The Boards of Appeal of the European Patent Office (EPO) are administratively organized as Directorate General 3 (DG3) within the Office. As a tradition since 1985, the Vice-President responsible for the Boards of Appeal (VP DG3) has always been appointed as Chairman of the Enlarged Board of Appeal of the EPO (EBA). In case R 19/12, the EBA saw a conflict of interests between the tasks as member of the management and as a presiding judge in review cases and allowed an objection to its Chairman on the ground of suspicion of partiality.

In a review case, the petitioner took the double function as Chairman of the EBA and as VP DG3 as the basis for an objection on the ground of suspicion of partiality. The petitioner argued that the object of its petition was a procedural defect in the conduct of appeal proceedings by the Board of Appeal which had issued the decision under review. This defect again had its cause in a procedural defect in the preceding proceedings before the Opposition Division. The petitioner expressly stated that he did not doubt the legal qualification and personal integrity of the Chairman. However, it was submitted that the Chairman as a former member of the upper management in the administration of the EPO (principal director and acting Vice-President DG5 – Legal/International Affairs) had shared the responsibility for organizing the proceedings including the opposition proceedings at issue. In addition, being the present VP DG3, he was still embedded in the administration of the EPO, since he was a member of the Management Committee of the President (MAC) and had, at least in 2012, been Chairman of the General Advisory Committee (GAC) of the Office. According to the principle of separation of powers which applied to the EPO, the administration could not assume the task of legal review of its own decisions.

For the proceedings concerning the partiality objection, the Chairman of the EBA was replaced by his deputy. In this composition, the EBA allowed the objection and replaced the Chairman. At the outset, the EBA observes that the provisions on exclusion and objection are modelled after national codes of procedure which are in some states based on constitutional principles, whereas in other states Article 6 of the European Convention on Human Rights (ECHR) is the superior legal basis which again relies on principles common to all Contracting States of the EPO. Thus, it was appropriate to consider national case law as well as case law of the European Court of Human Rights in the present context.

The EBA states that the change from a position in the administration to a court is – as such – not a sufficient ground for a suspicion of partiality. A judge can be expected to disengage himself from his earlier profession and to exercise his new duties in accordance with his obligations as a judge. However, referring to case law of the European Court of Human Rights and the German Bundesverfassungsgericht, the EBA notes that hierarchical and other links between a judge and other actors in the proceedings as well as the internal organization of the court are relevant when assessing objective impartiality. The provisions on exclusion and objection serve the purpose of maintaining a certain distance between the judge from the object of the proceedings and the parties. In particular, such a distance is required in the relation between a court and the administration rendering the decisions to be reviewed by the court.

According to the EBA, the VP DG3 remains, after his appointment as Chairman of the EBA, part of the hierarchical structure of the EPO and is subject to instructions of the President. Whereas the VP DG3 is not subject to instructions in his role as Chairman of the EBA, there is no precise separation between his different functions. In respect of review cases, the EBA notes that a conflict may arise between the Vice-President’s obligation to follow instructions regarding the efficiency goals to be reached by the Boards of Appeal and his obligation to contribute to the development of the case law making review proceedings an effective tool for protecting the rights of the parties to the proceedings. Such conflict may be quite concrete if the right to be heard is at stake: the stricter the requirements for a successful review are the more are the Boards in a position to streamline proceedings without having to face the possibility to have their decision set aside in later review proceedings.

The EBA adds that this conflict is not a consequence of the provisions of the Convention. The EPC stipulates neither that the VP DG3 is at the same time Chairman of the Enlarged Board of Appeal nor that the VP DG3 is a member of the Management Committee or of other bodies with administrative functions. The membership in these bodies has not been restricted to serve the interests of the Boards of Appeal as a judicial self-governance.

The EBA concludes that, if the present structural weaknesses caused by the integration of the Boards into the Office have to be accepted de lege lata, it is all the more necessary to separate the head of DG3 from the management of the Office in order to avoid the possible impression that the judiciary contributes to realizing the interests and aims of the Office. On this basis, the Board accepts that the Chairman of the EBA might come into a conflict of interests. On a strictly objective basis, the petitioner’s suspicion that the Chairman might be influenced in his tasks as judge by his taking part in basic management decisions is not a mere subjective impression or general suspicion. Rather, a reasonably objective and informed person might have good reason to assume that the Chairman might not be in a position to fulfil his tasks as a judge without any influence from targets given in other bodies, as the MAC or the GAC.

Whereas the decision, taken in a three member composition, affects only a single review case, its effects may be far-reaching. Corresponding requests may be made in other review cases and even in cases in which points of law have been referred to the EBA.

At first glance, it might appear that the problem may be resolved by discharging the VP DG3 from his tasks which are the main reasons for allowing the request, i.e. the membership of the VP DG3 in the two committees MAC and GAC. However, this would be a superficial analysis. The problem is more fundamental.

