euros in moral damages for the “serious breach” of their rights since 2013. The Tribunal finds that the annulment of the impugned decision is in itself a sufficient remedy for any moral injury the complainants may have conceivably suffered.
staff representative; moral damages; satisfaction