5.3.1 Expressions of preliminary opinions

In T 241/98 of 22 March 1999 date: 1999-03-22 the board of appeal observed that forming an opinion was one of the most important tasks of a board. Issuing a preliminary opinion was to be seen within this context and therefore could not be regarded as partial (see also T 355/13, T 2175/15 of 23 June 2023 date: 2023-06-23 and chapter III.J.6.2.3).

In T 355/13 the board held that the issuing of a preliminary opinion could not per se be regarded as a sufficient ground for an objection of suspected partiality. In the case in hand the board found that it was immediately apparent that the annex to the proceedings was in all its parts clearly written as a merely preliminary, non-binding opinion, evidenced not only with the introductory wording " [the] following observations are made without prejudice to the board's final decision", but also expressions used throughout. The board came to the conclusion that the annex to the summons in the case in hand could not support the allegations brought forward in relation to the objection of suspected partiality.

In T 2440/16 of 17 May 2022 date: 2022-05-17 the board held that a board was not generally obliged to give explanations or grounds for its provisional or (after discussion and deliberation) final opinion during oral proceedings. As a general rule, the lack of such grounds could not therefore justify a suspicion of partiality. Adhering to a provisional opinion following discussion of the substantive and legal position in the oral proceedings and subsequent deliberation was not an appropriate reason for suspecting partiality. It is in the nature of proceedings that the deciding body must make a (interim) decision after discussing the facts and legal position and after the subsequent deliberation.

In T 2175/15 of 1 April 2022 date: 2022-04-01 (interlocutory decision), the board found that merely provisional, non-binding opinions could also be the subject of an objection (here the summons, in which the board, among other things, expressed doubts about the admissibility of the first objection). Objections on the grounds of suspected partiality arise not only when a party has been adversely affected by the board's decision (see also T 49/15, T 1677/11). Provisional statements in a summons that relate to issues raised in a case do not, in principle, provide grounds for objection if the provisional statements: do not favour a party, for example by providing information not covered by Art. 114(1) EPC; are objectively stated, i.e. do not contain, for example, any derogatory comments about a party or their representative; do not amount to an application of the law that is so grossly incorrect as to be considered arbitrary. However, the replacement board in T 2175/15 of 23 June 2023 date: 2023-06-23 noted with regard to the third criterion (grossly incorrect and therefore arbitrary application of the law) that ultimately the specific circumstances of the individual case must always be decisive and that it must at all times be determined whether such an arbitrary application of the law gives rise to the legitimate fear that it is indeed an expression of bias against a party. A grossly incorrect application of the law could also be due to reasons other than bias against a party, such as the board's simple belief in the correctness of the actually grossly incorrect legal opinion. It was also conceivable that such grossly incorrect legal views could affect both parties in the same proceedings. In such a situation, it would appear difficult to conclude that the board was biased against a party.

The objectivity of the provisional opinion was also examined and confirmed in R 2/12 of 26 September 2012 date: 2012-09-26, in which the board held that " ... the communication ... itself does not contain any bold contention, nor has been substantiated in 'such outspoken, extreme or unbalanced terms' that it would preclude the capacity of the member concerned from dealing with the pending petition with an open mind and without preconceived thoughts."

See also in this chapter III.J.6.2.3.