3. Disciplinary matters

In D 1/23 there was an appeal by the epi President against a decision of the epi Disciplinary Committee summarily dismissing a complaint made in respect of two professional representatives. The complaint, submitted anonymously to the epi Secretariat by email, pointed out that the two professional representatives: had an email that appeared to be that of a third person who was not a professional representative before the EPO; did not appear on the website that could be linked to that email; and were not at all active, or possibly already dead..

The epi President requested that the decision under appeal be set aside, based on three grounds: (1) the Chamber of the epi Disciplinary Committee dealing with the complaint (the "Chamber") erred by summarily dismissing the complaint when the alleged facts, if proven correct, could have constituted a breach of the rules of professional conduct; (2) the complaint should have been admissible even when filed anonymously; and (3) the Chamber had failed to use its own powers to investigate the complaint.

The DBA explained that before a complaint can be summarily dismissed under Art. 18 RPDC, the Chamber must establish that the complaint clearly does not disclose any fact that would only raise the suspicion that a breach of the rules of professional conduct had occurred. Thus, the primary requirement for the application of Art. 18 RPDC was directed at the facts only, and not at their final legal assessment. A complaint that passes the hurdle of Art. 18 RPDC, in the sense that it should proceed to a more detailed examination and the involvement of the professional representative concerned, need not set out a complete and convincing case: it is sufficient if the facts presented make an allegation of a possible breach not wholly implausible, so that the facts presented may well be a result of a breach, even if further investigations may be necessary to establish whether a breach indeed occurred..

According to the DBA, no recognisable analysis was made in the Chamber’s decision whether the facts of the complaint, if proven, may have represented a breach of the rules of professional conduct. Even under the assumption that the Chamber implicitly examined the required conditions of Art. 18 RPDC, none of the two apparent reasons given in the decision (i.e. formal deficiencies in the complaint, such as the lacking name, address and signature, and lack of at least a passive legitimation) could justify a summary dismissal. It was not disputed that a complaint under the RDR could not be based on acts of others who may illegally exploit the name of a deceased representative (as long as the others are not epi members). However, the formulations of the complaint left open the possibility that the representatives were still alive and knowingly permitted the use of their names. This would clearly be a breach of Art. 1(1) RDR. Posing as a straw man was equivalent to the making of a misleading statement, which would also contravene point 3(b) and (d) CC. Moreover, allowing a person who was not entitled to act as a professional representative to carry out the functions reserved for professional representatives with the help of a straw man would be a circumvention of the law (G 4/97)..

The DBA concurred with the Chamber that anonymous complaints should not be encouraged. An anonymous complaint by an epi member, if later discovered, might in itself result in disciplinary measures against that member, as a direct violation of point 5(a) CC. Notwithstanding, an examination of an anonymous complaint was still required in view of the overall purpose and legal structure of the disciplinary proceedings under the RDR..

The DBA concluded that the facts of the case demonstrated that more detailed investigations were required before the complaint could be dismissed, or possibly a disciplinary measure may be decided. Such further investigations had to be conducted by a first-instance body, in the present case the Disciplinary Board of the EPO. A remittal to the epi Disciplinary Committee did not seem possible, in view of the expiration of the nine-month period under Art. 6(3) RDR (D 1/18, D 55/21).