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Thursday, October 1, 2015

SUEPO v EPO: immunity-based rejection of service of a judgement holding that that immunity doesn't apply

"National courts are not to hear cases regarding international organizations, because they enjoy immunity from prosecution.” On this basis courts generally do not assume jurisdiction in conflicts in which an international organization is involved, and generally that must be assumed to be a correct mode of action.

There are however several limits to immunity of international organizations: protocols on immunity generally exclude immunity in actions not directly related to their core task like conflicts about procurement of goods. Even if a subject matter is covered by immunity protocols, courts in -at least- Europe should take into account the case law of the European Court of Human Rights, interpreting the European Convention on Human Rights. In brief, employees of international organisations on European soil can not be denied their fundamental rights stemming from the ECHR. The pivotal case is Waite & Kennedy v Germany (nr. 26083/94) in a case where Germany had denied jurisdiction based on immunity of the European Space Agency. ECHR found that the German courts were right to do so stating that as a minimum requirement to avoid "national" jurisdiction, the international organization should have a “reasonable alternative means to protect effectively their rights under the Convention".

EPO labour dispute
It is based on the latter point that the Dutch Court of Appeal of The Hague has taken jurisdiction in a case between labour union SUEPO and the European Patent Organization (EPO), reversing a First Instance decision. SUEPO was not recognised by EPO, and was not able to appeal its non-recognition decision. While EPO argued that individual employees of EPO had recourse to the administrative tribunal of the international labour organisation (ILOAT), the judge held that that did not absolve EPO from providing an appeal mechanism to SUEPO (whether with ILOAT or elsewhere). The court thus took jurisdiction and ordered i) recognition of the union, ii) a wider “right to strike” and iii) allowing the union to send emails to its members. The judgement seemed well reasoned to me and clearly took into account the intergovernmental context, as no Dutch labour standards were imposed.

Things went interesting from a jurisdiction case law and international relations point of view from then on. To be executable, the judgement had to be served to EPO, which SUEPO had done through a gerechtsdeurwaarder (court’s bailiff) as is required in the Netherlands. EPO however refused to comply with the judgement because of its immunity. Furthermore, Dutch Minister of Justice Ivo Opstelten ordered (rather late, as the judgement had already been served, and a served judgement can not be “unserved”) bailiffs not to serve the judgement under a part of the bailiffs act (gerechtsdeurwaarderswet, Article 3a) that allows the Minister to prohibit service if it would run contrary to his obligations uphold immunity to intergovernmental organisations, embassies, ambassadors etc. I was shocked by Opstelten ordering non-service based on immunity, not because I am opposed to the principle of such immunity, but because the judge had so elaborately discussed (on appeal and not in first instance) why it held that it had jurisdiction, and from that decision it would automatically follow that denial of service could thus not be based on the -in this case not applicable- immunity. Parliamentary questions on the subject were asked and answered by Minister Van der Steur (Opstelten's successor), in which he held that -whatever the content or nature of the verdict- it could never be served by a court's bailiff, because of the inviolability of the premises of EPO, classified as an "absolute immunity from service". The minister contended however that non-service did not mean that an international organization "has no rights under international law or the law of its seat". In other words: the Dutch government holds that verdicts should be executed, but that it is not in a position to take the steps it would normally take to ensure that. I wonder if that is a position which would be followed by the European Court of Human Rights: if justice is done, but the judgement is not followed, that's just as effective as denial of justice. 
Current litigation
The matter doesn’t end here however, as the court dispute is currently fought on “two fronts”. SUEPO has appealed the order that bailiffs can not perform service of the judgement and thus has started a case against the state. I don’t know what the status is of that case.
EPO on the other hand has appealed the judgement of the The Hague Court to the Supreme Court in “cassatie”; which means that appeal is only possible on principles of law, rather than the facts of the case. In the latter case, 2 weeks ago the Dutch state was allowed to intervene and thus become a party to the proceedings.

I am following the cases with interest, as it will make clear how far a state can go in upholding immunity (in this case: inviolability of premises), based on a reasoned judgement -whatever one may think of that- that renders immunity (from cases involving unions) inapplicable. It also is interesting to see if the Supreme Court will follow EPO in its argumentation that as its employees (the individual members of SUEPO) have recourse to ILOAT, no separate process for Unions has to be provided.

But more important of all, its time for EPO, SUEPO and other EPO employees to find a way forward in solving their conflicts, as there are far too many indications, that the working environment at EPO is in dire need for improvement.

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