D 0011/91 (Disciplinary penalty) du 14.09.1994

1. The European Convention for the Protection of Human Rights contains provisions which express general principles of law common to the member states of the European Patent Organisation. As such these provisions should be regarded as forming part of the legal system of this Organisation and should be observed by all its departments. This therefore applies to Article 13, which guarantees each individual's right to be heard by a duly constituted tribunal. The "national authority" mentioned in this article is clearly meant to be understood as a competent authority in accordance with the law of the state concerned. However, in ratifying the Munich Convention, the contracting states accepted a transfer of prerogatives whereby professional representatives before the European Patent Office became subject to the same set of professional regulations, controlled by a central body whose decisions are open to effective remedy before a body of second instance whose independence is guaranteed by the rules governing its composition. The drafting of these regulations and the establishment of these bodies was thus consistent with the general principles of law, in particular those expressed in the European Convention for the Protection of Human Rights.

2. In order to ensure that the penalty is proportionate to the seriousness of the charges and that the maxim according to which penalties should not be arbitrary but fixed or predetermined is respected, Article 4(1)(e) of the Regulation on discipline for professional representatives, OJ EPO 1978, 91 (RDR) should be understood as meaning "for a period not defined by the text", that is for a discretionary period to be decided by the competent disciplinary body, which, in its decision, should fix the said period and give reasons for its choice.