2.3.2 Referral under Article 21 RPBA

According to Art. 21 RPBA, if a board considers it necessary to deviate from an interpretation or explanation of the EPC contained in an earlier decision or opinion of the Enlarged Board, it shall refer the question to the Enlarged Board. For procedural aspects see also in this chapter V.B.2.5.1.

In G 2/24 (OJ 2026, A24) the Enlarged Board explained that although Art. 21 RPBA granted the boards of appeal ample discretion for referral, it did not find the prospect of a board referring a question of law solely because it disagreed with an earlier G-decision or opinion to be particularly appealing in terms of safeguarding consistent case law. In view of the legislative intent of Art. 112 EPC to ensure a uniform application of the law, a board of appeal was expected to substantiate why it considered the earlier ruling on the interpretation of the law to have been superseded by a subsequent change in the law or for potential gaps in its reasoning. Another motivation for referring a question that had previously been answered by the Enlarged Board could be that a board is confronted with a new factual or procedural situation that distinguishes it substantially from the situation underlying the earlier referral.