D 0012/88 (Advertising by firm of patent agents) of 15.11.1990

1. The ban on advertising contained in point 2 of the Code of Professional Conduct results in a restriction of the fundamental right to freedom of expression which is compatible with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights - ECHR). In the last analysis, Article 134(8) EPC provides the legal basis for this regulation in the Code of Professional Conduct for professional representatives before the European Patent Office (Code of Professional Conduct).

2. The ban on advertising imposed on professional representatives before the European Patent Office represents a balance between the right to freedom of expression on the one hand and, on the other, the need for the law to protect the reputation of others (i.e. here: to preserve the dignity of the profession of professional representatives before the European Patent Office) and the rights of others (here in particular: ensuring fairness in competition between members of the Institute of Professional Representatives before the European Patent Office). A restriction on the fundamental right to freedom of expression enshrined in law and based on such a balance satisfies the principle of proportionality contained in Article 10(2) ECHR.

3. A member of the Institute of Professional Representatives before the EPO is responsible for articles in the press with an advertising character based on information supplied by him. It is not sufficient for members of the press to be referred expressly to the ban on advertising in the Code of Professional Conduct since, by virtue of the constitutional guarantee of press freedom, the press is not bound by the provisions governing the professional conduct of professional representatives before the EPO or by wishes regarding the content of its reports.