2.1. Notices of self-recusation

Under Art. 24(2) EPC, if, for one of the reasons mentioned in Art. 24(1) EPC, or for any other reason, a member of a board of appeal or a member of the Enlarged Board considers that he should not take part in any appeal, he shall inform the Board accordingly.

In G 1/05 (OJ 2007, 362) a member of the Enlarged Board informed it that she ought not to be taking part in the referral, since one of the opponents in the underlying case was represented by the law firm in which her husband and her son were partners. The Enlarged Board noted that in accordance with Art. 24(4) EPC, a notice of withdrawal did not automatically effectuate the exclusion of the board member concerned from the proceedings; an exclusion required a decision by the board in its composition according to Art. 24(4) EPC, the outcome of which was not anticipated by the notice of withdrawal (see also J 15/04, see also R 2/15 of 21 October 2015 date: 2015-10-21, T 1627/09 of 14 September 2018 date: 2018-09-14). The Enlarged Board held however that if a member of a board of appeal in a notice of withdrawal under Art. 24(2) EPC 1973 gave a ground which could by its nature constitute a possible ground for an objection of partiality, that ground should normally be respected by the decision on replacement of the board member concerned because it could be expected that the member submitting the notice knew best whether or not a possible suspicion of partiality might arise.

In J 15/04 the board noted that if one accepted that a notice of self-recusation would immediately and automatically exclude the member concerned, then the party's formal right to a hearing before a duly appointed member of the board as established by the EPC would be violated. The grounds of possible partiality given by a board member in a notice of self-recusation should normally be respected by the decision. It could be expected that the member submitting a notice of self-recusation based on specific facts knew best whether or not a possible suspicion of partiality might arise. The public or a party should not suspect bias after a decision of a board of appeal finding no grounds of suspicion of partiality (see also T 584/09 of 1 March 2013 date: 2013-03-01).

In R 2/15 of 21 October 2015 date: 2015-10-21 the Enlarged Board held that in the case of a party's objection under Art. 24(3), first sentence, EPC (see in this chapter III.J.2.3.) it had to be established that there was subjective partiality or at least an appearance of partiality (objective partiality). In the case of self-recusation, however, it was sufficient that an appearance of partiality was at least arguable in the circumstances of the case.

In T 1627/09 of 14 September 2018 date: 2018-09-14 the board accepted the notices of recusation submitted by both the Chair and the legal member of the board in accordance with Art. 24(2) EPC. They had both formed part of the board in T 1627/09 of 10 October 2013 date: 2013-10-10 (decision set aside by R 2/14 of 22 April 2016 date: 2016-04-22, which ordered the proceedings be re-opened) and they held that if they remained as members of the board, they would have to decide for a second time on the same issues. The board referred to the jurisprudence of the boards of appeal mentioned above in this chapter and held further that this was in accordance with Art. 6(1) ECHR and Art. 47(2) of the Charter of Fundamental Rights of the European Union (CFR). The board referred to the case law of the ECtHR on Art. 6(1) ECHR that only under very exceptional circumstances a notice of self-recusation shall not lead to a replacement (inter alia, ECtHR, Rudnichenko v. Ukraine, no. 2775/07). As an example of national case law that followed the same lines, the board referred to Austrian Supreme Court 4 Ob 186/11y EFSlg 131.987.