2. Position juridique de l'intervenant

In G 2/24 the Enlarged Board ("EBA") answered the referred questions as follows: "After withdrawal of all appeals, appeal proceedings may not be continued with a third party who intervened during the appeal proceedings in accordance with Article 105 EPC.

The intervening third party does not acquire an appellant status corresponding to the status of a person entitled to appeal within the meaning of Article 107, first sentence, EPC..

The EBA found the referral admissible. It held that the referral concerned an aspect of fundamental importance and the final decision on the appeal hinged on the answer to the referred questions. It explained that while Art. 21 RPBA allows for the further development of the case law and grants boards ample discretion for referral, in view of the legislative intent of Art. 112 EPC to ensure a uniform application of the law, a board was expected to substantiate why it considers an earlier ruling to have been superseded by a subsequent change in the law, there to be potential gaps in its reasoning or the existence of a new factual or procedural situation. The EBA took note of the referring board’s criticism of G 3/04.

The EBA concluded that the findings of G 3/04 continue to apply. None of the provisions relevant to the referral (i.e. Art. 99(1), 105 and 107 EPC) had been amended in a substantive manner after G 3/04 had been issued.

The EBA reaffirmed that appeal proceedings are of a judicial nature and the appeal is designed as a remedy on facts and law for parties to proceedings before the administrative departments of the EPO with the aim of eliminating an "adverse effect" of the impugned decision. The scope of the appeal proceedings is primarily determined by the decision under appeal, the appellant’s requests submitted with the notice of appeal and the statement of grounds of appeal, and, in inter partes proceedings, the submissions of the other party or parties in reply to the appellant’s statement of grounds of appeal. The appeal is not an ex officio procedure but depends on the appellant to initiate, determine the scope of, and conclude it within that party’s power of disposal, in accordance with the principle of party disposition.

The EBA further held that a party entitled to appeal within the meaning of Art. 107, first sentence, EPC is only the person who formally participated in the proceedings before the administrative department that issued the impugned decision, unless a third party’s entitlement to participate in those proceedings had been ignored due to procedural error or incorrect application of law. An adverse effect within the meaning of this provision only exists if a decision falls short of the request of a party to the proceedings or deviates from it without their consent. Any other "negative " or "disadvantageous " impact or effect on a third party does not fulfil the legal threshold.

On interventions by third parties, the EBA stated that the exceptional nature of this legal remedy inherently precludes an extensive interpretation and application thereof. An intervener at appeal cannot procedurally benefit from any status in the preceding administrative proceedings and becomes a party as of right. Intervention at appeal needs to fit into the legal and procedural framework of the boards of appeal as the first and final judicial instance in proceedings under the EPC. The principle of party disposition, the binding nature of the parties’ requests and the prohibitions of ruling ultra petita and reformatio in peius limit the option for procedural action of all involved in appeal proceedings, including interveners. Parties to appeal proceedings as of right do not have a legal status independent of the appeal. Awarding an intervener such status would require an explicit legal provision in the EPC.

Therefore, if the sole or all appeals are withdrawn, the proceedings end with regard to all substantive issues for all parties involved and cannot be continued with an intervener at the appeal stage or any other non-appealing party.