D 0001/18 - Disciplinary case

Key points

• This is a disciplinary appeal case. Two complaints are filed against the professional representative by two companies, the first one in December 2015, the second in November 2016. 
• The decision of the Disciplinary Committee (DC) “issued a warning” on the first complaint and referred the second complaint to the Disciplinary Board (note, this is not the Disciplinary Board of Appeal).
• On the first complaint (warning issued), the appeal is allowed.

No conviction for violating the spirit, aim and purpose of the Disciplinary Regulation or the Code of Conduct

• The DBA: “ First of all, the Board concurs with the appellant that the impugned decision does not specifically identify which Rule of Professional Conduct (Articles 1 to 3 RDR) has been violated.”
  “Contrary to the finding of the decision under appeal, there is no room for issuing a penalty under Article 4(1) RDR [Regulation on discipline for professional representatives] for generally violating the “spirit, aim and purpose” of either the RDR or the CC [Code of Conduct]. ”
• As a comment, I'm glad that professional representatives can not be disciplinarily sanctioned, e.g. removed from the list, for “generally violating the spirit, aim and purpose of either the RDR or the CC”. On the other hand, Article 1(1) RDR first sentence is a rather broad provision which may cover the alleged behaviour.  
• The DBA: “It is noted that mentioning a specific provision of the CC only is not sufficient to comply with Article 17 RPDC (The impugned decision refers to Articles 1(b) and 3(a) CC, but does not state explicitly that these were violated). The CC merely serves to interpret the rather generally formulated Rules of professional conduct in the RDR, and the provisions of the CC can only be invoked together with a specific provision of the Rules of professional conduct in a decision of a disciplinary body established under Article 5 RDR.” [emphasis added]

Right to a reasoned decision stating which specific actions or behaviour are sanctioned

• “Furthermore, it is not clear from the decision which specific actions or behaviour of the representative were conclusively found to violate the Rules of professional conduct. [...] The decision only additionally states that both actions and non-actions of the appellant were found to be inappropriate, as well as his behaviour towards the Chamber as a disciplinary body of the epi. [...] The other reproachable act of the appellant is the “non-responsive behaviour” towards the Chamber. ” Therefore, the Board concludes that “it appears questionable whether an objective reader of the decision, such as other members of the epi, would find clear guidance therein what behaviour they should definitively avoid. In summary, the decision contains a very limited material substance which could form the basis of an appellate review by the Board.”
• As a comment,  a few observations can be made: 
• 1) The conduct of the defendant in the proceedings can be a factor/ground for a sanction, according to the DC. The DBA does not expressly state here whether this reasoning of the DC is correct or not (I'm not an expert of EPO disciplinary rules and I don't know if it is line with established DBA case law or established practice of the DC's. I know the approach is adopted by at least some disciplinary bodies of some other professions in The Netherlands).
• 2)  The DBA appears to acknowledge some principle that DC decision should provide "other members of the epi"  with "clear guidance therein what behaviour they should definitively avoid". 
• 3) In my view, the rule that disciplinary decisions must be reasoned and must state “which specific actions or behaviour of the representative were conclusively found to violate the Rules of professional conduct” does not only serve the interest of "other epi members". Rather, I would say that it is a fundamental principle of criminal proceedings which should apply by analogy to disciplinary proceedings because a conviction for violating unspecified legal provisions due to unspecified acts is highly problematic under the rule of law. 
• The DBA speaks of an “an appellate review by the Board”. However, it is not clear to me if a DBA disciplinary appeal is a review or a re-hearing. See e.g. Barendrecht et al 2006 (link), “In a rehearing, the dispute is handled as if it were a case in first instance. The appeal court evaluates the case with a totally fresh look. In a review, the appeal court only checks the decision of the court of first instance. (...) Roughly, we can classify the English and German civil appeals as procedures of review, as well as the English criminal appeal. The French and Dutch civil and criminal appeal are typical procedures of rehearing, and so is the German criminal appeal.” 
• 
  The decision of DC to refer to the Disciplinary Board is non-appealable
• The appeal is inadmissible to the extent the decision to refer the second complaint is concerned. Contrary to (recent decision) D2/18, the present Disciplinary Board of Appeal considers such decision to refer non-appealable.
• I note that D2/18 was taken 05.04.2019, published 05.06.2019, the present decision was taken 26.09.2019. The panel of the DBA was completely different except for the Chair, which is the BoA President. In my view, the present decision on this point makes much more sense than D2/18. I wish to favourably highlight that the DBA (Chair) appears to have accommodated such a relatively swift development of the case law. 

Note that the DC is made up by epi members elected by the epi Council, which is in turn elected by the epi members. So as a profession we are responsible ourselves for the quality of the DC judgments. Did you vote already? Voting closes on 17 February.

EPO  D 0001/18 - link