4.2.1 Discretion under Articles 12(4) and 13(1) and (2) RPBA applies only to amendments

The provisions of Art. 12(4) and 13(1) and (2) RPBA only apply to cases in which a party has amended its case (i.e. its case presented at first instance as far as Art. 12(4) RPBA is concerned or its appeal case as far as Art. 13(1) and (2) RPBA are concerned). Thus, as explained with regard to Art. 13(2) RPBA e.g. in T 247/20, the test to be applied is two-fold. The first question is whether the submission objected to is an amendment to a party's appeal case. If that question is answered in the negative, then the board has no discretion not to admit the submission. If, however, that question is answered in the affirmative, then the board needs to decide whether to take the submission into account (confirmed in e.g. J 14/19, T 2920/18, T 2988/18, T 528/19, T 1361/19, T 2295/19, T 907/20).

The point of reference for assessing whether a case had been amended within the meaning of Art. 13(1) or (2) RPBA is the statement of grounds of appeal or the reply, whereas the point of reference for assessing whether any part of the appeal case has to be regarded as an amendment within the meaning of Art. 12(4) RPBA is the decision under appeal (see J 14/19) and any part of the appeal case for which the party demonstrates that it has been admissibly raised and maintained in the first-instance proceedings.

According to T 524/18 it is irrelevant whether the other party has requested non-admittance of amendments and if so when, as the board has to decide on admittance on the basis of the provisions of the RPBA, and such decision is not dependent on any request from the parties. On the related question whether procedural requests (including those for non-admittance) are amendments within the meaning of Art. 12(4) and 13 RPBA, see however chapter V.A.4.2.3j).