Immunity of the European Patent Organization: Position of the Dutch Government

In a previous post, I commented on the somewhat precarious situation the Dutch government has found itself in (or manoeuvred itself in, depending on your position) regarding the European Patent Organisation EPO: in a verdict on appeal which thoroughly addressed jurisdiction issues, the The Hague Court of Appeal took jurisdiction in Labour Union SUEPO v EPO, despite the European Patent Convention's Protocol on Privileges and Immunities. It did so in a case regarding non-recognition of the Unions, because labour unions have no recourse to any appeal mechanism, which was a breach of the fundamental rights of its members.

The case was "appealed" in Cassatie to the Hoge Raad (Supreme Court), in a procedure, which is only open to questions on  application of (the principles of) law, but not anymore regarding the facts of the case. As I noted, the Dutch government has requested to become a party to those procedures, and was granted that right last month. Now the government has shed some more light on their motives to do so in answer to parliamentary questions of Van Nispen en Ulenbelt. The relevant answer reads (in my translation, with comments in red):

The Dutch State as on 22 May submitted its request to become a party to the proceedings with the Hoge Raad. It did so, because regarding the immunity from jurisdiction and execution attributed to EPO, the verdict of the The Hague Court of Appeal did not take into account sufficiently on one hand the international obligations resulting from the Protocol on Privileges and Immunities of the EPO and on the other hand the special character of EPO, which has a seat not only in the Netherlands, but also in different states. The Dutch state has therefore become party to the proceedings regarding
*The absence of jurisdiction of the Dutch Judge regarding EPO, because of its immunity as an international organisation with a seat in multiple countries [multiple countries argument; I have no idea if the number of seats of an international organization has ever mattered regarding immunity? The point of multiple countries was brought up by EPO of course].
*The scope of the verdict in relation to EPO's immunity from execution 

The state has the duty to guarantee that international law is followed in the Netherlands. Violation of international law by the state and its organs leads to international liability of the Netherlands. That means that the State has to guarantee the immunity EPO has. The Netherlands should also ensure that its judges don't take jurisdiction, which they don't have according to international law. This means in the present case that the Dutch judge can not render a decision regarding an organisation over which it has no jurisdiction as a result of immunity. Besides that, the Dutch judge is not competent regarding subjects within the competence of other states. The decision of the court however is directed at the organisation as a whole, including its divisions in other states. For the Netherlands, as a host of EPO and many other international organisations, the international obligation to guarantee immunity is sufficiently important to become a party to the case on the side of this international organisation [after the legal arguments, that is a mostly opportunistic argument]. 

Well, the good thing of this is, that the arguments of the Court of Appeal are now being tested thoroughly at the Hoge Raad, and the State has every right to join the proceedings. But the strength with which the State dismisses a court decision in a case to which it is not a party is also troubling as it touches upon the balance of power between the judicial and the executive branches. It would have been a lot more respectful and appropriate if the State would have followed a different approach and said that "in the interest of development of law" it wants the Supreme Court to weigh the arguments to the maximum extent possible.

Will a decision of the Hoge Raad be the end of the business? In view of the importance of the ECHR case law regarding international organisations, an appeal there seems likely in the case of a loss of SUEPO in the Netherlands

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. 
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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.