Pages 721-729

BOARDS OF APPEAL

Decisions of the Disciplinary Board of Appeal

Decision of the Disciplinary Board of Appeal dated 14 September 1994 - D 11/91*

(Translation)

Composition of the board

Headword: Disciplinary penalty

International Covenant on Civil and Political Rights, New York, 19.12.1966:

Articles 2 and 14(3)(g)

ECHR: Articles 6(1) and 13

Protocol No. 1: Article 1

Protocol No. 7: Article 2(1)

Article: 15, 24, 134(8) EPC

RDR: Articles 1(1), 1(2), 2, 3(1), 4(1)(d) and (e), 6, 10, 13, 16, 18, 20, 22(3), 25(2)

Code of conduct: 1(c), 1(e), 4(a), 5(b) and (e)(a), 6

Additional Rules of Procedure of the Disciplinary Board of Appeal: Articles 3, 8(1), 12, 13(2), 14

Keyword: "Disciplinary proceedings - appeal - oral proceedings not public (confirmed) - request for separate ruling to be made on objections to procedure and objections to admissibility (rejected) - period for making submissions declared closed at oral proceedings - treatment of subsequent written submissions - content of minutes of oral proceedings - creation of disciplinary bodies and penalties ultra vires (no)" - "Disciplinary proceedings - disciplinary power - definition - exclusion and objection as auxiliary request (rejected) - binding nature of decision - ex officio action against infringements of the Rules of Professional Conduct occurring during proceedings (yes) - authority to act - charges amnestied under national law or not brought within national prescription period - effect with regard to international disciplinary bodies (none)" - "Professional representatives - discipline - defamatory remarks - exceptio veritatis - informing client" - "Professional representatives - blank power of attorney - use without client's knowledge" - "Disciplinary proceedings - obligation to submit information and to co-operate - conformity with Article 6(1) of the European Convention for the Protection of Human Rights (yes)" - "Disciplinary proceedings - appeal - referral to Disciplinary Board (no) - penalty - indefinite period - interpretation"

Headnote

I. The European Convention for the Protection of Human Rights contains provisions which express general principles of law common to the member states of the European Patent Organisation. As such these provisions should be regarded as forming part of the legal system of this Organisation and should be observed by all its departments. This therefore applies to Article 13, which guarantees each individual's right to be heard by a duly constituted tribunal. The "national authority" mentioned in this article is 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 European Patent Office became subject to the same set of professional regulations, controlled by a central body whose decisions are open to effective remedy before a body of second instance whose independence is guaranteed by the rules governing its composition.

The drafting of these regulations and the establishment of these bodies was thus consistent with the general principles of law, in particular those expressed in the European Convention for the Protection of Human Rights.

II. In order to ensure that the penalty is proportionate to the seriousness of the charges and that the maxim according to which penalties should not be arbitrary but fixed or predetermined is respected, Article 4(1)(e) of the Regulation on discipline for professional representatives, OJ EPO 1978, 91 (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, which, in its decision, should fix the said period and give reasons for its choice.

Summary of facts and submissions

I. The procedure

1. By letter received on 20 November 1991, the appellant appealed against a decision dated 14 November 1991 taken by the Disciplinary Board of the European Patent Office (hereinafter "Disciplinary Board") in consolidated cases DB 02/88 and DB 01/90 and ordering his deletion from the list of professional representatives for an indefinite period. ...

2. In interlocutory decision D 11/91 of 18 May 1994 (OJ EPO 1994, 401), to which express reference is made, the present board held that the appeal was admissible and, in partial compliance with a specific request, ordered a number of documents produced by one of the complainants to be excluded from the proceedings, but refused to hand over to the appellant those documents which he had requested be returned to him.

3. In a communication dated 17 February 1994, the appellant was asked to comment on the way in which the board could decide on the various grounds which it still had to rule on and which he had submitted in his statements dated 16 January, 19 February, 3 March, 3 June and 22 July 1992. The appellant provided his comments in a letter dated 29 April 1994.

4. At the end of the oral proceedings, which took place on 10 June 1994, the chairman of the board announced that the decision was reserved and would be communicated to the party as soon as possible.

II. The facts

...

III. The decision under appeal

...

IV. Grounds for appeal

...

