2. Power to amend the RPBA under Article 23(4) EPC

The Rules of Procedure of the Boards of Appeal and the Enlarged Board of Appeal shall be adopted in accordance with the Implementing Regulations. They shall be subject to the approval of the Administrative Council (Art. 23(4) EPC), see also OJ 2007, 536 and OJ 2007, 303.

In 1994 the Administrative Council amended R. 71 EPC 1973 by adding further provisions to R. 71a EPC 1973, inter alia to the effect that a communication must be issued by the EPO at the same time as a summons to oral proceedings is issued (OJ 1995, 409). In contrast to this requirement of R. 71a(1) EPC 1973, Art. 11(2) RPBA 1980 leaves it to the discretion of the boards of appeal whether or not to send a communication with such a summons. In G 6/95 (OJ 1996, 649) the Enlarged Board held that R. 71a(1) EPC 1973 did not apply to the boards of appeal. This interpretation of R. 71a(1) EPC 1973 with regard to the boards was based on the consideration that Art. 23(4) and 33(1)(b) EPC 1973 provided two distinct and separate sources of legislative competence or power.

The Enlarged Board pointed out that Art. 23(4) EPC 1973 states that the RPBA "shall be adopted in accordance with the provisions of the Implementing Regulations". In the view of the Enlarged Board this was clearly directed to the mechanism set out in R. 11 EPC 1973, which states that the authority referred to in R. 10(2) EPC 1973 (the "Presidium") "shall adopt" the RPBA. The Enlarged Board concluded that the power under Art. 23(4) EPC 1973 to amend the RPBA belonged to the Praesidium of the boards of appeal, subject to the approval of the Administrative Council.

The Enlarged Board further stated that, according to Art. 33(1)(b) EPC 1973, the Administrative Council was competent to amend the Implementing Regulations. There were obviously limits to the exercise of its powers, however. The Administrative Council was not entitled to amend the Implementing Regulations in such a way that the effect of an amended rule would be in conflict with the EPC 1973 itself (Art. 164(2) EPC 1973). The Enlarged Board held that, according to the proper interpretation of R. 71a(1) EPC 1973, its mandatory procedural requirements were applicable to the first-instance departments of the EPO, but were not applicable to the boards of appeal. If R. 71a(1) EPC 1973 were to be interpreted as applying to all departments of the EPO, including the boards of appeal, its effect would be directly contradictory to and in conflict with the effect of Art. 11(2) RPBA 1980, which was adopted pursuant to Art. 23(4) EPC 1973 as the emanation of the independence of the boards of appeal. However, the Administrative Council must be presumed to know the limits of its own power. It was therefore reasonable to assume that the Administrative Council did not intend to amend R. 71 EPC 1973 so as to provide a conflict with a Rule of Procedure of the Boards of Appeal which it had itself previously approved.

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