f) Refusal of requests for a new referral 

When dealing with requests for a new referral to the Enlarged Board of questions concerning the format of oral proceedings, the boards addressed, among others, the compatibility of Art. 15a(1) RPBA with G 1/21 date: 2021-07-16, alleged differences in boards' interpretations of G 1/21 date: 2021-07-16, alleged different boards' practices as well as the criteria for the exercise of boards' discretion under Art. 15a(1) RPBA. See also chapter V.B.2.3. "Referral by a board of appeal".

(i) Compatibility of Article 15a(1) RPBA with G 1/21 date: 2021-07-16

The appellant in T 618/21 submitted a request for referral to the Enlarged Board of, inter alia, a question concerning the compatibility of the discretion granted under Art. 15a(1) RPBA with decision G 1/21 date: 2021-07-16. The board found that Art. 15a(1) RPBA did not conflict with G 1/21 date: 2021-07-16.

(ii) Questions answered by G 1/21 date: 2021-07-16

The appellant in T 745/23 requested the referral of a question to the Enlarged Board as to whether the conduct of oral proceedings as a videoconference in appeal proceedings outside a general emergency situation without the consent of the parties is in accordance with the EPC. The board held that this question has already been answered by the Enlarged Board in section C.5 of the decision G 1/21 date: 2021-07-16. Despite the judgment essentially being limited to the pandemic, this section undoubtedly had a general character (as also acknowledged in T 2432/19).

(iii) Alleged differences in boards' interpretations of G 1/21 date: 2021-07-16 and Article 15a RPBA

The board in T 745/23 did not agree with the appellant that there were fundamental differences in interpreting decision G 1/21 date: 2021-07-16. It noted that few decisions, such as T 618/21, cited by the appellant, had taken the view that Art. 15a RPBA alone allowed the board to decide of its own motion to hold videoconferences where appropriate. However, the majority of the jurisprudence, and this board shared this view, did not interpret Art. 15a RPBA outside the teaching of decision G 1/21 date: 2021-07-16 (see e.g. T 2432/19 and T 2303/19). Furthermore, it held that the criteria it had applied in the exercise of its discretion appeared to be amongst those consistently adopted by the boards (see e.g. T 2432/19, T 1171/20 and T 758/20) and thus, there seemed to be no divergence in the case law.

Similarly, the board in T 423/22 held that there was no conflicting case law of the boards of appeal as alleged by the appellant.

(iv) Alleged different boards' practices 

The board in T 745/23 confirmed that it was aware of the fact that some boards issue the summons to oral proceedings by videoconference by default and others summon in person by default. However, this practice was normally unproblematic since it followed the experience acquired by each board from the pandemic, based on the requests and acceptance of the parties normally acting before the relevant board. Nevertheless, after summons were issued, parties may always request conversion into another format.

(v) Criteria for the exercise of boards' discretion under Article 15a RPBA 

According to the board in T 618/21 there was no universally applicable set of criteria for how boards should exercise their discretion under Art. 15a RPBA. It depended on the specific circumstances of the individual case. As a result, the Enlarged Board could not give a definitive answer that applied to all cases; instead, various criteria would emerge from the case law. This might in turn lead to case law that appeared inconsistent at first glance. However, it was in the nature of discretionary decisions that they were made on a case-by-case basis, which meant that it would not always be clear to the parties in advance how the particular board would decide.

With regard to the question concerning clearly defined criteria for exercising boards' discretion under Art. 15a RPBA, the board in T 745/23 found that any answer to it depended on the specific case and providing anything more than general instructions would risk compromising the principle of judicial discretion.