8.3.3 Case law concerning oral proceedings held after the end of pandemic-related measures at the Boards of Appeal

Two main lines can be identified in the case law after the end of pandemic-related measures at the Boards of Appeal. In the majority of decisions, the teaching of G 1/21 date: 2021-07-16 is considered applicable beyond a general emergency and as providing framework for the exercise of the discretionary power under Art. 15a RPBA (T 2432/19, T 274/20, T 489/20, T 1171/20, T 1501/20, T 2609/22, T 385/23, T 745/23, T 939/23; see in this chapter III.C.8.3.3 b)). According to another view, Art. 15a RPBA was a "follow-up" provision to G 1/21 date: 2021-07-16 and the teaching of the latter currently had only a "limited applicability" (T 618/21; see in this chapter III.C.8.3.3 a)).

A number of decisions generally apply the principle of "appropriateness" and/or emphasise the board's discretion under Art. 15a RPBA without reference to the considerations set out in G 1/21 date: 2021-07-16 (T 3277/19, T 1067/21, T 2075/21, T 331/22, T 1847/22, T 744/23, T 1497/23; see in this chapter III.C.8.3.3 c)). However, the reasoning of some of these decisions is reminiscent of G 1/21 date: 2021-07-16, e.g. when taking travelling restrictions into account (see e.g. T 3277/19).

Further aspects have also been addressed in the case law, e.g. requirements for holding "mixed-mode" oral proceedings (T 1946/21; see in this chapter III.C.8.3.3 d)) and the applicability of considerations set out in G 1/21 date: 2021-07-16 to first-instance proceedings and to hearing a witness by videoconference (T 423/22). The oral proceedings before the opposition division in T 423/22 took place prior to the end of pandemic-related measures at the Boards of Appeal. Nevertheless, this case is dealt with in this chapter instead of chapter III.C.8.3.4 f) since the board analysed the hearing of a witness by videoconference in general terms and also referred to the technical possibilities in place on the date of the board's decision, i.e. after the end of pandemic-related measures at the Boards of Appeal (see in this chapter III.C.8.3.3 e)).

While the applicability of considerations set out in G 1/21 date: 2021-07-16 to first-instance proceedings was not explicitly discussed in T 1523/23, the board repeatedly referred to the reasoning of G 1/21 date: 2021-07-16 when assessing the format of the first-instance oral proceedings in the case in hand (see in this chapter III.C.8.3.3 e)).

Some boards (see e.g. T 618/21, T 745/23), when dealing with requests for a referral to the Enlarged Board of questions related to the format of oral proceedings, addressed crucial topics related to G 1/21 date: 2021-07-16 and Art. 15a RPBA (see in this chapter III.C.8.3.3 f)).