3.1. Admissibility of the appeal - statement of the relief sought

Appellants in appeal proceedings before the DBA must seek a specific relief (Art. 6(1), first sentence, RPDBA, see also e.g. D 1/20). According to D 1/20, the requirement to seek a specific relief is satisfied if the imposition of a disciplinary measure is requested but the nature of the measure is left to the discretion of the DBA. It is not satisfied, however, if the appellant makes a request tantamount to a request for a declaratory finding (in the case in hand, a request that it be clarified whether use of the title “European patent Litigator” constituted a misleading statement under Art. 1(1) RDR). See also in this chapter V.C.3.4.

In D 2/20 (appeal by the epi President) the DBA found the appeal inadmissible on the first ground of appeal (cost reimbursement decision) for lack of statement of the relief sought by the appellant, contrary to Art. 6(1) RPDBA. According to the DBA, “relief" in Art. 6(1) RPDBA had to be interpreted in view of the overall purpose of the appeal proceedings, which was to establish if the legal effects of the impugned decision were correct or not. It was not sufficient to request, as the appellant had done, that a decision be set aside without requesting (and reasoning why) a different (or further) legal effect should result from the appeal proceedings (see also D 40/21 in the context of appeals under Art 24 REE). In the specific circumstances of D 55/21, however, the DBA was of the view that the epi President could not have been expected to request a specific and different substantive outcome. The epi President had explicitly stated why the decision was wrong and that it had to be set aside, and the appeal was found admissible.

The appeal was also found to be admissible in D 1/22 (appeal by the epi President), which concerned a decision of the epi Disciplinary Committee dismissing the complaint. The DBA noted that according to D 55/21, for an appeal of the epi President to be admissible, it was sufficient to indicate why the decision under appeal was wrong in substance. Depending on the circumstances, it may not be necessary to specifically request what the expected substantive outcome should be; a request for remittal on the merits may suffice (see also D 2/20). In the case in hand, the DBA regarded a request for remittal as sufficient with respect to the breach of Art. 6(3) and 20 RDR invoked by the appellant, allegedly amounting to substantial procedural violations (see in this chapter V.C.3.3.1 and V.C.3.3.2). On the substantive issue (applicability of the RDR, see in this chapter V.C.3.2), the appellant considered that the epi Disciplinary Committee should not have dismissed the matter. Since the issue was about jurisdiction and the defendant was not called upon to present a defence, the request for remittal on the merits was also found to be sufficient.