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In T 390/86 (OJ 1989, 30) the board stated that when a substantive decision is given orally during oral proceedings it must be formally notified to the parties in writing (R. 68(1) EPC 1973, now R. 111(1) EPC) and formally completed by giving reasons for the decision in writing (R. 68(2) EPC 1973, now R. 111(2) EPC). In the board's judgment, it was clear from R. 68 EPC 1973 and Art. 108 EPC 1973 that until a substantive oral decision was formally completed in writing and notified to the parties, the two-month period within which a notice of appeal had to be filed did not begin.
In J 8/81 (OJ 1982, 10) the board stated that in accordance with the normal practice of the EPO, the contents of the communication ought to have been identified as a decision, so as to preserve the clear distinction made in the EPC 1973 and Implementing Regulations between decisions and communications (see e.g. R. 68 and 70 EPC 1973, now R. 111 and 113 EPC). The letter ought also to have drawn attention to the possibility of appeal and the provisions of Art. 106 to Art. 108 EPC 1973, in conformity with R. 68(2) EPC 1973. The fact that the requirements of R. 68(2) EPC 1973 were not fully complied with did not, however, mean that the letter was merely a communication. Whether a document issued by the EPO constituted a decision or a communication depended on the substance of its contents, not on its form (J 43/92, T 222/85, OJ 1988, 128, T 713/02).
In T 165/07 the board stated that, according to the established case law of the boards of appeal, whether a document constitutes a decision or not depends on the substance of its content and not on its form (see e.g. J 8/81, OJ 1982, 10). The criterion of substance has to be assessed in its procedural context (see T 713/02, OJ 2006, 267). The decisive question was whether the document at issue, when objectively interpreted in its context, could have been understood by its addressees as a final, i.e. not merely preliminary, and binding determination of substantive or procedural issues by the competent organ of the EPO.
In T 42/84 (OJ 1988, 251) the board held that the alleged failure of the EPO to enclose the text of Art. 106 EPC 1973 to Art. 108 EPC 1973 with the decision neither invalidated the decision nor did it constitute a substantive procedural violation. R. 68 EPC 1973 (now R. 111 EPC) stated that the written communication of the possibility of appeal had to draw the attention of the parties to the provisions laid down in Art. 106 to Art. 108 EPC 1973, the text of which should be attached. However, it also stated that the parties could not invoke the omission of that communication. This had, in the board's view, to be read as applying also to the omission of the text of the articles alone.
In T 222/85 (OJ 1988, 128) the board noted that the contents of a "communication" never constituted a "decision". This distinction was important, because only a "decision" could be the subject of an appeal ‑ see Art. 106(1) EPC 1973. In the case at issue the communication only represented a preliminary view, on an ex parte basis, and was not binding upon the department of the EPO which sent it. In contrast, the contents of a "decision" were always final and binding in relation to the department of the EPO which issued it, and could only be challenged by way of appeal.
In J 20/99 the board noted in its decision that all EPO departments should, if quoting a decision of the boards of appeal or any other legal authority, identify that authority and place the cited passage(s) in quotation marks. It found that the examining division had raised in its communication some objections having in mind the reasons of a decision of a board of appeal that were repeated verbatim without any quotation marks or attribution. The board had observed that the situation then was completely different from that which the examining division had in mind.
In T 830/03, after a written reasoned decision was notified to the parties, the formalities officer informed the parties that the written decision "was only a draft". A second written decision intended to supersede the first written decision had been issued by the EPO.
The board noted that the need for legal certainty required a presumption of validity in favour of a written decision which was notified to the parties by an opposition division in accordance with the formal requirements of the EPC 1973, in particular R. 68 to R. 70 EPC 1973 (now R. 111 to 113 EPC). Once the decision was pronounced and the (first) written decision, in the case at issue, notified to the parties, the opposition division was bound by it even if it considered its decision not to "have any legal effect" (see T 371/92, OJ 1995, 324). The decision could be set aside only by the second instance on the condition that an allowable appeal was filed under Art. 106 EPC 1973. With the filing of the first notice of appeal, the power to deal with the issues involved in this case passed from the department of first instance to the appeal instance (devolutive effect of the appeal).
Therefore, in the judgment of the board, the written decision, which was notified to the parties by the opposition division in accordance with the formal requirements of the EPC 1973, in particular R. 68 to R. 70 EPC 1973 (now R. 111 to 113 EPC), constituted the only legally valid written decision. All actions carried out by the opposition division after the notification of the decision, and a fortiori after the filing of the first appeal, were ultra vires and thus had no legal effect.