Pages 123-133

XIV. REPRESENTATIVES, EPI, DISCIPLINARY MATTERS

XIV.3 - Regulation on discipline for professional representatives (OJ EPO 1978, 91, OJ EPO 2008, 14)

THE ADMINISTRATIVE COUNCIL OF THE EUROPEAN PATENT ORGANISATION,

HAVING REGARD to Article 134a, paragraph 1(c), of the European Patent Convention,

WHEREAS it is desirable to adopt provisions governing the disciplinary power to be exercised by the Institute of Professional Representatives and by the European Patent Office on professional representatives,

HAS ADOPTED THIS REGULATION:

Part I

Rules of professional conduct

Article 1

General professional obligations

(1) A professional representative shall exercise his profession conscientiously and in a manner appropriate to its dignity. In particular, he shall not knowingly make any false or misleading statement.

(2) A professional representative shall conduct himself in such a manner as not to prejudice the necessary confidence in his profession.

Article 2

Professional secrecy

A professional representative shall be bound not to disclose information accepted by him in confidence in the exercise of his duties, unless he is released from this obligation.

Article 3

Special provisions on conduct towards clients

(1) A professional representative who is unwilling to accept a call upon his professional services or who withdraws his services shall forthwith inform the client. In the latter case, he shall take appropriate measures to enable the client to avoid detriment.

(2) A professional representative shall refuse or withdraw his services if acceptance or continuation would necessitate his dealing with a particular matter on which he has represented or advised another client with opposing interests and the conflict has not been resolved.

Part II

Disciplinary measures

Article 4

Disciplinary measures

(1) A professional representative who fails to comply with the Rules of professional conduct may incur one of the following penalties:

(a) a warning,

(b) a reprimand,

(c) a fine not exceeding DM 20 000,

(d) deletion from the list of professional representatives for not more than six months,

(e) deletion from the list of professional representatives for an indefinite period.

(2) The penalties provided for in paragraph 1 may also be incurred if a professional representative fails to pay within two months of the due date a subscription in accordance with Article 6 of the Regulation on the Establishment of an Institute of Professional Representatives before the European Patent Office.

Part III

Disciplinary bodies

Article 5

Disciplinary bodies

Infringements of the Rules of Professional Conduct may be considered by the following bodies:

(a) the Disciplinary Committee of the Institute of Professional Representatives before the European Patent Office,

(b) the Disciplinary Board of the European Patent Office,

(c) the Disciplinary Board of Appeal of the European Patent Office.

Article 6

Powers and responsibilities of the Disciplinary Committee of the Institute

(1) The Disciplinary Committee shall consider any alleged breach of the Rules of Professional Conduct which may be brought to its notice in writing.

(2) After any preparatory inquiries which it may wish to carry out the Disciplinary Committee shall decide either to:

(a) dismiss the matter;

(b) issue a warning or reprimand, or

(c) refer the matter, together with the relevant papers, to the Disciplinary Board of the European Patent Office.

(3) If the Disciplinary Committee does not take a final decision within 9 months of an alleged breach of the Rules of Professional Conduct being brought to its notice, it shall within that time limit submit a report on the state of the proceedings to the Chairman of the Disciplinary Board of the European Patent Office.

(4) On receiving the report or on expiry of the time limit referred to in paragraph 3, the Chairman of the Disciplinary Board shall either:

(a) extend the time limit for consideration of the matter by the Disciplinary Committee, or

(b) transfer the matter to the Disciplinary Board.

(5) The Chairman may grant no more than two extensions, totalling not more than 6 months, under paragraph 4(a).

Article 7

Powers and responsibilities of the Disciplinary Board of the European Patent Office

(1) The Disciplinary Board of the European Patent Office shall consider any alleged breach of the Rules of Professional Conduct which is referred to it by the Disciplinary Committee or transferred to it by its Chairman under Article 6, paragraph 4(b).

(2) After any preparatory inquiries which it may wish to carry out, the Disciplinary Board shall decide either to:

(a) dismiss the matter; or

(b) impose one of the penalties provided for in Article 4.

Article 8

Powers and responsibilities of the Disciplinary Board of Appeal

(1) The Disciplinary Board of Appeal shall hear appeals against final decisions, including dismissals, of the Disciplinary Committee of the Institute and the Disciplinary Board of the European Patent Office.

(2) Appeals may be filed by the professional representative concerned, the President of the Council of the Institute and the President of the European Patent Office.

