1.4.1 Allocation of appeals

Before the beginning of each working year, in accordance with R. 12b(4) EPC and Art. 1(1) RPBA, a Business Distribution Scheme (BDS) is drawn up for the distribution among the boards of appeal of all appeals that may be filed during the year, designating the members who may serve on each board and their respective alternates. The scheme may be amended during the working year. A BDS is likewise determined for the Enlarged Board before the beginning of the working year (R. 13 EPC, Art. 2 RPEBA). This too may be amended during the working year.

In G 1/05 (OJ 2007, 362) the Enlarged Board stated that it was very important that board members discharged their duty to sit in the cases allocated to them. Board members cannot withdraw from the proceedings at will, i.e. for reasons which have nothing to do with the purpose of the provisions on exclusion and objection. On the other hand it should also be avoided that a board member has to sit in a case where they are convinced or fear that they might not be able to be impartial (see in this chapter III.J.2.1.).

In G 2/08 of 15 June 2009 date: 2009-06-15 the Enlarged Board also pointed out that its members had a duty to sit on the cases allocated to them (see also G 3/08 of 16 October 2009 date: 2009-10-16) according to their jurisdiction both "ratione legis" and "ratione materiae". That is to say, parties to judicial proceedings had a right to have their case considered and decided by the judge designated or appointed by law. This essential principle was even enshrined at a constitutional level in some EPC contracting states, e.g. Germany, Austria and Switzerland (see G 1/05, OJ 2007, 362; T 954/98 of 9 December 1999 date: 1999-12-09, J 15/04, R 2/14 of 17 February 2015 date: 2015-02-17, R 15/11). On the other hand, Art. 6(1) of the ECHR required inter alia that "in the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". The Enlarged Board found that these principles were not incompatible and had to be construed in such a way that they were not mutually exclusive.

In R 19/12 of 25 April 2014 date: 2014-04-25 the Enlarged Board likewise stressed that interpretation of the rules on objections of suspected partiality had to find a balance between two principles: no-one could escape the jurisdiction of the judge appointed by law, but on the other hand everyone had a fundamental right to a fair trial before an independent and impartial tribunal (Art. 6(1) ECHR, Art. 47(2) of the Charter of Fundamental Rights of the European Union).

In R 15/11 the board, referring to G 1/05 (OJ 2007, 362), held that not only could board members not withdraw from the proceedings at will, but also that the provisions on business distribution had to apply for a case to be re-opened before the board, unless there was a compelling reason for proceeding otherwise. It was therefore appropriate, when exercising the power of discretion conveyed by R. 108(3), second sentence, EPC, to consider the criteria and standards developed for the replacement of members of the board of appeal following an objection of suspected partiality pursuant to Art. 24(3) and (4) EPC.