3.2. Appealability of decisions of the epi Disciplinary Committee

In D 15/95 (OJ 1998, 297) the DBA ruled that a Disciplinary Committee decision dismissing a complaint was a decision in the legal sense only as regards the persons referred to in Art. 8(2) RDR, and only they could appeal against it. Thus the person who made the complaint had no right of appeal. Review on appeal was limited to safeguarding the rights of the "accused", i.e. the "professional representative concerned" within the meaning of the RDR (see also D 1/98). In D 28/97 and D 24/99 the DBA added that the purpose of disciplinary proceedings was not for individuals to pursue their interests vis-à-vis others (although these might be affected in individual cases) but rather to serve the public interest in orderly and proper exercise of professional representation before the EPO. Any claims by individuals arising from a representative's infringement of the rules of professional conduct were exclusively a matter for the competent (civil) courts (see also D 25/05 and D 3/13).

In cases D 1/18 and D 2/18 the question arose whether a decision by the epi Disciplinary Committee to refer a matter to the EPO Disciplinary Board under Art. 6(2)(c) RDR is a final decision within the meaning of Art. 8(1) RDR and hence appealable to the DBA. In its two decisions D 2/18 of 5 April 2019 date: 2019-04-05 (appeal by the President of epi) and D 2/18 of 8 April 2019 date: 2019-04-08 (appeal by the professional representative), the board answered this question in the affirmative based on the wording "final decision" in Art. 6(3) RDR. However, in D 1/18, a subsequent decision, the interpretation given in decisions D 2/18 was not followed and the board held that only a decision which effectively terminates the disciplinary proceedings by a substantive decision vis-a-vis the professional representative is meant to be a "final decision" under Art. 8(1) RDR. The Disciplinary Committee's decision under Art. 6(2)(c) RDR to refer the complaint before it to the Disciplinary Board does not terminate first-instance proceedings, as it does not result in a dismissal of the complaint or a penalty under Art. 4(1) RDR. Rather, the proceedings continue before the other first-instance disciplinary body. The referral has only a procedural effect. It is thus not a final decision within the meaning of Art. 8(1) RDR and is not appealable. See also D 19/19 of 12 November 2021, which followed the approach in D 1/18.