4.1.1 Legal basis
The RPBA lay down precise provisions on later amendments to a party's case which, in particular, explicitly leave it to the board's discretion whether to admit them (regardless of whether they relate to facts, objections, evidence or requests). The RPBA were thoroughly revised in 2019, with the new version entering into force on 1 January 2020 (this thoroughly revised version is hereinafter referred to as "RPBA", first published in OJ 2019, A63, republished in OJ 2021, A35 with Art. 15a RPBA and in OJ 2023, A103 again with further amendments, in particular in Art. 13(2) and 15(1) RPBA; on the RPBA generally, see also chapter V.A.1.2.).
Under Art. 12(2) and (4) RPBA, the boards have discretion not to admit an amendment to the case made by a party at first instance or, more precisely, not to admit submissions on appeal which are not directed to requests, facts, objections, arguments or evidence on which the decision under appeal was based and for which the party has not demonstrated that they were admissibly raised and maintained at first instance. In addition, Art. 12(6) RPBA, in a similar way as Art. 12(4) RPBA 2007 before it, explicitly refers to the boards' discretion not to admit requests, facts, objections or evidence which were not admitted in the first-instance proceedings (first sentence) or which should have been submitted or were not maintained in those proceedings (second sentence). Such submissions are not to be admitted unless the decision not to admit them at first instance suffered from an error in the use of discretion or the circumstances of the appeal case justify admitting them. For details on how these provisions have been interpreted in the case law, see chapter V.A.4.3. "First level of the convergent approach – submissions in the grounds of appeal and the reply – Article 12(3) to (6) RPBA".
Art. 12(3) and (5) RPBA play a role for both the admissibility of an appeal (see chapter V.A.2.6.3h)) and the admittance into appeal proceedings of incomplete or unsubstantiated requests, facts, objections, arguments or evidence (see the decisions summarised in this chapter V.A.4.3.5). Case law on the admittance aspect is included in this chapter V.A.4., although the "complete case" requirement applies not only to new submissions on appeal, but also to submissions on which the contested decision is based.
Under Art. 13(1) RPBA, the boards have discretion whether to admit amendments to a party's appeal case after it has filed its statement of grounds of appeal or reply. The criteria for exercising this discretion are similar to those applied under Art. 13(1) RPBA 2007 and codify the case law on that earlier provision (see e.g. T 634/16, T 700/15). The case law on Art. 13(1) RPBA is reported in chapter V.A.4.4. "Second level of the convergent approach – submissions made after filing of grounds of appeal or reply – Article 13(1) RPBA".
Article 13(2) RPBA (as amended in 2023 and entered into force on 1 January 2024) provides that amendments made to a party's case at an advanced stage of the proceedings (that is, after expiry of a period specified by the board in a communication under R. 100(2) EPC or after notification of a communication under Art. 15(1) RPBA) are generally to be disregarded unless there are exceptional circumstances which have been justified with cogent reasons by the party concerned. Under the previous version of Art. 13(2) RPBA the third level of the convergent approach was triggered by the notification of the summons to oral proceedings. The case law on both versions is reported in chapter V.A.4.5. "Third level of the convergent approach – submissions filed after notification of the Art. 15(1) RPBA communication or after expiry of period specified in R. 100(2) EPC communication – Article 13(2) RPBA".
The provisions mentioned above implement the "convergent approach", whereby the possibilities for parties to amend their case become increasingly limited as the appeal proceedings progress (see e.g. T 1370/15, T 2778/17). Parties must identify and justify any amendments to their case and state why they were not submitted at an earlier stage in the proceedings. Where their various individual requirements are met, the provisions are cumulatively applicable. See chapter V.A.4.1.2 "Primary object of appeal proceedings and the convergent approach to amendments made to party's case" below.