Under Art. 116(2) EPC oral proceedings must take place before the Receiving Section at the request of the applicant only where the Receiving Section considers this to be expedient or where it envisages refusing the European patent application. A board can refuse a request for oral proceedings made by an applicant in the course of an appeal against a decision of the Receiving Section for the same reasons, Art. 116(2) EPC 1973, Art. 111(1) EPC 1973 (J 20/87, OJ 1989, 67). Although according to Art. 116(2) EPC the Receiving Section is entitled not to grant a request for oral proceedings, the applicant has the right to a decision on that request (J 16/02).
The decision confirming a loss of a right (R. 69(2) EPC 1973, R. 112(2) EPC) is not a case in which the Receiving Section "envisages refusing the European patent application" within the meaning of Art. 116(2) EPC 1973, (J xx/xx=J 900/85, OJ 1985, 159). This was confirmed by J 17/03 where the Legal Board also decided that a decision refusing a request for re-establishment of rights was not to be equated with the refusal of an application. The Receiving Section had thus discretion in dealing with the appellant’s request for oral proceedings; this discretion was not without limits and had to be exercised in light of recognised procedural principles such as the right to be heard set out in Art. 113(1) EPC.