c) Establishing the (non-)existence of a general emergency

In some decisions, the boards had to react to parties’ allegations as to the absence or existence of a general emergency impairing the parties' possibilities to attend oral proceedings in person. Exceptionally, neither parties raised this issue nor did the board explicitly deal with the existence of a general emergency. Examples of this case law are provided below.

In T 541/17 the board confirmed that there had been neither travel restrictions nor quarantine requirements in force in Germany in March 2022, when the board had communicated its intention to hold the oral proceedings by videoconference. However, in that period the Omicron variant of COVID-19 had been spreading at a high rate in Germany. Experience in the preceding two years had shown that restrictions could be reintroduced by health authorities at short notice. Therefore, in March 2022 there had been good reasons for the board to change to videoconference the format of the oral proceedings of 18 May 2022 as provided for by Art. 15a(1) RPBA (for the same reasoning see also T 1296/17).

On the constraints or obstacles impairing the parties' ability to attend in person, the appellant in T 250/19 argued that the pandemic had come to an end in Germany in November 2021 as the state of emergency had not been extended and only hygiene measures had remained in place since then. The board disagreed and pointed out, among other things, that it was for the board to assess whether there was an emergency situation, even if it took announcements made by authorities into account. It then observed that restrictions had remained in place and had continued to apply on dates relevant in the case in hand. Lastly, it was not only the situation in Germany that counted; the respondent's representatives had their place of business in France, which had been classed as a "high-risk area" at the time.

In T 2341/16 the appellant referred to the COVID-19 infection rates in the United Kingdom and in Munich and requested that the oral proceedings be held as a videoconference. In a communication dated 11 April 2022, the board noted that there seemed to no longer be any official limitations or impairments affecting the appellant's ability to attend oral proceedings in person. Hence the board was not convinced by the appellant's arguments and maintained its intention to hold the oral proceedings in person.

In T 2303/19 the board agreed with the respondent that at the relevant time (November-December 2022) there were no COVID-19-related travel restrictions which would have impaired the parties' possibilities to attend in-person oral proceedings at the EPO premises, and that in-person oral proceedings were at that time the optimum format as expressed in decision G 1/21 date: 2021-07-16 (see also T 1198/17).

In T 1158/20 the board stated that despite the appellant's allegation to the contrary, the COVID-19 pandemic was ongoing in November 2022 and there were still restrictions at the premises of the Boards in Haar. The absence of travel restrictions was not a clear indication that oral proceedings must be held in person. The appellant argued that the absolute number of infections in the region of Munich but also the incidence of infections was low at the date of the oral proceedings. The board took the view that it was not possible to objectively define a threshold for the number of infections (or for any other parameter) below which it would be acceptable to expose the parties or the members of the board to the virus (see also T 758/20).

Challenging the videoconference format of the oral proceedings in T 1624/20, the appellant argued in particular that the emergency situation related to COVID-19 had come to an end, that imposing a videoconference was at odds with G 1/21 date: 2021-07-16 and that there had been no official announcement by a government agency. The board observed that, according to point 50 of the Reasons in G 1/21 date: 2021-07-16, it was for the board to assess whether there was a general emergency impairing the parties' ability to attend in person. The board found that the incidence rates in Germany and in France, where the representatives had their places of business, had been increasing in December 2022. In view of that risk, there had still been a general emergency within the meaning of G 1/21 date: 2021-07-16.

In T 1709/18 opponent 1 had requested that the oral proceedings be held by videoconference. The only reason it gave was that its legal representative's place of business was in Berlin. The board informed opponent 1 that it did not consider this to be a sufficient reason to change the plan to hold the oral proceedings in person. Opponent 1 did not raise the issue of whether the parties' ability to attend in person might be impaired in this specific case by a general emergency, and the board did not address it in its reasons either.