Zusammenfassung von EPC2000 Art 116(1) für die Entscheidung J0006/22 vom 26.07.2023

In J 6/22 the Legal Board handed down its decision that the request for re- establishment and the appeal be rejected as inadmissible without the oral proceedings requested by the appellant. In its decision, the Legal Board recalled R. 136(1) EPC corresponding to the principle of "Eventualmaxime", under which the request must state all grounds for re-establishment and means of evidence without the possibility of submitting these at a later stage. Only if this requirement is complied with may it be permissible to complement the facts and evidence in later submissions, provided that they do not extend beyond the framework of the previous submissions (see e.g. J 19/05). According to the Legal Board, this was not the case for either of the requests for re-establishment in the proceedings at hand. Thus, no further procedural steps were permissible, notably no further communication and no appointment of oral proceedings. Neither would serve any legitimate purpose. The Legal Board noted that it was not the purpose of oral proceedings in the context of proceedings for re-establishment to give the appellant a (further) chance to substantiate their factual assertions or to provide evidence despite the absence of factual assertions (see e.g. J 11/09). It was undisputed that the right to oral proceedings as guaranteed by Art. 116(1) EPC was a cornerstone of proceedings before the EPO. The jurisprudence of the boards generally followed the assumption of an "absolute" right to oral proceedings upon request. However, even this "absolute" right to oral proceedings upon a party's request was subject to inherent restrictions by the EPC and procedural principles generally recognised in the contracting states of the EPO (Art. 125 EPC). Such limits had also been recognised in the jurisprudence of the boards (see e.g. G 2/19, T 1573/20). The jurisprudence of the boards had repeatedly underlined that the requirement of legal certainty in due time was recognised as a fundamental principle enshrined in the EPC (e.g. G 1/97, G 3/97). This principle had also been reflected in the RPBA 2020. If oral proceedings did not serve any legitimate purpose, as in the case at hand, the requirement of legal certainty in due time would trump and even prevent a board from appointing oral proceedings. As to the interpretation of Art. 116(1) EPC, the Legal Board cited Art. 31(1) Vienna Convention, which provides that the starting point for the interpretation of the terms used in a treaty provision is their ordinary meaning in their context in light of the provision's object and purpose. However, the jurisprudence of the boards had also reiterated the importance of a "dynamic" interpretation of the EPC in light of its object and purpose (G 2/12, G 2/13, G 3/19, G 3/98). In this context, the Legal Board referred, among others, to the development of the case law of the European Court of Human Rights (ECtHR) on Art. 6(1) ECHR. The ECtHR had also identified occasions where oral proceedings could or even should be dispensed with in pursuit of a party's right to a fair trial. In the Legal Board's view, a literal interpretation of Art. 116(1) EPC conflicted with the legislature's aims when oral proceedings would serve no purpose and thus only prolong proceedings to no one's avail. A narrow interpretation of Art. 116(1) EPC therefore had to make way for a dynamic and evolutive understanding instead, in light of the provision's object and purpose. The very purpose of Art. 116(1) EPC could be seen as providing for the essential right to be heard in oral proceedings only insofar as these served a legitimate purpose and thus did not run counter to the requirement of legal certainty in due time as a further essential element of a fair trial for all parties. In a case like the current one, legal certainty in due time, just as procedural economy, as a further essential cornerstone of a fair trial, had to prevail.