Zusammenfassung von EPC2000 Art 125 für die Entscheidung J0004/23 vom 25.10.2023

In J 4/23 the appeal was against the decision of the Legal Division rejecting the appellant's request to be entered on the list of professional representatives before the EPO (the "List"). The appellant had relied on erroneous information published on the EPO's website and based his appeal on the principle of the protection of legitimate expectations. It was not disputed that the appellant had not passed the European qualifying examination (EQE) and that there was no legal basis in the EPC under which the EPO could grant an exemption from the requirement under Art. 134(2)(c) EPC to pass the EQE for being entered on the List. The EPO's website at the time of the request provided the following information: "... in accordance with Article 134(7) EPC, the Vice-President in charge of DG5 is entitled to grant exemption from requirements (a) and (c) of Article 134(2) EPC", referring to the Decision of the President of the EPO dated 1 December 2011 delegating his powers to decide on requests for exemption from requirements for entry on the List (OJ 2012, 13). The Legal Board noted that this information merely stated that a power had been delegated by the President of the Office to VP5 and that it could not be deduced from such information that the appellant would be entered on the List. The Legal Board recalled that the principle of the protection of legitimate expectations was subject to several limitations. Not every expectation held by a person was automatically a legitimate one within the meaning of this principle. Whether an expectation was legitimate must be assessed by applying the principle to the facts of the case and, depending on the circumstances of the case, the relief sought may or may not be granted. It was therefore inherent in the principle of the protection of legitimate expectations that a person could only successfully invoke an expectation on which they could, on an objective basis, legitimately rely. Therefore, it must be established that, on an objective basis, it was reasonable for a requestor to have been misled by the information on which they relied. The Legal Board pointed out that the appellant had been immediately informed by the EPO that the statement on the website was erroneous. Moreover, the terms and conditions of use of the EPO's website included a disclaimer and, whilst this did not mean that the EPO's website was excluded per se as a source of information which may lead to the application of the principle of the protection of legitimate expectations (J 10/20), such information must not be taken at face value. The Legal Board referred to the general legal principle that a person cannot successfully invoke ignorance of the law. The information on the EPO's website contained an explicit reference to the relevant legal norms of the EPC. A person reading these provisions, acting in a reasonable manner, would have immediately realised that the information on the website was erroneous since the wording of paragraphs 2 and 7 of Art. 134 EPC was unambiguous and left no room for any doubt: exemption from the requirements of Art. 134(2) EPC was expressly provided (see Art. 134(7)(a) EPC) only for the requirement set out in Art. 134(2)(a), but not for the one in Art. 134(2)(c) EPC. The Legal Board concluded that the appellant had failed to establish that, on an objective basis, it was reasonable for him or any other person acting in a reasonable manner to have been misled by the information on the EPO's website. Thus, he had not demonstrated that the expectation on which he relied was legitimate. Moreover, the appellant had failed to demonstrate that he suffered any disadvantage. Rather, he had sought to create, by way of the principle of protection of legitimate expectations, non-existing rights under the EPC to be exempted from the requirement to pass the EQE and to have VP5 evaluate whether he was entitled to the exemption. Since there were no such rights in the first place, they could not be lost. The appellant had cited J 10/20 and G 5/93 in support of his case, arguing that the EPO was bound by "its announcements" and by "its own published interpretation" respectively. The Legal Board distinguished the situation in the case in hand from that in those cases. Unlike in J 10/20, in the case in hand the appellant could not rely on the expectation invoked. Therefore, there was "good reason" - in the words of J 10/20 - not to honour the incorrect statement on the EPO's website. The situation in G 5/93 concerned a change in the case law of the Boards of Appeal and a subsequent change of practice of the EPO. Moreover, in contrast to the information referred to in G 5/93, in the case in hand the information on the EPO's website could not be said to constitute an "interpretation" of Art. 134(2) or (7) EPC. The appeal was dismissed.