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Case Law of the Boards of Appeal

9.2.2 Presumption of personal impartiality of board members

In decision T 281/03 of 30 March 2006 the board observed that in an earlier decision on suspected partiality in relation to the same case (T 281/03 of 18 March 2005), the modified board had explained that, when assessing partiality, there were two elements which needed to be examined. One was the subjective element as an internal characteristic of the member himself, for example due to a personal interest or dislike of a party. Personal impartiality was to be presumed until there was proof to the contrary. On the other hand, the appearance of partiality involved external aspects and reflected, regardless of whether the member was actually biased or not, the confidence which the board inspired in the public. Since this aspect of partiality related to appearance it did not need to be proven in the same way as actual partiality, but the circumstances had to be judged to see whether they gave rise to an objectively justified fear of partiality (objective element). Applying the objective reasons for partiality the case at issue, the board stated that even if an application of procedural or substantive law was to be found incorrect, this would be far from proving that the deciding body was willingly violating a party's right. Even less could a party's own attacks on a previous, allegedly flawed, decision of a board of appeal be a basis for alleging partiality of the members of the board in future cases. If this were so, this would give parties an unrestricted possibility of excluding board members from their cases for reasons unrelated to partiality. The board pointed out that if the suspicion of partiality was only based on the fact that procedural measures had been taken affecting a party, such a suspicion was not sufficient to justify an objection of partiality. This applied even where the party interpreted those measures as an expression of a prejudice against it (objective element).

The board then had to examine whether there were subjective reasons for partiality, i.e. a personal interest or an actual dislike of a party. The board noted that it was a fundamental duty of a member of a board of appeal acting in a judicial capacity to take decisions objectively and not to be swayed by personal interest or other people's comments or actions (cf. T 281/03 of 18 March 2005). This principle was explicitly contained in the solemn declaration delivered by members of the boards of appeal at the time of their inauguration. Thus, personal impartiality of a member of a board of appeal was to be presumed until there was any proof to the contrary. In the present case, no proof of personal partiality had been submitted.