Article 9

Composition of the Disciplinary Board of the European Patent Office

(1) The Disciplinary Board shall consist of three legally qualified members of the European Patent Office and two professional representatives. The Chairman shall be a legally qualified member. The President of the European Patent Office may if necessary set up more than one Board.

(2) The members of the Disciplinary Board shall be appointed by the President of the European Patent Office for a period of three years. The professional representatives shall be selected from a list proposed to the President by the Board of the Institute. The President shall determine the number of professional representatives required. The number of professional representatives on the list must be at least twice this number. Professional representatives sitting on the Disciplinary Board may not simultaneously sit on another Disciplinary Board or on the Board of the Institute or be employed by the Institute on a full or part-time basis.

(3) Members of the Disciplinary Board may be relieved of their duties during their term of office by the President of the European Patent Office only if serious grounds for such action exist.

Article 10

Composition of the Disciplinary Board of Appeal

(1) The Disciplinary Board of Appeal shall consist of three legally qualified members of the European Patent Office and two professional representatives. The Chairman shall be a legally qualified member.

(2) The members of the Disciplinary Board of Appeal shall be appointed by the Administrative Council for a period of five years. The legally qualified members shall be appointed on a proposal of the President of the European Patent Office. The professional representatives shall be selected from a list proposed to the Administrative Council by the Board of the Institute. The Administrative Council shall determine the number of professional representatives required. The number of professional representatives on the list must be at least twice this number. Members of the Disciplinary Board of Appeal may not simultaneously sit on another disciplinary body or on the Board of the Institute or be employed by the Institute on a full or part-time basis.

(3) The members of the Disciplinary Board of Appeal may be relieved of their duties during their term of office by the Administrative Council only if serious grounds for such action exist.

(4) The professional representatives shall be assigned to individual sittings on the basis of a rota drawn up before the beginning of the year by the Chairman.

Article 11

Independence of members of disciplinary bodies

The members of disciplinary bodies shall be independent in the performance of their duties and in particular shall not be bound by any instructions in reaching their decisions.

Part IV

Procedure

Article 12

Right to be heard

Before taking any decision which might prejudice the interests of the representative concerned a disciplinary body shall give him an opportunity to comment. The President of the Council of the Institute and the President of the European Patent Office shall be given an opportunity to comment before any final decision is taken.

Article 13

Oral proceedings

(1) Oral proceedings shall take place either at the instance of the disciplinary body if it considers this to be expedient or at the request of the professional representative concerned.

(2)1Rule 115 EPC shall apply mutatis mutandis to oral proceedings provided for in this Article.

(3) The members of a disciplinary body shall be present at any oral proceedings conducted by that body. A person appointed to take the minutes shall also be present.

Article 14

Persons entitled to attend oral proceedings

The President of the European Patent Office, the President of the Council of the Institute, the professional representative and the person appointed under Article 17 shall be entitled to be present throughout oral proceedings. The President of the European Patent Office and the President of the Council of the Institute may each nominate some other person to attend on his behalf.

Article 15

Preparatory inquiries

Prior to taking a decision, the Chairman of the Disciplinary Board or of the Disciplinary Board of Appeal may entrust to one of the legally qualified members the task of conducting preparatory inquiries.

Article 16

Exclusion and objection

Article 24 of the European Patent Convention shall apply mutatis mutandis as regards the exclusion of and objection to members of any of the disciplinary bodies.

Article 17

Legal representation

The professional representative may be assisted at any stage of the proceedings by any legal practitioner qualified in one of the Contracting States or by any other professional representative.

Article 18

Obligation to supply information

Where proceedings against a professional representative are pending before a disciplinary body, the representative shall supply all necessary information and, on request, submit his files to the body, except in so far as this would be in conflict with his obligation to professional secrecy.

Article 19

Access to files

(1) Subject to paragraph 2, the person appointed under Article 17 shall be entitled to inspect all files and evidence and to receive copies of all documents.

(2) The right of access referred to in paragraph 1 may be refused if the Chairman of the disciplinary body is satisfied that this would entail a serious risk of prejudicing the disciplinary body's preparatory inquiries. This limitation shall be set aside in good time for the person appointed under Article 17 to be able to comment before the disciplinary body takes a decision on the merits.

Article 20

Confidentiality

Proceedings before disciplinary bodies shall not be public. Their deliberations shall be confidential.

