4.5.4 Admittance of new requests
In the ex parte proceedings T 1790/17 the board explained that, although its discretion under Art. 13(2) RPBA was rather limited, it still had to consider and balance all relevant circumstances when using its discretion. These circumstances included the development of the case and the purpose of oral proceedings. In the board's view, the purpose of oral proceedings was, for the appellant, to better explain its case and, for the board, to understand and clarify points which perhaps had not been sufficiently clear up to that point. The board underlined that this was particularly relevant in ex parte cases. If amendments resulting from such discussions were not possible, oral proceedings would be pointless. In the board's view, the new auxiliary request had been filed as a direct reaction to the exchange of arguments in the oral proceedings and addressed the board's objections and concerns. Furthermore, the request overcame the grounds on which the appealed decision was based. It was therefore admitted into the proceedings.
However, in T 3258/19 the board took the view with respect to oral proceedings, that the right to be heard related only to the opportunity for an appellant in an ex parte case to orally present arguments relating to the requests already made in the written part of the underlying proceedings. If a board, moreover, has communicated a preliminary opinion based on the written submissions on file, the purpose of the oral proceedings for the party concerned would mainly be to explain why this opinion was wrong on the basis of the submissions and evidence already on file (citing T 1213/19 date: 2022-09-23).
See also T 1870/15, summarised in chapter V.A.4.5.4g) (iii), in which a request filed in response to a mere elucidation at the oral proceedings of the assessment in the preliminary opinion was not admitted.
On the purpose of oral proceedings, see also chapter III.C.2.