D 0012/88 (Advertising by firm of patent agents) 15-11-1990

1. The appeal complies with Article 22(1) of the Regulation on Discipline for Professional Representatives (OJ EPO 1978, 91), hereinafter referred to as the Regulation on Discipline; it is admissible.

2. The first question to be examined is whether the restrictions on freedom of expression laid down in point 2 of the Code of Professional Conduct (OJ EPO 1986, 331) accord with the principles set out in Article 10 ECHR:

2.1. Article 134(8)(c) EPC stipulates that the Administrative Council may adopt provisions governing any disciplinary power to be exercised by the Institute over professional representatives. The Administrative Council adopted the Regulation on Discipline by virtue of that authority.

2.2. Article 1 of the Regulation sets out the general professional obligations in the form of a blanket clause, since it would be difficult to list them individually. This blanket clause naturally includes general, i.e. non-specific, legal concepts, such as "conscientiously", "in a manner appropriate to its dignity", ..." shall conduct himself in such a manner as not to prejudice the necessary confidence in his profession", the specific implications of which have to be spelt out by the bodies responsible for applying the law. Articles 2 and 3 also contain general legal concepts.

2.3.Under Article 4(c) of the Regulation on the Establishment of an Institute of Professional Representatives before the European Patent Office (OJ EPO 1978, 85), hereinafter referred to as the Regulation on the Establishment of an Institute, which was adopted by the Administrative Council on the basis of Article 134(8)(b) EPC, the Institute must ensure that its members comply with the Rules of Professional Conduct in Articles 1 to 3 of the Regulation on Discipline. For this reason the Institute's Council, drawn from its membership, adopted the Code of Professional Conduct (cf. Articles 7(1) and 9(3) of the Regulation on the Establishment of an Institute).

2.4. The Institute's Council has a Disciplinary Committee consisting of Institute members (cf. Article 11(1) and (2) of the Regulation on the Establishment of an Institute). Under Article 5(a) of the Regulation on Discipline, the Disciplinary Committee considers infringements of the Rules of Professional Conduct set out in Articles 1 to 3 of that Regulation. It must therefore examine every complaint submitted to it in writing concerning infringement of the Rules of Professional Conduct and then decide what action is to be taken (cf. Article 6(1) and (2) of the Regulation on Discipline). The Disciplinary Committee is thus responsible for applying the law enshrined in the Rules of Professional Conduct and is therefore empowered to spell out the specific implications of the general legal concepts set out therein (cf. 2.2 above). In doing so, however, it must act within the limits of its discretionary powers.

2.5. Rules of Professional Conduct were enshrined in Articles 1 to 3 of the Regulation on Discipline with the intention of guaranteeing the good name and trustworthiness of professional representatives who are Institute members. The Code of Professional Conduct elucidates the substance of these rules and represents, furthermore, a means by which the object referred to in Article 4(c) of the Regulation on the Establishment of an Institute can be achieved (cf. 2.3 above). Since the Disciplinary Committee can also impose penalties to oblige members of the Institute to comply with the Rules of Professional Conduct (cf. Article 4 of the Regulation on Discipline), the Code also sets out the specific implications inferred by the Disciplinary Committee (cf. 2.4 above) from the general legal concepts contained in those Rules (cf. 2.2 above).

2.6. Article 10(1) ECHR states that the right to freedom of expression "shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers". Since, however, the exercise of these freedoms carries with it duties and responsibilites, paragraph 2 of this Article lays down that freedom of expression may be subject, inter alia, to certain restrictions prescribed by law and necessary in a democratic society for the protection of the reputation or rights of others. The following conclusions may be drawn from the above:

- The fundamental right of freedom of expression may be restricted only by legislation (principle of the primacy of law).

- This restriction must satisfy the requirement of proportionality, i.e. a balance must exist between the fundamental right to freedom of expression on the one hand and, on the other, the obligation - which restricts that fundamental right - to protect the reputation or rights of others. Thus, it would be disproportionate to restrict the fundamental right to freedom of expression where there was insufficient reason for doing so or where doing so would in the final analysis render that restricted fundamental right ineffective.

