In May 2014, the decision of the Enlarged Board of Appeal (EBA) in case R 19/12 allowing in a review case an objection to the Chairman of the EBA based on suspicion of partiality was widely reported.
The EBA held that, considering the integration of the Chairman as Vice-president DG 3 into the administration of the Office at the management level, the suspicion of the petitioner that the replaced Chairman might possibly not be able to entirely detach his jurisdictional activities from the constraints and influences due to his participation in management decisions of the Office could not be considered to be a merely subjective impression or a merely general suspicion. Rather, a reasonable, objective and informed person might have good reason to fear that the Chairman might possibly not exercise his judicial functions without being influenced by requirements which are referred to him being the Vice-president DG 3.
Also in review case R 2/14, the petitioner objected to the Chairman of the EBA, referring to the decision given in case R 19/12. Moreover, an objection to the technical member and the legally qualified member was raised, inter aliasubmitting that the concurrent assignment of both members to the Technical Boards of Appeal and to the EBA implied a fundamental and systematic deficiency in the judicial system of the EPO. Citing decision R 12/09 (Reasons, pt. 6), the EBA states that the dual capacity of members of the EBA as members or chairmen of the Technical Boards of Appeal or the Legal Board of Appeal complies with the legislator’s intention when enacting Article 112a EPC. Thus, these members’ dual function should not, in itself, constitute a reason for objection under Article 24 EPC.
As to the objection to the Chairman, the EBA does not see any reason to re-examine the factual findings and legal conclusions of the EBA in R 19/12 or to add anything to them. The EBA notes that the Chairman, in his comments on the objection, has assured the Board that, following decision R 19/12, all his managerial activities have been discontinued, in particular his membership in the President’s Management Committee (MAC) and the EPO’s General Advisory Committee (GAC), with the exception of his participation as an observer in the MAC for points of discussion having a direct bearing on the Boards of Appeal and their support services. As a consequence, the EBA finds that the present factual circumstances clearly differ from those on which decision R 19/12 was based.
The EBA concedes that the Chairman’s dual functions laid down in Article 10 (2) f) and (3) EPC for his managerial function and Article 23 (3) EPC with regard to his judicial function could in principle come into conflict with one other, both provisions being of equal ranking. The EBA denominates this as a “normative conflict” and takes recourse to German constitutional law to solve this conflict. The decision cites the principle of “praktische Konkordanz” (“practical” or “normative concordance”) being applied in order to establish a balance between two conflicting fundamental rights provisions. In applying this principle, the EBA concludes that the President’s power to give instructions to the Chairman in his function as Vice-president is limited by virtue of Article 23 (3) EPC with the consequence that the Chairman is relieved of any obligation to obey any instructions, or to observe any directions, or to assist the president if and to the extent that this might affect him or any other member of the Boards of Appeal, directly or indirectly in performing their judicial duties.
The EBA concedes that the principle of “praktische Konkordanz” has been developed in connection with rules governing fundamental rights. Whereas the EPC may be considered as the constitution of the EPO, the status of the Vice-president is certainly not a fundamental right. However, the independence of the Board of Appeals is the necessary pre-requirement of the fundamental right of the parties to the proceedings of having access to a proper court. Perhaps a more obvious parallel to German constitutional law would have been to cite the decision of the German Supreme Administrative Court of 1959 which gave rise to the creation of the Federal Patent Court stating “the German Constitutional Court has developed the principle that the courts have to be specific institutions, separated from the executive, because only in this way a jurisdiction can be realised which can act vis-à-vis the state like an uninvolved third party” (GRUR 1959, 435, at p. 437).
The EBA held oral proceedings in November 2014. Events in December 2014, in particular the temporary removal of a member of the Boards of Appeal from office, prompted the petitioner to make further submissions basing the alleged suspicion of partiality on new facts and arguments. Whereas the EBA accepts that these submissions could not have been made earlier, the Board, relying on its discretion, refuses to consider the new submissions in the pending proceedings, on the grounds that they amount to a fresh case. This raises the question how this exercise of discretion can be reconciled with the petitioner’s right that no judge should decide its case in respect of whom it may have good reason to assume partiality (G 1/05, OJ EPO 2007, 362, Reasons, pt. 5). The latter right is an expression of the more general fundamental right of the parties to a fair trial as enshrined in Article 6 of the European Convention on Human Rights to have the case decided on the basis of a fair trial. Safeguarding this right may require that the EBA has to take its decision on the basis of all relevant facts known to it at the date on which the decision is taken as stated in R 19/12 (Reasons, pt. 5).