g) Whether the submission should have been filed in first-instance proceedings – Article 12(6), second sentence, RPBA 

In many decisions, the boards, when exercising their discretion under Art. 12(4), second sentence, RPBA, have relied, in addition to the criteria mentioned in that provision, on whether requests, facts, objections and evidence should have already been filed in the proceedings that led to the contested decision. In some cases, the boards have made reference to Art. 12(6) RPBA (T 291/21, T 3240/19, T 886/21) whereas in others they have made no such reference (T 121/20, T 864/20, T 1288/21). On occasion, they have also used slightly different wording, e.g. in T 218/20, T 121/20, T 3272/19 (first opportunity to respond/to file amendments/documents) and T 1085/20 (timely reaction).

These decisions are described in chapter V.A.4.3.7 together with the decisions in relation to Art. 12(6) RPBA.