2.7. Article 1 of the Regulation on Discipline stipulates that a professional representative must exercise his profession in a manner appropriate to its dignity. Point 2 of the Code of Professional Conduct sets out the specific implications of the general legal concept contained in that Article and worded "... in a manner appropriate to its dignity" (cf. 2.2 above), a step necessary to enable the Disciplinary Committee to perform the task of applying the law enshrined in Article 1, which falls to it under Article 6 of the Regulation on Discipline. The said point 2 states that it is contrary to the dignity of the professional representatives' profession to attract clients through advertising. The restrictions on the fundamental right to freedom of expression set out therein are thus intended to prevent activities of this kind, declared to be incompatible with the dignity of the professional representatives' profession. After a detailed examination, the Board has concluded that the provisions of point 2 of the Code of Professional Conduct accord with the intent and purpose of the general professional obligations laid down in Article 1 of the Regulation on Discipline and are compatible with the principle that administrative bodies must act within the limits of their discretionary powers (cf. 2.4, last sentence, above). They therefore require no additional legal basis. Article 1 of the Regulation on Discipline, adopted in accordance with the powers conferred by Article 134(8)(c) EPC, thus constitutes a legal basis for making provisions, as required by Article 10(2) ECHR, for the restriction of freedom of expression (cf. 2.6 above, principle of the primacy of law). Nor is the position in any way altered by the fact that Article 1 of the Regulation on Discipline makes no direct mention of advertising or statements of opinion in connection therewith (cf. 2.5 above). The appellant's objection that this Article cannot therefore serve as a legal basis for the Code of Professional Conduct is thus unfounded.

2.8. These considerations are fully in line with a judgment of the European Court of Human Rights (point 46 of the Reasons for that Decision; cf. GRUR Int. 1985, 469) which states that legislative authority in respect of rules governing a profession can be derived from the autonomous right of professional organisations to promulgate rules by virtue of the statutory power given them, and that accordingly rules adopted by such organisations by virtue of that power are deemed to be "laws" within the meaning of Article 10(2) ECHR.

2.9. Point 2 of the Code of Professional Conduct is founded on the conviction that the dignity of the professional representatives' profession is diminished if Institute members endeavour to obtain work by comparing services or give an impression of so endeavouring. It is also felt that such conduct is contrary to the principle of fairness to which, as is generally recognised, pre-eminent importance is attached in competition between Institute members. These provisions, accordingly, are intended to prevent Institute members from issuing communications which have or could have an advertising character. On the other hand, the ban does not apply to the communication of information and ideas without any advertising effect. The appellant's stated view that these provisions totally rule out communications by Institute members is thus incorrect. Moreover, the freedom of Institute members to hold opinions and to receive information and ideas remains unaffected. The Board therefore believes that the restrictions on the fundamental right to freedom of expression set out in point 2 of the Code of Professional Conduct satisfy the requirement of proportionality laid down in Article 10 ECHR (and also the principles elaborated by the Court of Justice of the European Communities and the European Court of Human Rights in case law relating to that Article). This is because they are based on a balance between that fundamental right on the one hand and, on the other, the obligations - which restrict that fundamental right - relating to good name and reputation (dignity of the professional representatives' profession) and the rights of others (fairness in competition between Institute members).

2.10. The Board considers that the appellant has not sufficiently substantiated his assertion that there has been a general trend in the EPC Contracting States towards a more liberal application of the rules of professional conduct. For that reason alone, therefore, the appellant's request made in conjunction with that assertion for account to be taken of this allegedly more liberal application of the rules of professional conduct at European level when interpreting the provisions laid down in point 2 of the Code of Professional Conduct is without foundation. Moreover, the appellant's representative conceded in the course of oral proceedings that the articles in the press cited against the appellant would also be in breach of the extremely liberal regulations currently applying to advertising by the legal profession in at least one Contracting State.

