In G 1/05 (OJ 2007, 362) the Enlarged Board of Appeal held that to the extent that the participation in a referral pending before the Enlarged Board of Appeal of a board member having already dealt with the matter as a member of a board of appeal was not excluded by the relevant provisions, an objection of partiality could not be based on that very fact alone (cf. also G 2/08, dated 15 June 2009). On the contrary, also as regards proceedings before the Enlarged Board of Appeal and unless there were specific circumstances casting doubt on the board member's ability to approach the parties' submissions with an open mind on a later occasion, there could not be any objectively justified, i.e. reasonable, suspicion of partiality against a member of the Enlarged Board of Appeal within the meaning of Art. 24(3), first sentence, EPC 1973 for the reason that a position on the matter had been adopted in a prior decision of a board of appeal in which the board member concerned had participated. Moreover, on a practical level, if all members of the Enlarged Board of Appeal having once taken part in a decision of a board of appeal expressing a view on a point of law which was then referred to the Enlarged Board were to be excluded from taking part in that referral, the Enlarged Board's functioning would be severely affected. It could become impossible to allocate the number of Enlarged Board members needed to conduct the case. This was particularly true for referrals, like the one under consideration, concerning frequently occurring issues with which all Technical Boards of Appeal have to deal in a considerable number of cases.
The Enlarged Board of Appeal explained that it was the essence of the function of the boards of appeal to take a position in relation to the matters to be decided in the case under consideration. It noted that the situation could be viewed differently if there were deficiencies in the view expressed to such an extent that there was reason to believe that they were the result of a preconceived attitude. It would also have been different if a board member had pronounced on a matter to be decided with his or her participation in such outspoken, extreme or unbalanced terms, be it in the course of or outside the proceedings, that his or her ability to consider the arguments put forward by the parties with an open mind and without a preconceived attitude and to bring an objective judgment to bear on the issues before him or her, could be doubted. It noted that R. 28.2(d) of the Rules of Court of the ECHR provided that a judge could not take part in the consideration of any case if he or she had expressed opinions publicly, through the communications media, in writing, through his or her public actions or otherwise, that were objectively capable of adversely affecting his or her impartiality.
In the Enlarged Board of Appeal's interlocutory decision in G 3/08 dated 16 October 2009, it was noted that, according to established case law of the boards of appeal, of the Enlarged Board of Appeal and also of national courts of member states, the mere fact that a board member had expressed a view on the legal issue to be decided on a previous occasion, be it in a prior decision or in literature, be it in a prior position in the EPO or as an expert for external political institutions, could not lead to the conclusion of doubts as to impartiality. Nor did a purely subjective impression that the opinions of a board member might be disadvantageous to a particular interest justify exclusion. Once lawfully appointed, a judge was deemed to act in good faith and therefore presumed impartial until proven otherwise (see interlocutory decision in G 2/08). Moreover the parties to judicial proceedings had a right to have their case considered and decided by lawfully appointed judges. Such judges not only had the right to be board members but also had the duty to decide in the cases allocated to them.