104. After having been invited in a communication in accordance with Articles 13(2) and 14 of the Additional Rules of Procedure of the Disciplinary Board of Appeal dated 17 February 1994, OJ EPO 1980, 188, to comment as to how the board could decide on the present case, the appellant developed the following arguments in his supplementary submissions dated 14 May 1994:

109. ... the board had refused to apply the provisions of the European Convention for the Protection of Human Rights and had deliberately infringed the following:

110(a). Article 6(1), for the following reasons:

111. - The board of appeal had not been established by law but by the Administrative Council of the EPO;

112. - The procedure had not been carried out within a reasonable period of time;

113. - The disciplinary bodies of the EPO did not constitute an independent tribunal because their members were subordinate to and in the service of the EPO;

114. - At each stage of the procedure members sat on the various bodies which were involved in the investigation and judgment of the same persons;

115. - Article 20 of the Regulation on discipline for professional representatives, OJ EPO 1978, 91 (RDR) stipulates that proceedings before the disciplinary bodies are not public;

116. - Under Article 18, where proceedings against a professional representative are pending before a disciplinary body, the representative must supply all information and submit his files (see judgment of the European Court of Human Rights dated 25.2.1993, Case No. 82/1921/334/407, Funke vs. France, published in: Recueil Dalloz Sirey 1993, J-457 and SC-387; Journal du Droit International 1994, 780; cited in 102 above);

117. - The penalty under appeal was contrary to the principle whereby the penalty must be proportionate to the seriousness of the charges and to the requirement for certainty in that it had been ordered for an indefinite period.

118(b). Article 13, for the following reasons:

• the board of appeal was not a national authority;
• its decisions could not be further appealed.

119(c). Furthermore, the provisions of Articles 1 and 8 of Protocol No. 1 and Article 2(1) of Protocol No. 7 had also been infringed in that on the one hand the legal proceedings instituted against Mr ..., not being provided for by the law, constituted an interference in his private and professional life and, on the other hand, Mr ..., as explained above, was not able to appeal further.

B. As to the merits:

...

V. The oral proceedings

141. At the oral proceedings which took place on 10 May 1994 before the board, Mr ... developed the arguments contained in his last written statement and emphasised in particular that according to him ... Article 4 RDR was contrary to the principle whereby the penalty must be proportionate to the seriousness of the charges in that it instituted deletion for an indefinite period ...

142. As to the merits ...

VI. The requests

...

VII. Documents submitted during the deliberation

...

Reasons for the decision

1. The admissibility of the present appeal was allowed in decision D 11/91 dated 18 May 1993.

2. Preliminary matters.

...

3. Objection to jurisdiction of the board.

3.1

...

3.2 The present request questions whether the disciplinary law applicable to professional representatives before the European Patent Office conforms with the internal law of the European Patent Organisation, the national laws to which these representatives are subject in the states of which they are nationals, and various international conventions, including the European Convention for the Protection of Human Rights of 4 November 1950.

3.3 With regard to the latter Convention, the board is of the opinion that it cannot be applied directly to the EPO because the EPO is not a signatory state. However, to the extent that the Convention contains rules which express general principles of law, these rules must be considered as forming part of the legal system of the EPO and must therefore be observed by all its departments. This therefore applies to Article 13 of the European Convention for the Protection of Human Rights, which aims, as does Article 2 of the International Covenant on Civil and Political Rights, to guarantee each individual's right to be heard by a duly constituted tribunal. This is an expression of a general principle of law common to the member states of the European Patent Organisation, which is thus binding on the Organisation. The "national authority" referred to in the above-mentioned Article 13 is meant to be understood as an authority which is competent under the law of the state concerned, in this case France. In ratifying the Munich Convention, the contracting states to the Convention, and therefore France, accepted a transfer of prerogatives in order to meet the need for equal treatment for professional representatives from all the contracting states practising before the same international organisation, which subjected them to the same set of professional rules controlled by a single disciplinary authority (the Disciplinary Committee or the Disciplinary Board), while offering them effective remedy before an instance whose independence is guaranteed by the rules governing its composition (Article 10 RDR).

