e) Exercising of discretion 

In T 208/00 the board considered that the department of first instance had to be granted a certain degree of latitude in exercising its power of discretion, which, in the case in hand, it had not overstepped in a clearly inappropriate manner. It stated that it was not equitable to reimburse the appeal fee, especially as under the established case law of the boards of appeal (see T 860/93) not even "a gross error of judgment" by the department of first instance was regarded as justifying such reimbursement.

In T 248/00 the board decided that, where a late submission was not admitted, an irregularity had taken place if the department had exercised its discretion incorrectly, that is to say on the basis of irrelevant or arbitrary considerations (see also T 1651/10). The board held that, even if the non-admission might ultimately prove to be incorrect, such application of the law did not amount to a substantial procedural violation. The issue was, rather, whether the opposition division's discretion had been incorrectly exercised in not admitting a late-filed request.

In T 2249/08 the board held that it was apparent that the opposition division had exercised its discretion to disregard "facts and evidence" presented belatedly, i.e. after a final date in preparation for oral proceedings. It stated that such discretionary decisions were not normally subject to review, unless the decision was based on the wrong principles or was otherwise manifestly unreasonable. Thus any finding of a substantial procedural violation through a discretionary decision also presupposed such grave errors, as opposed to mere errors of judgement.