Article 21

Decisions

(1) A decision of a disciplinary body shall state the reasons on which it is based and shall be given in writing. It shall be notified to the professional representative, the President of the Council of the Institute and the President of the European Patent Office. Complainants shall be informed of the results of the proceedings.

(2)2Rules 125, paragraph 4, 126 and 130 EPC shall apply mutatis mutandis.

Article 22

Appeals

(1) Notice of appeal must be filed in writing with the Disciplinary Board of Appeal within one month after the date of notification of the decision appealed from. Within two months after the date of notification of the decision, a written statement setting out the grounds of appeal must be filed.

(2) If the appeal does not comply with the requirements of paragraph 1, the Disciplinary Board of Appeal shall reject it as inadmissible.

(3) Article 111, paragraph 1, and paragraph 2, first sentence, of the European Patent Convention shall apply mutatis mutandis to appeals under this Article.

Article 23

Revision of decisions

(1) An application for the revision of a final decision may be made only on discovery of a fact which is of such a nature as to be a decisive factor in favour of the professional representative and which, when the decision was taken, was unknown to the disciplinary body which last dealt with the matter and to the professional representative.

(2) The application shall identify the decision to which it relates and shall also contain particulars of the facts and evidence showing that the conditions laid down in paragraph 1 have been fulfilled.

(3) The Disciplinary Board of Appeal shall decide on the admissibility of the application for revision. If it decides that the application is admissible, the application shall be referred for further decision on the merits to the disciplinary body which last dealt with the matter.

Article 24

Time limits

(1)3Rules 131 and 134 EPC shall apply to all time limits specified in this Regulation or fixed by a disciplinary body.

(2) A party to the proceedings who, in spite of all due care required by the circumstances having been taken, was unable to observe a time limit shall, upon application, have his rights re-established. The application must be filed in writing within one month of the removal of the cause of non-compliance with the time limit. Rule 136, paragraph 1, first sentence, last part, and paragraphs 2 and 4 EPC shall apply mutatis mutandis.

Article 25

Supplementary provisions

(1)4Article 113, paragraph 1, Article 114, Article 117, Article 125, Article 131 and Rule 120 EPC shall apply mutatis mutandis to proceedings before the disciplinary bodies.

(2) The disciplinary bodies shall adopt their own additional rules of procedure. These shall require the approval of the Administrative Council on a proposal from the Disciplinary Board of Appeal.

Part V

Miscellaneous

Article 26

Period of limitation

(1) Proceedings in respect of a failure to comply with professional obligations shall be barred after a period of five years. The period of limitation shall begin on the date of such failure.

(2) The period of limitation shall be interrupted by any procedural step taken in respect of such failure by a disciplinary body or one of its members against the professional representative concerned. Each interruption shall cause the period of limitation to begin again.

Part VI

Costs and enforcement

Article 27

Costs of proceedings

(1) Proceedings before disciplinary bodies shall be free of charge; only costs necessarily incurred for the purpose of the proceedings shall be recoverable.

(2) The professional representative, the Institute and the European Patent Office shall bear their own costs. However, if the matter is not dismissed, the final decision may stipulate, having regard to special circumstances, that the costs necessarily incurred by the Institute or the European Patent Office shall be borne, in whole or in part, by the professional representative concerned. If the matter is dismissed, the final decision may stipulate that the costs necessarily incurred by the professional representative shall be borne in whole or in part by the Institute.

(3) The disciplinary body shall fix, in a separate decision, the amount of costs to be refunded. Such decisions shall not be subject to appeal.

Article 28

Enforcement

(1) Failure on the part of a professional representative to pay a fine imposed upon him by a final decision or to refund any costs due from him shall be deemed to be a breach of the Rules of Professional Conduct.

(2) A final decision of a disciplinary body to delete a professional representative from the list of professional representatives shall take immediate effect as soon as it ceases to be subject to appeal. It shall be notified to the Legal Division of the European Patent Office.

Part VII

Final provisions

Article 29

Amendment of this Regulation

Proposals for amendments to this Regulation shall be made by the Council of the Institute acting by a two-thirds majority of its members. Amendments to this Regulation shall be adopted by the Administrative Council of the European Patent Organisation. The Administrative Council may also consider amendments acting of its own motion and after consulting the Council.

Article 30

Entry into force

This regulation shall enter into force on 21 October 1977.

Done at Munich, 21 October 1977

For the Administrative Council

The Chairman

Georges VIANÈS