3.4 Disciplinary power has been defined as the power to "impose a penalty which is intended to punish a violation of professional obligations". The authority with this power is the one which is qualified to nominate or approve candidates for the profession for which they apply. This is a principle of international law, as well as of French law in particular. Under Article 134(8) EPC the signatory states to the Munich Convention gave the Administrative Council of the EPO the power to approve European professional representatives entitled to represent natural or legal persons in proceedings instituted by this Convention. As a corollary of this they also conferred on the Administrative Council in accordance with the practices of international law the power to establish provisions relating to disciplinary power over representatives, their intention being to give it the right to implement the necessary means to exercise said power. This includes the power to define the rules of the profession, to set out the penalties for non-observance of these rules and to establish competent bodies to deal with these matters. The disciplinary procedure and penalty in fact relate only to infringements of obligations of a professional nature which international authorities have accepted affect the career of the person concerned but not his property or freedom, and thus can be distinguished from criminal penalties, and are independent of any court decision. The European Court of Human Rights has also enshrined in law the autonomy of disciplinary legal provisions (see Judgment of 23 June 1981 in re Le Compte, Van Leuven, published in: Neue Juristische Wochenschrift (NJW) 1982, 2714, cited above).

3.5 Finally, with regard to the internal law of the European Patent Organisation, the board takes the view that the disciplinary bodies cannot be deemed to be illegal solely by virtue of the fact that they are not listed in Article 15 EPC. In this article, the intention of the signatory states was actually to define the departments charged with the procedures prescribed by the Convention, while in Article 134(8) EPC they conferred on the Administrative Council the simple power to adopt provisions relating to disciplinary power, which it did in the manner described by the appellant in his supplementary submissions dated 22 July 1993.

3.6 Because in the present case the referral to the disciplinary bodies conforms with the internal law of the European Patent Organisation and does not appear to be contrary to the general principles of international law, the board is of the opinion that it is competent to rule on the present appeal.

4. Exclusion and objection under Article 24 EPC

...

5. Other objections to procedure

...

6. Objections to admissibility

...

7. The merits

...

7.8.3 Furthermore, within the framework of the disciplinary provisions concerned, the undefined nature of the penalty under Article 4(1)(e) RDR is ambiguous and thus not compatible with the fixed (or predetermined) nature which is a fundamental requirement for any penalty in order to avoid arbitrariness. In fact, in line with the German expression "unbefristete Dauer" and the English "indefinite period", it can be interpreted as a period "qui n'est pas précisée, fixeé" (which is not specified or fixed) or which is "illimitée" (unlimited). Both these definitions can be found in the "Dictionnaire alphabétique et analogique de la langue française - Le Grand Robert" (the "Grand Robert" French dictionary).

The board takes the view that it does not have to accept the interpretation of the wording of Article 4(1)(e) RDR as meaning "deletion for an unlimited period", which is effectively equivalent to deletion once and for all. As the penalty immediately below this is deletion for not more than six months, such an interpretation would not ensure that the penalty was proportionate to the seriousness of the prohibited acts and the circumstances in which they were committed. If this had been the intention of the authors of the text, it would have sufficed for them to have qualified the deletion by the words "once and for all" or indeed not to have qualified it at all.

Likewise, neither can the board accept the interpretation "durée qui n'est pas précisée" (period which is not specified) or "pas fixée" (not fixed), as this implies the possibility of reinstatement on the list, while the texts applicable to disciplinary matters involving professional representatives define neither the conditions for reinstatement nor the rules of procedure and the competent body for ruling on it. The professional representative on whom such a penalty is imposed is thus faced with a legal vacuum or is subject to the arbitrariness of professional bodies. Conversely, if pursuant to Article 4(1)(d) RDR a penalty is imposed for a period of time which is fixed in the decision, reinstatement is automatic and unconditional once that period of time has expired.

Thus, although this would have the effect of depriving Article 4(1)(d) RDR of all real significance, the board considers that, in order to be applicable as it stands, Article 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, which, in its decision, should fix the said period and give reasons for its choice.

7.9 The board considers on the one hand that the need to interpret the provisions of Article 4(1)(e) RDR in order to apply in the present case a penalty of a fixed length taking into account the attenuating circumstances described in 7.8.2 above and on the other that the need not to prolong unnecessarily a procedure relating to facts which are over seven years old are special reasons within the meaning of Article 12, last part of the sentence, of its Additional Rules of Procedure for not remitting the case to the Disciplinary Board.