The path to UPC and the epi Code of Conduct Report from the Professional Conduct Committee (PCC)
Giorgio Checcacci (IT) Chair
It is now about two years since the issue of the conduct provisions in respect of UPC was addressed in epi Information: in issue 3/2016, I presented the so called UPC Code of Conduct (https://www.unified-patent-court.org/sites/default/files/code_of_conduct_2016.06.pdf) that at that time had just been finalized and at the same time I announced that our epi conduct provisions (i.e the Regulation on Discipline or RoD, https://patentepi.com/assets/uploads/documents/institute/Regulation on discipline for professional representatives (2).pdf, and the Code of Conduct or CoC, https://patentepi.com/assets/uploads/documents/institute/Code of Conduct of the Institute of Professional Representatives .._.pdf) were also under revision, to clearly define their application to UPC-related activities. This revision process has been guided by PCC (Professional Conduct Committee), that received suggestions, comments and support by other epi bodies, such as the Disciplinary Committee, the By-Laws Committee, the Litigation Committee, the Board and the Council.
Well, this revision process has been probably more difficult and slower than expected, albeit after all not slower than the ratification process of UPC itself. However, a key step was recently marked at the last 85° epi Council meeting in Helsinki on 10 November: the Council approved the text of the proposal to amend the RoD and the text of an amended CoC. This means that eventually epi agreed on what amendments are needed to be UPC-ready in terms of conduct provisions; above all, epi agreed on the basic principle that epi members must continue to apply the same conduct provisions both when they act in respect of the EPO and when they act in respect of the UPC.
However, the vote of the Council is not the conclusion of the revision process: the amendments to the RoD will have to be brought before the Administrative Council of the EPOrg for adoption and only after that adoption epi Council will have the possibility to eventually adopt the revised CoC. Said like this, it might appear a straightforward process, however it is not, as obviously the Administrative Council might disagree on what we are proposing. epi will thus follow this process very carefully (through Professional Conduct Committee), in order to have full support from the EPO before going to the Administrative Council. All of this will certainly require at least a few months.
A question might then come up quite naturally: is all this effort useful? Yes, it is, for at least two main reasons.
The first reason is a quite obvious matter of fairness.
It seems simply unacceptable that our conduct is ruled by different principles whether we act before the UPC or before the EPO. Let me give just a couple of examples to show the issue.
A very serious misbehaviour during EPO-related activities could lead to sanctions up to deletion from the list of professional representatives (art. 4.1 RoD). UPC CoC does not provide for sanctions like this. The proposed amended epi RoD and CoC will allow to apply the same sanctions irrespective of whether the misbehaviour has happened during either UPC-related or EPO-related activities.
Conflict situations are regulated (art. 3.2 RoD) for EPO-related activities, while UPC CoC does not consider conflicts. The proposed amended epi RoD and CoC will allow to rule conflicts in the same way.
The second reason is more political and relates to the reputation and prestige of our profession in general.
If we have our epi conduct provisions with the amended text just approved by the Council, epi representatives before the UPC will be the only category of UPC representatives having single, Europe-wide conduct provisions. This is something that lawyers cannot offer and is an ideal complement to the equal dignity principle defined in art. 48(2) UPC.
Achieving these two goals is certainly worth some efforts.