2.3.6 Supplementary means of interpretation – "travaux préparatoires"

Under Art. 32 Vienna Convention, recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Art. 31, or to determine the meaning when the interpretation according to Art. 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable (see T 128/82, OJ 1984, 164; see also G 2/07, OJ 2012, 130, point 4.3 of the Reasons; G 1/08, point 4.3 of the Reasons; G 2/12 and G 2/13, point VII.5.(1) of the Reasons; T 2320/16, point 1.5.8 of the Reasons).

In G 2/12 and G 2/13 (point V.(4) of the Reasons) the Enlarged Board stated that the preparatory work ("travaux préparatoires") and the circumstances of the conclusion of the EPC serve only as supplementary sources of evidence to confirm the result of the interpretation or if no reasonable meaning can be determined by applying the general rule of interpretation (Art. 32 Vienna Convention).

According to opinion G 1/18, it follows from Art. 32 Vienna Convention that the "travaux préparatoires" and the circumstances in which the EPC was concluded are to be taken into consideration to confirm a meaning or to determine the meaning when the initial interpretation according to the ordinary meaning would create ambiguity or lead to an absurd result. In G 1/18, the Enlarged Board also set out the conclusions reached by boards of appeal on the basis of their analysis of the "travaux préparatoires" in the context of Art. 108 EPC and held them to be incorrect. In point V. of its opinion G 1/18, the Enlarged Board observed that neither Art. 108 EPC nor any other provision of the EPC or its Implementing Regulations expressly laid down the legal consequence arising in cases of failure to file the notice of appeal or pay the appeal fee within the two-month time limit under Art. 108 EPC, and that case law on the matter had been based on the travaux préparatoires on Art. 108 EPC. While the "majority" view in the case law had inferred from the provisions' silence and by simple reference to the travaux préparatoires on Art. 108 EPC that the applicable legal consequence was that the appeal was deemed not to have been filed, the "minority" view in the case law, based on an analysis of the travaux préparatoires on Art. 108 EPC and a reading of R. 65(1) EPC 1973 (now R. 101(1) EPC), concluded that the appeal was inadmissible. The Enlarged Board then found that an analysis of the travaux préparatoires relating to former R. 69(1) EPC 1973 (now R. 112(1) EPC), and not to Art. 108 EPC, showed that the legislator had initially envisaged making express provision there for the legal effect of a loss of rights in the event of the appeal not being filed but that, in the course of the discussions on the rule, and with a view to simplifying things, it preferred to use a general wording covering all legal situations involving a loss of rights in the final version of R. 69(1) EPC 1973.

The Enlarged Board in G 4/19 considered that a provision falling under Art. 125 EPC may well cover issues which touch upon substantive matters. This interpretation could be based on the EPC itself, without reference to the preparatory documents (see point 27 of the Reasons). As regards another aspect of the interpretation of Art. 125 EPC (legal basis for a prohibition on double patenting; whether any such principle exists and is generally recognised in the contracting states), the Enlarged Board considered whether recourse could be had to the preparatory documents (see points 43 et seq. and 63 and 76 of the Reasons). On that point, the Enlarged Board did not endorse the opinion that the interpretation of the EPC (in itself) provided a clear answer. On the contrary, there were good reasons, including on the basis of Art. 32 Vienna Convention, for consulting the "travaux préparatoires". The Enlarged Board concluded that the preparatory documents demonstrated with overwhelming certainty that there was a real and effective agreement that the EPO should prohibit double patenting by taking into account principles of procedural law generally recognised in the contracting states, i.e. by direct application of Art. 125 EPC. Since the competent legislator, here the Diplomatic Conference, had made it clear that this was a principle falling under Art. 125 EPC as a matter of interpretation of the law, the EPO was not only empowered to apply this principle but effectively also duty-bound to do so. On one specific point, the Enlarged Board found that it was more instructive to look at the German version of the "travaux préparatoires" than at their English text. The French version conveyed the same meaning as the German (G 4/19, see points 88 et seq. of the Reasons).

In J 4/91 (OJ 1992, 402), for example, the Legal Board drew on historical material relating to the EPC 1973 to support its view, arrived at from a teleological and systematic interpretation of the relevant provisions, regarding the additional period for paying renewal fees. G 1/98 (OJ 2000, 111) discussed the purpose of Art. 53(b) EPC 1973, its relationship to other international treaties and legal texts, and its legislative history. In G 3/98 and G 2/99 (OJ 2001, 62 and 83), the Enlarged Board reached its conclusions on Art. 55(1) EPC 1973 after interpreting the wording and considering also the legislator's intention and the aspects of systematic, historical and dynamic interpretation.