1.5. "Subjective" and "objective" test, presumption of impartiality

Determining impartiality within the meaning of Art. 24(3) and 24(4) EPC, in the case law developed by the Enlarged Board and the boards of appeal in line with the case law developed by the ECtHR under Art. 6(1) ECHR means applying firstly, a "subjective" test requiring proof of actual partiality of the member concerned; and secondly, an "objective" test according to which the deciding board judges whether the circumstances of the case give rise to an objectively justified fear of partiality (see T 190/03, OJ 2006, 502, and R 8/13 of 20 March 2015 date: 2015-03-20, OJ 2006, 502. See also T 1021/01 of 18 March 2005 date: 2005-03-18; T 1193/02; T 281/03 of 18 March 2005 date: 2005-03-18 and T 281/03 of 30 March 2006 date: 2006-03-30; T 283/03; T 572/03 of 18 March 2005 date: 2005-03-18). Actual partiality is an internal characteristic of the member concerned, its presence clearly objectionable because it goes against the principle of a fair trial. However, suspicion and appearances are not enough to show actual partiality. It is a fundamental duty of a board member acting in a judicial capacity to take decisions objectively and not be swayed by personal interest or other peoples' comments or actions. Thus, a board member's personal impartiality is to be presumed until there is proof to the contrary (in addition to the case law cited above, see in particular G 2/08 of 15 June 2009 date: 2009-06-15; see also R 19/12 of 25 April 2014 date: 2014-04-25.

On the other hand, the appearance of partiality involves external aspects and reflects, regardless of whether the member was actually biased or not, the confidence that the board inspired in the public; "Justice must not only be done; it must be seen to be done" (see in addition to the case law above G 1/21 of 17 May 2021 date: 2021-05-17, T 900/02, T 2291/08; see also R 8/13 of 20 March 2015 date: 2015-03-20). The boards have held that this aspect of partiality did not need to be proved in the same way as actual partiality, but rather it had to be established whether the circumstances gave rise to an objectively justified fear of partiality (objective element). This essentially corresponds to the "objective" and "reasonable" grounds identified in the case law of the EPO and is in line with generally acknowledged procedural principles in the contracting states, e.g. the jurisprudence of the European Court of Human Rights (ECtHR).

In G 1/05 (OJ 2007, 362) the Enlarged Board stated that, for an objection under Art. 24(3), first sentence, EPC to be justified, it was not necessary that the board member concerned actually be partial. It sufficed that there was a suspicion (see chapters III.J.4., III.J.5. and III.J.6. below), i.e. an appearance, of partiality (called the "objective test" in the ECtHR jurisprudence since Piersack v. Belgium (1982) of 1 October 1982, No 8692/79, paragraph 30). There should be no risk that the courts would not ensure that justice was both done and perceived by the public to have been done (see also R 19/12 of 25 April 2014 date: 2014-04-25, T 190/03, OJ 2006, 502; ECtHR: Puolitaival and Pirttiaho v. Finland of 23 November 2004, No. 54857/00). The Enlarged Board noted that it was, however, also commonly recognised in the jurisprudence of the boards of appeal and elsewhere that the party's "suspicion" had to be justified on an objective basis. Purely subjective impressions or vague suspicions were not enough (see also G 3/08 of 16 October 2009 date: 2009-10-16, R 2/12 of 26 September 2012 date: 2012-09-26; and see T 190/03, OJ 2006, 502, and also e.g. T 985/01 of 18 March 2005 date: 2005-03-18). Thus the deciding board judges whether the overall circumstances of the case could give rise to an objectively justified fear of partiality. This conclusion was in line with the ECtHR case law, e.g. see Puolitaival and Pirttiaho v. Finland: "The standpoint of the person concerned was important but not decisive" (see also T 241/98 of 22 March 1999 date: 1999-03-22 and R 8/13 of 20 March 2015 date: 2015-03-20). With respect to the objective test, the question to be answered was thus whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not or would not bring an impartial mind to bear on the adjudication of the case. It was thus necessary that a reasonable onlooker considering the circumstances of the case would conclude that the party might have good reasons to doubt the impartiality of the member objected to (see also G 1/21 of 17 May 2021 date: 2021-05-17, T 954/98 of 9 December 1999 date: 1999-12-09, T 1257/14 of 5 February 2018 date: 2018-02-05).

In T 2274/22 a member of the public attending oral proceedings with the opponent had been present during the interpreter briefing, albeit undisputedly by mistake. The board considered that there was a considerably greater risk of this kind of thing happening in videoconferences than at in-person oral proceedings. Indeed, owing to the lack of physical proximity and only indirect presence associated with a videoconference, it could even come about more quickly that such an incident would be outwardly perceived in a negative light and a "bad impression" formed, and the threshold for suspecting partiality could be lower as a result. High standards therefore had to be met in terms of the proper conduct of the proceedings, especially when it came to handling technical malfunctions. In the case in hand, it could not initially have been apparent to the patent proprietor that the opposing party might have gained an advantage, and so it had been all the more entitled to expect that the opposition division would immediately inform it of what had happened.