In T 276/99 the board noted that under the EC Treaty referrals to the Court of Justice of the European Communities were governed by Art. 234 (jurisdiction of the Court of Justice to give preliminary rulings). The board pointed out that, prima facie, as the EPO boards of appeal were not a court or tribunal of an EU Member State, they did not have the status to refer a question to the Court of Justice of the European Union. Further, the question that this board had to decide did not fall under Art. 234 EC Treaty.
The board noted that the appellant seemed to have misunderstood the comments of the German Constitutional Court ("Bundesverfassungsgericht", BverfG, decision of 4.4.2001, 2 BvR 2368/99, published in GRUR 2001, 728 - 730). The board pointed out that the delegation referred to there was the delegation of powers to the EPO directly by the EPC contracting states who were also members of the EU, and not any delegation from the EU itself. There was also delegation of powers by the non-EU contracting states. Since the European Patent Organisation was not part of the European Union institutions, and since the delegation of powers by the non-EU contracting states was to the EPO but not to the European Union or its institutions, there was no obvious basis for referring a question to the Court of Justice of the European Communities from an EPO board of appeal.
In G 2/06 (OJ 2009, 306) the appellant had sought a referral of questions to the ECJ on the argument that since R. 28(c) EPC repeats the wording of Art. 6(2)(c) of the Directive, the Enlarged Board of Appeal in interpreting R. 28(c) EPC was interpreting European Union law and should refer the question of interpretation to the ECJ. The request for a preliminary ruling by the European Court of Justice on the questions suggested was rejected as inadmissible.
The Enlarged Board made it clear that neither the EPC nor the Implementing Regulations thereto make any provision for a referral by any instance of the EPO of questions of law to the ECJ. The boards of appeal are a creation of the EPC, and their powers are limited to those given in the EPC. Nor does Art. 234 of the EC Treaty giving the ECJ jurisdiction to give preliminary rulings concerning inter alia the validity and interpretation of acts of the institutions of the European Community, such as the Directive, appear to provide any basis for a board of appeal of the EPO to request the ECJ to give a ruling on any questions before such board of appeal. Art. 234 of the EC Treaty requires the question to be raised in a case pending before a court or tribunal of an EU member state. Whereas EPO boards of appeal have been recognized as being courts or tribunals, they are not courts or tribunals of an EU member state but of an international organization whose contracting states are not all members of the EU.
The Enlarged Board was not aware of any precedent for asking the ECJ for a consultative opinion. That the seat of the EPO boards of appeal is in a member state of the EU, Germany, could not alter their status as part of an international organisation with jurisdiction conferred under the EPC. The EPO boards of appeal are not and have never been treated as courts or tribunals of their host country. The Enlarged Board concluded that it had no power to ask the ECJ for a preliminary ruling under the existing provisions of the EPC, so that the request for referral of the questions for a preliminary ruling by the European Court of Justice had to be refused as inadmissible.