2.11. In the Board's view, the only possible way of giving proper legal effect to an alleged liberalisation of the rules of professional conduct at European level is to revise the Code of Professional Conduct. As an instance that applies the law, however, the Board of Appeal is not authorised to make such changes, but is obliged to apply the Code of Professional Conduct from time to time in force. Furthermore, the Code quite clearly does not permit the more liberal application of the rules of professional conduct, as was submitted by the appellant. That is another reason why the appellant's request (cf. 2.10 above) cannot be allowed.

2.12. Accordingly, the restrictions on the fundamental right to freedom of expression laid down in point 2 of the Code of Professional Conduct accord with the principles of Article 10 ECHR. They are therefore legally binding on Institute members insofar as their work relates to the European Patent Convention (EPC).

3. That the appellant let it be known that he is a professional representative before the EPO is not in doubt. This emerges clearly from a number of passages in the articles which appeared in the press. Nor is this disputed by the appellant, who is, moreover, a member of the Institute since his name figures on the list of professional representatives (cf. Article 5(1) of the Regulation on the Establishment of an Institute). The Disciplinary Committee was therefore able to impose on the appellant one of the disciplinary measures provided for in Article 6(2)(b) of the Regulation on Discipline in the event that the Rules of Professional Conduct (Articles 1 to 3 of the Regulation on Discipline) had not been complied with.

4. The extracts from articles in the press contain an abundance of information which, in the Board's view, can only have come from the appellant himself because they contain for the most part relatively detailed and, according to the appellant, accurate particulars of the worldwide business connections, organisational structure, range of services and achievements of the firm of patent agents run by the appellant. Since this information was thus supplied by an Institute member it needs to be established whether that information, in the form of articles in the press, contravenes the provisions laid down in the Rules of Professional Conduct (Articles 1 to 3 of the Regulation on Discipline) and in point 2 of the Code of Professional Conduct. No legal significance can of course be attached to the fact that the appellant informed the press that he was prevented by rules of professional conduct from indulging in any form of advertising. The same applies to the associated request not to write too much about him (the appellant). The facts of the matter are as follows: in the first place, the provisions referred to above do not apply to the activities of the press, who accordingly do not have to adhere to them. Secondly, by virtue of the press freedom guaranteed in a democratic State, members of the press were not obliged to comply with the appellant's wishes. The appellant could not therefore realistically expect them to publish only information in line with those provisions. Nor is there any reason for assuming that the appellant took steps to eliminate or at least reduce the advertising character of the articles in the press. Moreover, the appellant was, as he himself said, fully aware of the ban on advertising contained in the Code of Professional Conduct. It follows from the foregoing that the appellant cannot disclaim responsibility for the published information.

5. Clearly, the greater part of the content of these extracts from the press has an advertising character. ...

6. These extracts, for whose content the appellant must moreover assume full responsibility (cf. 4 above), thus clearly contravene the provisions of point 2(g) of the Code of Professional Conduct in view of their advertising character. That would be true even if the requirements of point 2(a), second paragraph, of the Code were met in the present case. That is not at all the case, however. The Board has to agree with the body of first instance when it says that there is no similarity between the commencement of the activities of an Institute member - or the other activities referred to in point 2(a), second paragraph, of the Code - and the situation created by the anniversary of a firm of patent agents.

7. Because he infringed point 2(g) of the Code of Professional Conduct, the appellant was in breach of the Rules of Professional Conduct (Articles 1 to 3 of the Regulation on Discipline). The Disciplinary Committee accordingly issued a warning to the appellant under Article 6(2)(b) of the said Regulation. This is the mildest disciplinary measure (cf. Article 4 of the Regulation on Discipline) and is therefore in no way inappropriate in the present case.

8. The contested decision must therefore be upheld. The appellant's requests for this decision to be set aside or for the complaint to be rejected and for the matter to be dismissed are thus refused. The same applies to the request that the costs necessarily incurred by the appellant be borne by the Institute. The latter request could only be allowed if the matter were dismissed (cf. Article 27(2), last sentence, of the Regulation on Discipline).