R 0008/13 du 20.03.2015

Lack of impartiality based on objective suspicion under Article 24(3) and 6 ECHR ascertained facts [no] Existing safeguard Article 23 EPC [yes]
Exclusion of the chairman objected [no]
ECHR: Campbell and Fell v.the United Kingdom (No 7819/77, 7878/77); Cooper v. The United Kingdom (No 48843/99); Micallef v. Malta (No 17056/06); de Cubber v. Belgium (No 9186/80); Wettstein v. Switzerland (No 33958); Kleyn and others v. the Netherlands (No 39343/98, 39651/98, 43147/98, 46664/99; Pabla Ky v. Finland (No 47221/99); Levages Prestations Services v. France (No 21920/93); Steck-Risch and others v. Liechtenstein (63151/00); Savino and others v. Italie (No 17214/05, 20329/05, 42113/04); Kyprianou v. Cyprus (No 73757/01); Beaumartin v. France (No 15287/89) ; Sramek v. Austria (No 8790/79); Procola v. Luxembourg (No 14570/89); Rolf Gustafson v. Sweden (No 23196/94)
G 0003/08 of 16 October 2009 and G 0003/08 of 12 May 2010

The potential conflicts intrinsic to the dual function of vice-president of the EPO Directorate-General 3 (VP3) and chairman of the Enlarged Board were perceived even prior to R 19/12 as is shown by the EPC's legislative history. They have been circumvented merely by means of specific organisational measures (points 6.2 and 6.3).
If a single individual in the form of VP3 has the dual role of safeguarding judicial independence and at the same time of exercising management authority, this can only be interpreted to mean - as shown by the EPC's legislative history and the application of the relevant provisions - that the requirement to safeguard independence must be taken into account when exercising such management authority. In other words, Article 23 EPC limits the President's power to give instructions under Article 10(2)(f) EPC to the Enlarged Board's chairman in his capacity of VP3.
Article 23 EPC can only be seen as the means to counter any influence the EPO executive might seek to exert on VP3 under Article 10(2)(f) and (3) EPC (point 6.5)
In the circumstances of the present case and in view of VP3's restricted duties, there are no ascertainable facts giving objective cause to believe that Article 23 EPC can no longer fulfil its safeguard role vis-à-vis Article 10(2)(f) and (3) EPC when acting in his judicial function (point 7.2).
Whether the current organisational structure remains the most appropriate one is for EPO legislator to decide (points 3.5 and 7.3).