Art. 24 EPC provides for two procedural alternatives. First, under paragraph 2, the member concerned may inform the board of a reason for exclusion. Secondly, under paragraph 3, a party may object in any of the situations referred to if it has reason to do so. Hence, the right to object to a member of a board of appeal or of the Enlarged Board of Appeal is reserved to the party to the proceedings who suspects partiality in such a member.
In interlocutory decision G 2/08 of 15 June 2009, the Enlarged Board of Appeal noted that, according to the EPC, objections of suspicion of partiality were the monopoly of parties to the proceedings. It nevertheless remained that, pursuant to Art. 4(1) RPEBA, in the version approved by the Administrative Council of the EPO on 7 December 2006, if the Enlarged Board of Appeal had knowledge of a possible reason for exclusion or objection which did not originate from a member himself or from any party to the proceedings, then the procedure of Art. 24(4) EPC was to be applied (emphasis added). In the Enlarged Board's view, when construing the meaning (and the ambit) of the wording "possible reason for exclusion or objection", one had to bear in mind the distinction set out above: i.e. summa divisio (a) grounds that may be raised ex officio according to Art. 24(1) EPC and (b) an objection of partiality, reserved to the parties. Both could lead to the exclusion of the member objected to.
The Enlarged Board held that a request originating from a person not enjoying the status of a party to the proceedings (third person) could not confer on this person the same rights as those of a party entitled to act in the proceedings. It noted, however, that a third person could worsen the procedural status of the party to the proceedings by attempting to deprive the latter of its judge established by law. It might therefore appear appropriate not to proceed any further with a complaint or information received if the so-called "possible" reason for exclusion or objection which did not originate from a party to the proceedings or the Enlarged Board of Appeal itself, would amount to an abuse of procedure. That would be the case where "summum jus summa injuria" a complaint was not substantiated at all, ignored established case law, or had been filed maliciously in order to damage a member's reputation or with the purpose of delaying the proceedings, this list not being exhaustive.
In the case at issue, the Enlarged Board of Appeal concluded that the complaint did not "prima facie" constitute an abuse of procedure purporting to delay the proceedings or to damage the reputation of the member concerned, but rather constituted a "possible reason for objection" as required by Art. 4(1) RPEBA. Therefore, the Enlarged Board of Appeal decided to proceed further with the procedure under Art. 24(4) EPC as prescribed by Art. 4(1) RPEBA in fine.