Judgment No. 4430
Decision
1. Circular No. 347 is set aside.
2. The EPO shall pay each complainant moral damages in the amount of 2,000 euros.
3. The EPO shall pay each complainant 800 euros costs.
4. All other claims and the application to intervene are dismissed.
Summary
The complainants challenge the new rules governing the exercise of the right to strike at the European Patent Office.
Judgment keywords
Keywords
complaint allowed; general decision; decision quashed; right to strike; strike
Consideration 9
Extract:
The Circular was a normative legal document subordinate to the Service Regulations. As such, it could not modify or limit the Service Regulations in any respect (see Judgment 3534).
Reference(s)
Jugement(s) TAOIT: 3534
Keywords
administrative instruction; staff regulations and rules
Consideration 11
Extract:
In these proceedings the complainants seek relief that, in substance, involves a declaration that CA/D 5/13 and Circular No. 347 are each unlawful and that each should be set aside. As to the Circular, the Tribunal is satisfied, having regard to its case law and its Statute, that it has jurisdiction to declare the Circular unlawful and set it aside (see, for example, Judgments 2857, 3522 and 3513). The position is not so clear in relation to CA/D 5/13 which, if it were set aside, would likely have the legal effect of setting aside current (at least as at the time the proceedings in the Tribunal were commenced) provisions of the Service Regulations. While the Tribunal can examine the lawfulness of provisions of a general decision (see, for example, Judgments 92, consideration 3, 2244, consideration 8, and 4274, consideration 4), whether it has jurisdiction to set aside a provision of the Service Regulations is a significant legal question on which the Tribunal’s case law is unclear. It should be resolved in an appropriate case by a plenary panel of the Tribunal constituted by seven judges, which is not presently possible.
Reference(s)
Jugement(s) TAOIT: 92, 2244, 2857, 3513, 3522, 4274
Keywords
general decision; competence of tribunal; staff regulations and rules
Consideration 13
Extract:
It has long been recognised that staff of international organisations have a right to strike and that generally it is lawful to exercise that right (see, for example, Judgment 2342, consideration 5).
Employees who strike by ceasing work are deploying a tool incidental to collective bargaining to place pressure on their employer, often in the context of a dispute about preserving or improving wages and working conditions, workplace safety, dismissals and freedom of association amongst other things. It is a tool employees have to redress the imbalance of power between them and their employer. Absent a right to strike, it is open to an employer to ignore entreaties by employees advanced collectively to consider, let alone respond to, their grievances about wages and working conditions or, additionally but not exhaustively, the other matters referred to at the beginning of this consideration. However, at least ordinarily, the price the employees pay for deploying the tool is that they forfeit the remuneration they would otherwise have received had they worked (see, for example, Judgment 615, consideration 4).
Reference(s)
Jugement(s) TAOIT: 615, 2342
Keywords
right to strike; strike
Consideration 14
Extract:
[T]he Tribunal case law to the effect that a general decision cannot be challenged by a staff member unless and until an individual decision is taken. 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.”
Reference(s)
Jugement(s) TAOIT: 3761
Keywords
general decision; cause of action; impugned decision
Consideration 15
Extract:
In the absence of any implementing decision, the question that then arises is whether, in relation to the complainants, there has been an immediate and adverse effect on individual rights. The Tribunal is satisfied there has been. Circular No. 347 did have an immediate and adverse effect on the complainants’ right to strike. It is immaterial that they did not go on strike in June 2013 or that circumstances had not arisen where one or a number of the provisions of the Circular operated on or applied to conduct of the complainants. The effect was immediate because, at the date of promulgation of the Circular, it legally constrained future exercise of the right to strike or imposed burdens to the same effect. The complaints are receivable.
Keywords
general decision; receivability of the complaint; cause of action; right to strike; strike
Consideration 16
Extract:
[I]f the class who have a right to vote on whether the strike should start extends beyond (and potentially well beyond) the employees who wish to strike, then that wider class has a capacity to veto the strike. This problem is compounded by the percentages (40 per cent of employees and 50 per cent of voters) at the conclusion of this provision. Additionally, the requirement that the vote be conducted by the Office violated the right to strike. Employees themselves should be able to make arrangements for the vote (see Judgment 403, consideration 3).
Reference(s)
Jugement(s) TAOIT: 403
Keywords
right to strike; strike
Consideration 16
Extract:
[T]he time limit placed on the duration of strike violated the right to strike. Striking staff should be able, themselves, to determine the length of the strike.
Keywords
right to strike; strike
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