6.1.1 Previous participation in cases as members of the boards of appeal

In G 1/05 date: 2006-12-07 (OJ 2007, 362) a member of the Enlarged Board was objected to because he had been the Chair of a technical board which had given a prior decision related to the question of law referred to the Enlarged Board. The Enlarged Board held that to the extent that the participation in a referral of a board member who had already dealt with the matter as a member of a board of appeal was not excluded by the relevant provisions (Art. 1(2) RPEBA and Art. 2(3) BDS of the Enlarged Board), an objection of partiality could not be based on that very fact alone (see also G 2/08 of 15 June 2009 date: 2009-06-15 and R 12/09 of 3 December 2009 date: 2009-12-03). On the contrary, unless there were specific circumstances casting doubt on the member's ability to approach the parties' submissions with an open mind on a later occasion, there could not be any objectively justified, i.e. reasonable, suspicion of partiality against a member of the Enlarged Board. Moreover, if all members of the Enlarged Board having once taken part in a decision expressing a view on a point of law which was then referred to the Enlarged Board were to be excluded from taking part in that referral, it could become impossible to allocate the number of Enlarged Board members needed to conduct the case. The Enlarged Board noted that the situation could be viewed differently if there were deficiencies in the view expressed to such an extent that there was reason to believe that they were the result of a preconceived attitude. It would also have been different if a board member had pronounced on a matter to be decided with his or her participation in such outspoken, extreme or unbalanced terms, be it in the course of or outside the proceedings, that his or her ability to consider the arguments put forward by the parties with an open mind and without a preconceived attitude and to bring an objective judgment to bear on the issues before him or her, could be doubted.

In interlocutory decision R 4/24 of 19 August 2024 date: 2024-08-19, the Enlarged Board noted that in a referral under Art. 112 EPC the Enlarged Board answered questions of law, while the application of the law in question to the facts of the appeal case rested exclusively with the competent board of appeal. Thus, the Enlarged Board was of the view that the fact that the Chair in the petition for review case at issue had also been Chair in G 2/21 (OJ 2023, A85), which was then applied in T 116/18 of 28 July 2023 date: 2023-07-28 – against which decision the petition of review at issue had been filed – did not exclude the objected to Chair from taking part in said petition for review case. The Chair had not participated in the decision that was the subject of the petition for review and was therefore not excluded under Art. 2(6), second sentence, RPEBA, from acting as Chair in the petition for review case. The Enlarged Board acknowledged that G 2/21 was binding for the decision under review; but pointed out that a decision by the Enlarged Board under Art. 112 EPC and the following final decision by the referring board were separate decisions. Moreover, it saw no other reasons, whether or not mentioned in Art. 24(1) EPC, for excluding the Chair from the review case at issue.