As for the application of Art. 108 EPC 1973
in conjunction with Art. 122 EPC 1973
, the principle of proportionality has the consequence that the interpretation of those provisions must not impose means that are inappropriate, unnecessary or disproportionate in relation to the aim to be achieved, namely legal certainty and the proper administration of justice by avoiding any discrimination or arbitrary treatment. Correspondingly, the conditions for granting re-establishment
, in particular the requirement of due care, must not be interpreted in an excessive manner
that unreasonably restricts access to the board and thus prevents the board from deciding on the merits of the case. This is the balance between legal certainty and proper administration of justice on one hand and substantive justice on the other, which has been struck under the EPC in this context. It follows that the principle of proportionality must always be applied in connection with the interpretation of those conditions, which determine whether or not an application for re-establishment can be allowed. The number of days by which a time limit has been missed is irrelevant for deciding whether all due care within the meaning of Article 122(1) EPC 1973
was applied or not as that provision does not leave any room for the application of the principle of proportionality in this respect.