8.4. Rehearing of a case by the same division after remittal

In T 433/93 (OJ 1997, 509), following a substantial procedural violation in connection with a decision issued by a department of first instance, the decision was set aside at the request of a party, and the case remitted to the department of first instance for re-hearing. The board found that the remitted case had to be examined and decided by a different composition of opposition division (that is, by a composition of three new members) in the light of the grounds of opposition raised and introduced into the proceedings. The board considered that if the case were re-heard and re-decided by the same composition of opposition division, the members would first have to attempt to put out of their minds the result of their previous decision on the case.

The board noted that the important point was not whether the file record showed any previous evidence of actual partiality by the members of the opposition division during the previous conduct of the case (see T 261/88 of 16.2.1993), or whether the present members of the opposition division would in fact be unprejudiced or impartial if they re­heard the case, but whether a party would have reasonable ground to suspect that they would not receive a fair hearing if the case was re-heard before the same composition of opposition division (whether because of possible prejudice as to how the case should be decided, or because of possible partiality, or otherwise).

In T 611/01 the board found that a substantial procedural violation had occurred and decided that only a remittal could ensure the case was given the procedurally correct treatment which had previously been denied. The board considered that the new examination proceedings should be conducted by a differently composed examining division, that is, by a division of three new members. Such a direction was typically made when there was a question of possible bias against a party and the board emphasised that that was not the case here. However, a differently composed first instance could also be appropriate when a party had reasonable grounds for feeling it might not otherwise have a fair re-hearing, as had occurred in T 433/93 (OJ 1997, 509) or where, as in T 628/95 of 13.5.1996, remittal to a differently composed first instance was ordered ipso facto on the board's concluding that the decision at first instance was null and void.

The board noted that the appellant had requested a different composition but, even in the absence of such a request, it would have so directed because, after grave procedural irregularities, it was important to ensure, so far as possible, that there should not be any ground for dissatisfaction with the conduct of the further proceedings, such as might well be the case if the same examining division were again to refuse the application even after impeccably conducted proceedings. In the circumstances, and bearing in mind that someone who was not a member of the particular examining division could have been responsible for, or at least involved in the procedural violation, such a direction was also fairer for the members of the examining division who took the decision under appeal.

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