5.1.8 Review of first-instance discretionary decisions by the boards

According to the settled jurisprudence of the boards of appeal developed in view of decision G 7/93 (OJ 1994, 775), a board should only overrule the way in which a department of first instance has exercised its discretion if it concludes that the department has done so according to the wrong principles, or without taking into account the right principles, or in an unreasonable way (see e.g. T 879/18, T 491/09, T 1933/12, T 222/16).

This case law has been codified in Art. 12(6) RPBA 2020, first sentence, according to which the board "shall not admit requests, facts, objections or evidence which were not admitted in the proceedings leading to the decision under appeal, unless the decision not to admit them suffered from an error in the use of discretion or unless the circumstances of the appeal case justify their admittance" (T 1617/20; see also T 1191/20).

For further details, see chapters V.A.4.1.1b) and V.A.3.4.1 below.