R 0008/15 (Fundamental violation of the right to be heard) of 18.07.2016

Parties entitled to advance indications of the reasons for a decision (no)
Decision non-reasoned for purposes of the right to be heard (no)
Petition allowable (no) – no violation of petitioner’s right to be heard
European Court of Human Rights: Luka v. Romania, No. 34197/02; Hadjianastassiou v. Greece, No. 12945/87; Schumacher v. Germany, No. 14029/05

1. Article 113(1) EPC implies that decisions of the EPO boards of appeal should adequately state the reasons on which they are based in order to show that the parties were heard. A party must be able to examine whether, in its view, the board has afforded it the right to be heard in order to be in a position to decide on whether or not to file a petition under Article 112a(2)(c) EPC (in force since 13 December 2007) for violation of Article 113(1) EPC. One aspect of the right to be heard as covered by Article 113(1) EPC requires a board to consider a party’s submissions, i.e. assess the facts, evidence and arguments submitted as to their relevance and correctness. Article 113(1) EPC is infringed if the Board does not address submissions that, in its view, are relevant for the decision in a manner adequate to show that the parties were heard on them, i.e. that the Board substantively considered those submissions. (See Reasons, point 2.2.2.)
2. Assessing the completeness of a decision would usually be beyond the scope of scrutiny under Article 113(1) EPC. As to the reasons for a decision, Article 113(1) EPC must be interpreted more narrowly than, and thus is not a substitute in review proceedings for, the broader legal provisions embodied in Rule 102(g) EPC. Those provisions require a board to give reasons for its decision, but infringement thereof is not as such a ground for review. In other words: for the purpose of compliance with the right to be heard, reasons may be incomplete, but as long as they allow drawing the conclusion that the board, in the course of the appeal proceedings, substantively assessed a certain point being part of the procedure and that it found to be relevant, there will be no violation of Article 113(1) EPC. (See Reasons, point 2.2.3.)