4. Notices of self-recusation under Article 24(2) EPC

Art. 24(2) EPC provides that if, for one of the reasons mentioned in paragraph 1, or for any other reason, a member of a board of appeal or of the Enlarged Board of Appeal considers that he should not take part in any appeal, he shall inform the board accordingly.

In interlocutory decision G 1/05 dated 7 December 2006 (OJ 2007, 362), Ms X, a member of the Enlarged Board of Appeal, informed the board that she ought not to be taking part in the referral, since one of the opponents in the underlying case was represented by the law firm in which her husband and her son were partners. The Enlarged Board noted that Art. 24(2) EPC 1973 served to safeguard the general principle of law that nobody should decide a case in respect of which a party might have good reasons to assume partiality, by obliging a board member to inform the board accordingly if he or she considered that he or she should not take part in a case for any such reason. This would prevent the circumstances underlying a notice of withdrawal from arising later in the proceedings and casting a shadow on the decision-making process or even the decision taken. Therefore, it held that if a member of a board of appeal in a notice of withdrawal under Art. 24(2) EPC 1973 gave a ground which could by its nature constitute a possible ground for an objection of partiality, that ground should normally be respected by the decision on replacement of the board member concerned because it could be expected that the member submitting the notice knew best whether or not a possible suspicion of partiality might arise.

In J 15/04, the board noted that, under the EPC, board members' notices of self­recusation do not automatically effect their final exclusion from the proceedings. A notice of self-recusation only initiated the procedure under Art. 24(4) EPC 1973 but did not pre-empt the outcome of the decision to be taken. If one accepted that a notice of self-recusation would immediately and automatically exclude the member concerned, then the party's formal right to a hearing before a duly appointed member of the board as established by the EPC would be violated. Such a self-recusation required that the member in question realise that the circumstances might put him in a situation in which a party might suspect him of partiality, not because of the situation of a fellow member, but because of his own relations to a party or to the subject-matter to be examined.

The board stated that the grounds of possible partiality given by a board member in a notice of self-recusation should normally be respected by the decision, irrespective of whether or not exclusion was justified. It could be expected that the member submitting a notice of self-recusation based on specific facts knew best whether or not a possible suspicion of partiality might arise. It was important that there should be no real remaining possibility of the public or a party suspecting bias after a decision of a board of appeal finding no grounds of suspicion of partiality (see also T 584/09).

In T 584/09 of 1.03.2013 the board came to the conclusion that, considering the requirement of impartiality in proceedings before the boards of appeal that underlies Art. 24 EPC, it was justified to replace the originally competent members of the board because of their declaration of self-recusation.

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