4.3.7 Submissions that should have been submitted or which were no longer maintained at first instance – Article 12(6), second sentence, RPBA
Art. 12(6), second sentence, RPBA implies that the submissions in question had not been submitted in first-instance. The test of Art. 12(6), second sentence, RPBA is therefore often applied in the framework of the exercise of discretion under Art. 12(4) RPBA. See e.g. J 12/18, T 1081/20, T 3240/19. Other decisions address this question without reference to Art. 12(4) RPBA. On the concept of amendment under Art. 12(2), (4) RPBA, see above chapter V.A.4.2.2. In T 141/20, the board deemed Art. 12(6) RPBA to be lex specialis in relation to Art. 12(4) RPBA.
Art. 12(6), second sentence, RPBA (just as Art. 12(4) RPBA 2007 before) expresses and codifies the principle that each party should submit all facts, evidence, arguments and requests that appear relevant as early as possible so as to ensure a fair, speedy and efficient procedure (T 101/17, citing T 162/09 and T 1848/12; on the case law under Art. 12(4) RPBA 2007 and earlier case law, see CLB, 10th edn. 2022, V.A.5.1.2, V.A.5.11).
Reintroducing subject-matter the examination of which was deliberately foregone in the first-instance proceedings is at odds with the purpose of the appeal proceedings as a review instance, as stipulated in Art. 12(2) RPBA. Generally, therefore, any such requests are not to be admitted under Art. 12(6), second sentence, first half-sentence, RPBA (T 1456/20).
As with Art. 12(6), first sentence, RPBA (see chapter V.A.4.3.6h)), the boards, after having established that the relevant requests, facts, objections or evidence should have been submitted in the first-instance proceedings, examine in a second step whether the circumstances of the appeal case justify admittance. See in this chapter V.A.4.3.7r).