a) Principles 

The primary object of the appeal proceedings is to review the decision under appeal in a judicial manner (Art. 12(2) RPBA). In view of this primary object, Art. 12(2) RPBA provides that a party's appeal case has to be directed to the facts, objections, evidence and requests on which the decision under appeal was based.

At the first level of the convergent approach, the rule according to Art. 12(4), first sentence, RPBA is that any part of a party's appeal case

– that does not meet the above-mentioned requirements of Art. 12(2) RPBA, and

– for which the party has not demonstrated that this part was admissibly raised and maintained in the proceedings leading to the decision under appeal

is to be regarded as an amendment to the party's case.

Thus, an amendment to a party's case under Art. 12(2), (4) RPBA is a submission which is not directed to the requests, facts, objections, arguments and evidence on which the decision under appeal was based – in other words which goes beyond the framework established therein (T 19/20, see also T 247/20, T 2988/18 and T 907/20) – and for which it has not been demonstrated that it was admissibly raised and maintained in the proceedings leading to the decision under appeal. Any such amendment may be admitted only at the discretion of the board (Art. 12(4), second sentence, RPBA). See chapter V.A.4.3.4.

The appeal proceedings, which are largely determined by the factual and legal scope of the proceedings that led to the appealed decision, are not intended as an opportunity to bring forward an entirely fresh case. This means that an appellant is not at liberty to shift its case as it pleases, as this would compel the board either to give a first ruling on critical issues or to remit the case to the department of first instance. Conceding such freedom to an appellant would run counter to orderly and efficient appeal proceedings, which are primarily directed to reviewing the correctness of the decision under appeal according to Art. 12(2) RPBA (T 919/22; see also T 101/17 on the ratio legis of the closely related Art. 12(6), second sentence, RPBA).

In relation to the requirements of Art. 12(2) RPBA, the boards have repeatedly held that any requests not decided on in the contested decision because they were ranked lower than the request that was deemed allowable do not form part of the contested decision (see chapter V.A.4.2.2b) (iv) below).

The case law has repeatedly emphasised that, as a rule, the party making the submission bears the burden of showing that it was "admissibly raised and maintained" at first instance (see e.g. T 246/22, T 3024/19 and T 81/20; see also chapter V.A.4.2.2c) (ii) "Party's duty to demonstrate").

Different approaches have been taken regarding how to examine whether submissions were "admissibly raised and maintained". Specifically, the boards in T 1913/21, T 446/22 and T 364/20 based their approach on whether the department of first instance would have had to admit the submission had a decision on admittance been required, whereas the boards in other decisions (in particular T 1800/20, T 246/22 and T 1659/22) formulated certain requirements independent of those governing the first-instance proceedings (see chapter V.A.4.2.2c) (i) below).