3.1. Disciplinary measures

According to D 5/86 (OJ 1989, 210), an infringement of the rules of professional conduct must be established to the satisfaction of the disciplinary body before it can impose a disciplinary measure. Absolute certainty is not required, but a degree of probability which in human experience verges on certainty. A disciplinary measure cannot be imposed if there is reasonable doubt as to whether the infringement has occurred.

In D 11/91 date: 1994-09-14 (OJ 1995, 721) the EPO Disciplinary Board had ordered the deletion of the appellant from the list of professional representatives for an indefinite period. In his appeal, the appellant argued that the procedure before the DBA did not comply with the provisions of the European Convention for the Protection of Human Rights (ECHR), in particular because the DBA had been established not by national law but by the Administrative Council, the disciplinary bodies did not constitute an independent court, the DBA was not a national authority, and its decisions could not be referred to a higher court of appeal.

The DBA decided that the ECHR contained provisions which expressed general principles of law common to the member states of the European Patent Organisation. As such these provisions should be considered part of the legal system of this Organisation and should be observed by all its departments. This therefore applied to Art. 13 ECHR, which guaranteed the protection by the judiciary of the rights of the individual. The "national authority" mentioned in this article was clearly meant to be understood as a competent authority in accordance with the law of the state concerned. However, in ratifying the Munich Convention, the contracting states accepted a transfer of prerogatives whereby professional representatives before the EPO became subject to the same set of professional regulations, controlled by a central body whose decisions were open to effective remedy before a body of second instance whose independence was guaranteed by the rules governing its composition. The drafting of these regulations and the establishment of these bodies was thus consistent with general principles of law, in particular those enshrined in the ECHR.

The board took the view that, in order to ensure that the penalty was proportionate to the seriousness of the charges and that the maxim whereby penalties should not be arbitrary but fixed or predetermined was respected, Art. 4(1)(e) RDR should be understood as meaning "for a period not defined by the text", that is for a discretionary period to be decided by the competent disciplinary body. In its decision, the latter should fix the said period and give reasons for its choice.

In D 20/99 (OJ 2002, 19), appellant X filed an appeal against the EPO Disciplinary Board's decision to issue him with a reprimand. The DBA, reviewing the penalty imposed in respect of the first charge only, held that X's actions, for which he had been prosecuted in France, were in breach of Art. 1(1) RDR and Art. 1(2) RDR. It was clear that D had been involved in drawing up European patent applications in consultancy L, owned by X, while being paid by company P. However, it was evident from the file that this contractual arrangement had never been the subject of invoicing. That gave an advantage to consultancy L by cutting the cost of drawing up patent applications. As it inevitably entailed unfair distortion of competition in relation to other European patent attorneys, this was an undue advantage. The misuse of corporate assets was tantamount to unfair competition and thus represented a breach of the rules of professional conduct.

According to D 1/18, the requirement for a Disciplinary Committee decision to state which rule of professional conduct was violated and which recommendation, if any, was not observed (Art. 17 Additional Rules of Procedure of the epi Disciplinary Committee; cf. also Art. 15 Additional Rules of Procedure of the EPO Disciplinary Board and Art. 17 RPDBA) is not merely a formality. To the extent that disciplinary proceedings have similarities to criminal proceedings (cf. also D 19/99), this is an expression of the principle "nullum crimen sine lege". There is no room for issuing a penalty under Art. 4(1) RDR for generally violating the spirit, aim and purpose of the RDR or epi Code of Conduct.