In the words of Sir Robin Jacob in ex parte Lenzing the members of the Boards of Appeal are “judges in all but name”. This word may express the fact that the Boards fulfil their function as judiciary within the European patent system. Nevertheless, the lack of separation of the Boards of Appeal from the European Patent Office has been the reason for discussion and concern for many years (for references cf. ­Teschemacher, Festschrift 50 Jahre Bundespatentgericht, Cologne 2011, 911). This applies in particular to the VP DG 3 who has been a member of the Management Committee composed by the President, the Vice-Presidents and other members of the upper management. Before his appointment he was a member of the same Committee as acting Vice-President of DG5. Whereas other members of the Boards of Appeal leave their previous functions as examiners or lawyers in the administration of the EPO when they are appointed members of the Boards of Appeal, the same did not apply in a comparable strict way to the present VP DG3.

According to Article 10 (3) EPC, the VP DG3 assists the President; in this role he is subject to the instructions of the President pursuant to Article 10 (2) (f) EPC. However, the role of an assistant is hardly reconcilable with the role of the head of the judiciary which has to provide an independent review of the decisions of the Office headed by the President. It is difficult to imagine how this assistance could in practice be restricted to matters only concerning the Boards of Appeal.

In principle, members of the Boards of Appeal are treated as any other employees of the EPO. This does not always properly take into account the special role of the Boards of Appeal. An extreme example of this “equal treatment” is addressed in the decision, Reasons pt. 15, dealing with the Investigation Guidelines issued by the President of the EPO, after having passed the GAC, and claiming the right that an investigation unit which is part of the administration may take evidence regarding alleged violations of the Service Regulations, even without informing the employee concerned, as the case may be. The taking of evidence may include searching the employee’s written documents and electronic devices. Transferred to a national level and as far as members of the Boards of Appeal are concerned, this could be compared to the power of a government to search the offices in a court at which a lawsuit against the State is pending. The Service Regulations provide for a Disciplinary Committee appointed by the Administrative Council for disciplinary proceedings against members of the Boards of Appeal in order to safeguard their independence from the Office. Safeguarding such independence appears not to be a matter of concern for the EPO when investigations possibly resulting in disciplinary proceedings are at stake.

The EBA refers to the Draft Basic Proposal for a Revision of the EPC implementing the organisational independence of the Boards of Appeal within the European Patent Organisation which the Administrative Council discussed in 2004 and considered to be an appropriate basis for a Diplomatic Conference. This draft aimed at separating the Boards of Appeal from the EPO but has not resulted in any further follow-up action, neither from the Administrative Council nor from the Office. It proposes to take the powers and functions concerning the members of the Boards of Appeal away from the President of the EPO and to transfer them to the President or to the Presidium of the Court. This would exclude any measures against Board members initiated by the Office. Furthermore, the draft provides for an amendment of Article 11 (3) EPC, abolishing the influence of the President of the EPO on appointment and re-appointment of the members of the Boards of Appeal.

The remark that the present structural weaknesses caused by the integration of the Boards into the Office have to be accepted de lege latamay be an argument for the EBA, it is hardly a valid argument in proceedings outside the EPO. The structural problems addressed may and presumably will also be raised in pending national proceedings against final decisions of the EPO as cited in R 19/12. The fact that there are such structural weaknesses does definitely not mean that there has been in fact an inadmissible influence from the administration on decisions to be taken by the Boards. However, the need to create structures fully complying with the principle of separation of powers is not a reaction to misuse in the past. Rather, it is to be considered as a precaution in order to prevent a possible misuse under yet unknown circumstances in the future, even if it appears that such misuse is not probable.

Finally, it has to be noted that the alleged lack of a judicial review of decisions of the EPO has been the first plea in the action of Spain against the Regulation on the unitary patent (C-146/13). The unitary patent will be a EU title and it is difficult to imagine that it can be revoked in opposition proceedings which are not subject to an appeal to be decided by a body the qualification of which as an independent tribunal within the meaning of Article 47 of the EU Charter of Fundamental Rights is beyond any doubt, a question which has already been touched by the attorney general in the proceedings resulting in Opinion 1/09 of the ECJ holding that the Draft Agreement on the European and Community Patents Court, the predecessor of the Agreement on a Unified Patent Court, was incompatible with the institutional and judicial framework of the EU.

Blogs have reported that, following decision R 19/12, the VP GD3 has given up his membership in the GAC and will no longer participate in MAC meetings as a member. This can only be a provisional measure since the administrative function as a Vice-President who is subject to the directions of the President is not affected by this measure. Furthermore, a decision of the President is reported suspending financial authorizations granted to the VP GD3 relating to activities of members of the Boards of Appeal. This means, that the President decides on missions, training, study visits and external activities of Board members. Whereas this measure has relieved the Chairman of the EBA of an administrative function, it has also increased the influence of the President on the members of the Boards.