A guide to the UPC and the UP - Flipbook - Page 482
23-34 Orders for production of evidence 51 and orders to communicate information, 52 refer specifically
to r.179(3) RoP which states that a person is not obliged to sign a witness statement if they are
related to a party in the proceedings, and also allows them to refuse to answer questions if
doing so would violate a professional privilege or other duty of confidentiality imposed by the
national law applicable to the witness or expose them or their relations to criminal prosecution.
It is not clear exactly how this provision applies to orders to produce evidence. A purposive
reading would suggest that a party may refuse to produce any evidence if that evidence would
open them or their relations to criminal prosecution under applicable national law. Otherwise,
the privilege provided under r.179(3) RoP would appear to be of little use in the context of an
order to produce documents under r.190 RoP, although it could potentially be applied to an
order to communicate information under r.191 RoP.
Code of Conduct and Disciplinary System
Introduction
23-35 All representatives are subject to existing codes of conduct. For EPAs this is the Code of
Conduct of the Institute of Professional Representatives before the European Patent
Office 53 (epi) and system of disciplinary sanctions. 54 For lawyers, these are the codes of
conducts of their national professional associations as well as the Code of Conduct for
Lawyers in the European Union of the Council of Bars and Law Societies of Europe 55 (CCBE).
However, these codes of conduct may contain inconsistent provisions, meaning that there
will not be a level playing field among representatives from various Member States.
23-36 In order to solve this problem, the European Patent Lawyers Association (EPLAW), the European
Patent Litigators Association (EPLIT) and the epi jointly developed with the Preparatory
Committee a Code of Conduct for Representatives (the “Code of Conduct”). The Code of
Conduct was formally issued by the Presidium on 8 February 2023. All representatives who
appear before the Court must comply strictly with it with respect to all activities related to
proceedings before the Court. 56 The Code of Conduct acknowledges that representatives may,
at the same time, be subject to other professional and commercial codes and laws, including
disciplinary measures. Further, if there is a conflict between the Code of Conduct and the RoP,
the later will prevail. 57
23-37 The Code of Conduct deals with the relationship with the Court, fair conduct of proceedings,
contact with judges, demeanour in Court, confidentiality, dealings with witnesses and party
experts and change of representation.
51
52
53
54
55
56
57
r.190 RoP.
r.191 RoP.
Available at https://patentepi.org/assets/uploads/documents/rules-regulations/4.2.1-221022.pdf [Accessed 14 April 2023].
See https://patentepi.org/en/the-institute/rules-and-regulations.html [Accessed 14 April 2023].
Available at http://www.ccbe.eu/NTCdocument/EN_CCBE_CoCpdf1_1382973057.pdf [Accessed 14 April 2023].
r.290(2) RoP and r.1 Code of Conduct.
r.1 Code of Conduct.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 472
