5.2. Grounds for exclusion under Article 24(2) EPC: any other reason

In G 1/05 (OJ 2007, 362) the Enlarged Board stated, with reference to R. 28(2)(a) of the Rules of Court of the European Court of Human Rights and national civil procedure rules, that a close family relationship with a party was one of the classic grounds for legally excluding a judge from taking part in the case concerned. That was not generally so where a family or other close relationship was not with the party but with a representative of the party. If a member of a board of appeal in a notice of withdrawal gives a ground which may 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 can be expected that the member submitting the notice knows best whether or not a possible suspicion of partiality could arise (see also J 15/04).

In J 15/04 the Legal Board noted that the notices of self-recusation were based on the situation that the two members concerned did not share the Chair's legal opinion in respect of the occurrence of a possible suspicion of partiality and a presumption that the appellant might therefore doubt their legal integrity. It held that a legal disagreement between the members of a board as such did not establish any ground for exclusion or objection under Art. 24 EPC. Each member of a board was responsible for a decision even if he was voted down by the majority of the other members of the board.

In T 584/09 of 1 March 2013 date: 2013-03-01 the board held that the reason the members had given for recusing themselves, namely the avoidance of any appearance of partiality resulting from their having to decide afresh on the same matters, could be an "other reason" within the meaning of Art. 24(2) EPC (see also T 1627/09 of 14 September 2018 date: 2018-09-14).

In T 1656/17 a technically qualified member of the alternate board informed it in a notice of exclusion that they considered that they should not take part in the appeal proceedings as there existed a close family relationship between them and a person who had been involved in the first-instance proceedings. The alternate board decided that in the case in hand the technically qualified member concerned should be replaced. It was at least arguable that a board member who had family ties to a person involved in the first-instance proceedings might have an interest in confirming the findings of those proceedings and could therefore appear to be biased.