BOARDS OF APPEAL
Decisions of the Disciplinary Board of Appeal
Decision of the Disciplinary Board of Appeal dated 9 June 1997 - D 15/95
Composition of the board:
J.-C. De Preter
L. C. de Bruijn
Headword: Appealability of decisions in disciplinary matters
Article: 8 of the Regulation on discipline for professional representatives (RDR)
Keyword: "Appealability of a Disciplinary Committee decision dismissing a complaint (no)"
A Disciplinary Committee decision dismissing a complaint is a decision in the legal sense only as regards the professional representative concerned and the Presidents of the epi and EPO, and only they can appeal against it. Thus the person who made the complaint has no right of appeal, and any appeal he does file is irreceivable.
Summary of facts and submissions
I. In a letter dated 24 February 1995 the appellant wrote to the Disciplinary Committee of the Institute of Professional Representatives before the European Patent Office (epi) complaining that contrary to his express wish he had been omitted from the list of candidates for election as members of the Disciplinary Board of Appeal. Obviously Mr ..., without asking him, had put another German representative on the list instead. On ... the Disciplinary Committee decided to dismiss the matter on the grounds that the appellant had merely put forward suppositions and conjectures, and had not made a case for breach of the relevant professional rules by a professional representative before the EPO.
II. In a letter dated 18 September 1995 the appellant filed an appeal against the Disciplinary Committee's decision; he submitted grounds in further letters dated 11 October 1995, 11 and 25 February 1996, and 10 and 20 February 1997.
III. His main submission was that in saying he - the appellant - had merely put forward suppositions and conjectures the Disciplinary Committee had not only erred but had also discriminated against him in respect of third parties who had received a copy of the decision. He had expressly informed the epi General Secretariat that he remained available for the Disciplinary Board of Appeal; at no time had he withdrawn that statement. His removal from the list against his will, and the nomination of another representative in his stead, constituted inadmissible discrimination against him. His appeal was receivable because the epi's Code of Professional Conduct had extended the RDR to include cases involving identical parties, ie professional representatives only. In such cases, it was contrary to any system of law to deny right of appeal to the person making the complaint. By doing so, the Disciplinary Committee had wrongly made him the person actually concerned, and Article 107 EPC, which took precedence, must therefore apply. Also applicable - by virtue of Article 125 EPC - were principles of German law under which a person could not be arbitrarily condemned, without a hearing and with no possibility of redress.
IV. The appellant requested that
the matter be remitted to the Disciplinary Committee for it to conduct preparatory inquiries under Article 6(2) of its Additional Rules of Procedure (main request);
the matter be remitted to the Disciplinary Committee for it to conduct inquiries into the conduct of Mr ... (auxiliary request 1);
the matter be remitted to the Disciplinary Committee for it to set Mr ... a deadline for commenting on the appellant's letter of 24 February 1995 (auxiliary request 2);
the Disciplinary Committee's decision be set aside and inquiries conducted (auxiliary request 3).
V. The board gave the Presidents of the EPO and epi the opportunity to comment. The latter responded in a letter dated 5 February 1996 (qv).
Reasons for the decision
1. As the board has already explained at some length in its communication of 4 January 1996, proceedings under the RDR are so structured that a decision dismissing a complaint is a decision in the legal sense only as regards the professional representative concerned and the Presidents of the epi and EPO, and only they can appeal against it. To avoid undue repetition, see point 2 of that communication, and in particular Article 8(2) RDR, which unlike Article 107 EPC - not applicable here - limits the right of appeal to those persons just mentioned.
2. The reason for this arrangement is that disciplinary regulations are not like civil, criminal or administrative law, because their objective is different. The proceedings they involve are designed to deal with infringement of purely professional rules of conduct, independently of any consequences such infringement may have under civil, criminal or administrative law. Disciplinary powers are exercised by professional bodies, and the right to initiate disciplinary proceedings is not limited to members of the professional fraternity in question but open to anyone (see Article 6(1) RDR).
3. It can be seen from the structure described above that right of appeal is available only to the person against whom the complaint is made, not to the person making it (for an example from the EPC contracting states, see French law, namely Article 119 of the Decree of 9 June 1972). No such right is substantiated by the appellant's reference to point 5(b) of the epi's Code of Professional Conduct, which recommends that any grievance first be taken up privately between the members concerned, and formal disciplinary proceedings instituted only if this fails. Review on appeal is limited to safeguarding the rights of the "accused", ie the "professional representative concerned" within the meaning of the RDR. This is made compellingly clear by the interplay between the RDR and Code of Professional Conduct: the latter serve to interpret the former, but can certainly not amend or broaden it. Whether it would be appropriate - at least in the cases referred to in point 5(b) of the Code - to give both professional representatives concerned the right to appeal against the Disciplinary Committee's decision is a matter to be considered by the appropriate legislative bodies, not the present board.
4. In support of his claimed right of appeal, the appellant also cites Article 125 EPC (referred to in Article 25 RDR) which enables principles generally recognised in the contracting states to be taken into account in the absence of procedural provisions in the EPC. But in the present case, given the above interpretation of the disciplinary provisions governing professional representatives, no such lacuna is discernible. As noted earlier, the structure of the entire disciplinary procedure is such that only the party "concerned" has right of appeal. And the reason this is not contrary to fundamental legal principles - despite what the appellant obviously thinks - is that he is quite free to pursue at national level - eg in the civil or criminal courts - any interests he may have in respect of the "professional representative concerned" other than those of a purely disciplinary nature. So there can be no question of his being "arbitrarily condemned, without ... redress" in having no right of appeal in disciplinary proceedings. Leaving aside the fact that the Disciplinary Committee's decision not to uphold a complaint does not "condemn" the person making it, the relevant national law - Germany's, in this case - offers several possibilities for challenging purportedly unlawful conduct not sanctioned in disciplinary proceedings.
5. It follows from the above that the appeal is not receivable, and must therefore be dismissed.
For these reasons it is decided that:
The appeal is dismissed.