5.3.4 Discretionary procedural decisions negatively affecting a party

In T 954/98 of 9 December 1999 date: 1999-12-09 the board held, with reference to T 843/91 (OJ 1994, 818), that the mere taking of discretionary procedural steps which might disadvantage a particular party was not enough to justify exclusion, not even if the party interpreted those steps as expressing bias against it.

In T 190/03 date: 2005-03-18 (OJ 2006, 502; see also T 283/03, T 572/03 of 18 March 2005 date: 2005-03-18 and T 985/01 of 18 March 2005 date: 2005-03-18) the board held that not admitting amended claims, regardless of whether the board had correctly used its power or discretion to do so, would not give rise to an objectively justified fear of partiality.

In T 2175/15 of 11 June 2024 date: 2024-06-11 the board found that it was at a Chair's – normally non-reviewable – discretion to adjourn oral proceedings with a view to ensuring "their fair, orderly and efficient conduct" (see Art. 15(4) RPBA), irrespective of any legal requirement to do so. Although not convinced that the board as originally composed had indeed been applying, specifically, Art. 13(3) RPBA 2007 when admitting the auxiliary request and adjourning the oral proceedings, the board ruling on the partiality objection found that, even supposing it had, there was insufficient evidence that its members had acted arbitrarily in a way that could objectively justify suspecting them of partiality. If a board applied a legal provision contrary to its wording without providing any sort of adequately comprehensible explanation, acting, so to speak, "on a whim", that might indicate arbitrariness. But that was not what had happened in the case at issue.