international labor rights case law 3 (2017) 315-326 brill.com/ilarc

Right to Strike ⸪

24 Supreme Court of the : European Organisation & the State of the Netherlands v Vakbondsunie van het Europees Octrooibureau (veob) & Staff Union of the European (suepo), Case No. 15/02186, 20 January 2017

Decision-making body: Supreme Court of the Netherlands Case details: European Patent Organisation & the State of the Netherlands v ­Vakbondsunie van het Europees Octrooibureau (veob) & Staff Union of the ­European Patent Office (suepo), Case No. 15/02186, 20 January 2017 Primary legal issues: Immunity of international organizations; collective worker rights Applicable legal provisions: Article 6 of the European Convention on Human Rights; Article G of the European Social Charter; ilo Convention concerning Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ilo Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, 1949 (No. 98) Link to case: https://www.rechtspraak.nl/Organisatie-en-contact/Organisa​ tie/Hoge-Raad-der-Nederlanden/Supreme-court-of-the-Netherlands/Docu​ ments/Verdict.pdf

Summary

A plea of immunity by an international organization—the European Patent Office (epo)—should be rejected, a Dutch Appeals Court held, if the essence

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316 Supreme Court of the Netherlands of a person’s right of access to a court under Article 6 European Convention on ­Human Rights (echr) is impaired or if the organization’s protection of the rights guaranteed by the echr is manifestly deficient. This judgment was appealed to the Supreme Court, which reviewed whether the proportionality requirement in Article 6 echr had been satisfied in the sense that reasonable alternative ways to effectively protect the rights of veob et al. (the trade unions) were available. However, whereas the Appeals Court had held that the requirement had not been satisfied, the Supreme Court found that it had. The Supreme Court point- ed out that the epo employees can challenge measures epo has taken that affect them by following an internal epo procedure or a judicial process at the ilo Administrative Tribunal (iloat). Thus they can contest the lawfulness of the decisions on which the measures epo takes are based. Significantly, given that the case concerned a collective labor dispute, epo employee representa- tives can complain to iloat about the general rules affecting all employees collectively that need not be implemented in individual cases. Thus epo had provided epo employees and their representatives with a judicial process at iloat that qualified as a reasonably available alternative for protecting fun- damental rights.

Decision

[…]

3 Basis for the Cassation Proceedings

3.1 In cassation, the following can be taken to have been established.

(i) The Organisation is a legal person under public international law es- tablished in 1973 by the Convention on the Grant of European (Dutch Treaty Series 1975, 108, and 1976, 101; ‘the epc’). The epc entered into effect for the Netherlands on 7 October 1977. The Organisation has 38 member states (Contracting States) and has its seat in . One of the organs of the Organisation, the European Patent Office, is located in Munich with a branch in Rijswijk. (ii) Article 4 of the epc provides as follows: 1. ‘A European Patent Organisation, hereinafter referred to as the Or- ganisation, is established by this Convention. It shall have adminis- trative and financial autonomy.

international labor rights case law 3 (2017) 315-326