The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 24 July 2008

Researchers: are they workers?

The IPKat didn't see this one coming because it isn't really an IP case at all -- though it seems to him that it does have repercussions for IP in a big way. It's Case C-94/07, Raccanelli v Max-Planck-Gesellschaft zur Forderung der Wissenschaften eV, a reference to the European Court of Justice from the Arbeitsgericht Bonn (Germany) for a preliminary ruling.

Right: Max Planck -- the face that launched a thousand institutes

This reference related to Article 7 of Council Regulation 1612/68 on freedom of movement for workers within the Community, which says:

"1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and, should he become unemployed, reinstatement or re-employment.

2 He shall enjoy the same social and tax advantages as national workers ...

4 Any clause of a collective or individual agreement or of any other collective regulation concerning eligibility for employment, employment, remuneration and other conditions of work or dismissal shall be null and void in so far as it lays down or authorises discriminatory conditions in respect of workers who are nationals of the other Member States".

Raccanelli, an Italian, was engaged as a junior researcher at one of Germany's Max Planck Institutes, these being private law associations operating in the public interest. The Institutes operated two different schemes for junior researchers who were working on their doctorates: (i) a grant contract and (ii) an employment contract. The main difference between them was that the recipient of a grant was under no obligation to work for the institute and could devote himself entirely to work relating to his thesis, while the latter were required to work for the institute and might use its facilities for thesis purposes only outside normal working hours. Additionally, grant recipients paid no income tax or social security, while employed researchers paid income tax and social security contributions. Raccanelli maintained that he was an employee who was being discriminated against; the Institute said he wasn't an employee at all. Following a bout of litigation, the Arbeitsgericht Bonn referred various questions to the ECJ which held as follows:

"1. A researcher in a similar situation to that of the applicant in the main proceedings, that is, a researcher preparing a doctoral thesis on the basis of a grant contract concluded with the Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV, must be regarded as a worker within the meaning of Article 39 EC only if his activities are performed for a certain period of time under the direction of an institute forming part of that association and if, in return for those activities, he receives remuneration. It is for the referring court to undertake the necessary verification of the facts in order to establish whether such is the case in the dispute before it.

2. ...

3. In the event that the applicant in the main proceedings is justified in relying on damage caused by the discrimination to which he has been subject, it is for the referring court to assess, in the light of the national legislation applicable in relation to non-contractual liability, the nature of the compensation which he would be entitled to claim".
It seems to the IPKat that, if a ruling or legal interpretation is capable of deeming a person to be an employee even where he is apparently only a doctoral student, that same ruling might be analogised in order to make him an employee for the purposes of (i) the 'employing' institute being able to assert ownership or lesser entitlements to inventions and other IP created by him in the course of his research or (ii) the doctoral student being able to claim an entitlement to compensation for the benefit or use of any patents resulting from his research. This needs to be carefully thought out, he says. Merpel says, but shouldn't one draw a distinction between a "worker" and and "employee"? They're not the same thing at all.

Workers of the World Unite here
Workers' Playtime here


Richard McD. Bridge said...

Merpel is right, there is a fundamental distinction between an employee and a worker - and once you start to look at the English cases about the "control" test for employees the idea that a "worker" must work under the direction of the institute or fail to be a worker has dangerous ramifications.

Riemannzeta said...

and if, in return for those activities, he receives remuneration.

I wonder whether the possibility of future royalties might not be considered remuneration. A contract executory?

Anonymous said...

Partners' wives: employed by the firm, but "workers"?

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