1.3.5 Not a court or tribunal of an EU Member State

In case T 276/99, the board noted that referrals to the Court of Justice of the European Communities (CJEC; Court of Justice of the European Union – CJEU since 1 December 2009) were governed by the requirements of Art. 234 of the EC Treaty (Art. 267 of the Treaty on the Functioning of the EU (TFEU) since 1 December 2009. The board pointed out that, prima facie, as the EPO Boards of Appeal were not a court or tribunal of an EU Member State, they did not have the status to refer a question to the CJEC.

In G 2/06 (OJ 2009, 306) the appellant had requested a referral of questions to the CJEC on the argument that, since R. 28(c) EPC repeats the wording of Art. 6(2)(c) of Directive 98/44/EC (Biotech Directive), the Enlarged Board in interpreting R. 28(c) EPC was interpreting EU law and, as a court of a contracting state, was obliged to make a referral to the CJEC. The request was rejected as inadmissible. The Enlarged Board made it clear that neither the EPC nor the Implementing Regulations thereto contain any provision for a referral by any instance of the EPO of questions of law to the CJEC. The Boards of Appeal are a creation of the EPC, and their powers are limited to those given in the EPC. Art. 234 of the EC Treaty (Art. 267 TFEU since 1 December 2009)gives the CJEC jurisdiction to give preliminary rulings concerning the interpretation of acts of the institutions of the European Community, such as the Directive, but in the view of the Enlarged Board does not appear to provide any basis for a board of appeal of the EPO to request the CJEC to give a ruling on any questions before a board of appeal. Art. 234 EC Treaty (Art. 267 TFEU since 1 December 2009) requires the question to be raised in a case pending before a court or tribunal of an EU member state. The Enlarged Board pointed out that, although the EPO's Boards of Appeal have been recognised as courts or tribunals, they are not courts or tribunals of an EU member state, but of an international organisation whose contracting states do not all belong to the EU. The seat of the EPO Boards of Appeal in an EU member state, Germany, does nothing to alter their status as part of an international organisation with jurisdiction conferred under the EPC. The Boards of Appeal are not and have never been treated as courts or tribunals of their host country.

In R 1/10, the Enlarged Board stated that a CJEU finding that the Boards of Appeal lacked the independence required of a judicial body adhering to the rule of law would not be binding on the boards. This is because the EPC is not part of EU legislation but, together with the European Patent Organisation, is a subject of international law which is autonomous and inherently independent of the EU and whose members do indeed include all EU Member States but also non-EU states.