g) Whether assessment of "exceptional circumstances" and exercise of discretion to admit an amendment is a two-step evaluation 

In some decisions, the boards have assessed admission under Art. 13(2) RPBA in two steps. First, they have assessed whether it has been shown that there are exceptional circumstances justifying the late submission or whether any such circumstances are apparent. And only if that is the case have they gone on in a second step to apply the criteria for exercising discretion laid down in Art. 13(1), fourth sentence, and Art. 12(4), fifth sentence, RPBA and, if relevant, taken account of other considerations (see, for example, T 989/15, T 709/16 and T 924/22). In T 709/16 it was emphasised that, if the board accepted the party's argument that the circumstances were exceptional, it was still within the board's discretion whether to admit the request into the appeal proceedings. In T 2486/16 the board explained that the criteria of Art. 13(1) RPBA could supplement, but not supplant, the separate requirements of Art. 13(2) RPBA. In T 1558/22 the board held that there was no exceptional circumstance beyond the respondent's sphere of responsibility that might have justified the late filing of auxiliary request 4a. That made it irrelevant whether other criteria for exercising discretion laid down in Art. 12(4) and 13(1) RPBA (e.g. whether the amendment was uncomplicated) – which could be considered in addition to the strict requirements of Art. 13(2) RPBA – had been met.

In other decisions, all aspects, including in particular the criteria in Art. 13(1) RPBA about the exercise of discretion, have been used to assess whether "exceptional circumstances" exist. In T 1773/22, for instance, the board explained that assessing whether there are exceptional circumstances was not separate from exercising discretion to admit an amendment (confirmed in T 152/22). The board noted that not separating them was consistent with the view that exceptional circumstances could be of a legal nature (citing T 2295/19, T 339/19, T 1800/21). Further examples of this approach can be found in, for example, T 713/14, T 1904/16, T 988/17, T 1055/17, T 1790/17, T 1227/19, T 916/21 and T 172/22.