1.3.1 Courts of law under the EPC

In G 1/86 (OJ 1987, 447) the Enlarged Board held that "those EPC provisions governing the independence of members of the Boards of Appeal (Art. 23 EPC), their competence and method of work and the nature of the decisions they take, indicate that the Boards act as courts with the task of ensuring that the law is respected when the EPC is applied. (...) Moreover, there is no appeal against decisions of the Boards of Appeal. In the Member States of the European Patent Organisation decisions by departments of last instance, i.e. those terminating proceedings concerned with checking the legality of administrative actions and the protection of the rights of the individual, can only be taken by courts of law."

Article 112a EPC, which has now been introduced at the suggestion of the Enlarged Board (G 1/97; OJ 2000, 322), is intended to provide limited judicial review of decisions of the boards of appeal and not to introduce a second judicial instance (R 5/16, point 7 of the Reasons) (see chapter V.B.3. "Petition for review under Article 112a EPC").

In T 1400/11 the board stated that according to the Enlarged Board decisions in G 7/91 and G 8/91 (OJ 1993, 356 and 346, point 7 of the Reasons, and correction to G 8/91, OJ 1993, 478), G 9/91 and G 10/91 (OJ 1993, 408, 420, point 18 of the Reasons) and G 1/99 (OJ 2001, 381, point 6.6 of the Reasons), the appeal procedure is to be considered as a judicial procedure proper to an administrative court. See also chapter V.A.1. "Legal character of appeal procedure".

In G 2301/15 the Enlarged Board stated that the board members' function as judges was generally recognised. In decision G 2301/16, concerning the same case, the Enlarged Board saw the Office President's letter of 10 June 2016 as indirectly exerted pressure that undermined the principle of judicial independence enshrined in Art. 23(3) EPC. The Enlarged Board's judicial independence in deciding on this case had been fundamentally denied.