3.5. Objection based on an obviously wrong understanding of the board's procedural obligations, the right to be heard and the principle of a fair trial

In T 355/13 the appellant suspected the board of partiality, inter alia because it had not provided a provisional opinion on decisive aspects of the case and because it had issued a summons to oral proceedings instead of remitting the case to the department of first instance. Referring to G 6/95 (OJ 1996, 649), the board stressed that there was no procedural obligation for the board to issue any provisional opinion, and that in inter partes proceedings it was not possible to automatically follow a party's request without giving the other parties the possibility to be heard on that request (in oral proceedings, if requested). The board considered the partiality objection inadmissible, as it was based on an obviously wrong interpretation of the board's procedural obligations, the right to be heard and the principle of a fair trial.

In T 2078/17 the board found that the allegation that the replacement board members had not acted impartially in admitting the communication with the decision to reject the request to correct the minutes was based on several legal misunderstandings. For one thing, the board made it clear that the rejection of the request to correct the minutes was, both formally and substantively, a decision of the entire board and not just of the minute-writer. As for Art. 3(3) RPBA, which states that there must be a decision on the objection before further proceedings in the case, the board concluded as follows: for obvious reasons, an exception necessarily had to be made for requests to correct minutes relating to oral proceedings before a board whose members had been rejected on the grounds of partiality. The decision on the request to correct the minutes in cases such as the one at issue could only be made by the members of the rejected board, in this case the original board, as only these members had taken part in the oral proceedings and only they could judge whether the request was justified. Otherwise, the replacement board's subsequent decision on the objection could rely on an incorrect legal and factual basis, and this would be unacceptable for reasons of legal certainty and procedural economy.