6.2.3 Suspected partiality of the Chairman of the Enlarged Board of Appeal who at the same time was Vice-President of Directorate-General 3 (VP3)

Previously, the boards of appeal, together with their administrative services, were integrated into the organisational structure of the European Patent Office as a Directorate-General (DG3) directed by a Vice-President (VP3). The case law of the boards of appeal outlined below in this chapter is relevant to this previous structure.

However, following a structural reform in 2016 (see Annual Report of the EPO 2016), the Boards of Appeal are now organised as a separate unit directed by the President of the Boards of Appeal (see Supplementary Publication 1, OJ 2017). The President of the Boards of Appeal also serves as the Chairman of the Enlarged Board of Appeal. For more information, see chapter VII.1.1. "The judiciary of the European Patent Organisation".

In R 19/12 of 25 April 2014 the petitioner objected to the chairman of the Enlarged Board of Appeal on account of his involvement, past and present, in the administration of the EPO. The Enlarged Board stressed that the rules on exclusion and objection were designed to maintain the necessary distance for the judge from the issues at stake and the parties thereto and also from the body whose decision was being reviewed. Such distance was especially important where it concerned the distance of the court and its judges from the administrative authority whose decisions were reviewed. The fact that a judge had previously held high office in an administrative hierarchy was not a sufficient ground that on its own justified a suspicion of partiality. However, the judge concerned had been appointed simultaneously as Vice-President DG 3 (VP3) and chairman of the Enlarged Board and remained, as VP3, part of the Office's administrative hierarchy. Under Art. 10(2)(f) EPC he remained subject to the supervisory authority of the President as his immediate superior. Under Art. 10(3) EPC the President was assisted by the vice-presidents, this being institutionalised in the form of the Management Committee (MAC) and the General Advisory Committee (GAC). VP3 might therefore be faced with conflicting demands. On the one hand, as a vice-president subordinate to the President he had to implement the latter's management and performance objectives, even in relation to the boards of appeal; on the other, as part of his managerial responsibility for the boards he had to ensure that their judicial independence was not prejudiced by measures taken by the President and his administrative hierarchy. If the Enlarged Board approved a review of first-instance decisions which was restrictive in terms of the right to be heard, the examining and opposition divisions would have more latitude to shape proceedings in accordance with prescribed efficiency objectives. There was good reason for a reasonable, objective and informed person to fear that the chairman might not be capable of exercising his judicial function uninfluenced by instructions given to him in his capacity as VP3. The Enlarged Board thus considered the partiality objection to its chairman to be well-founded.

In R 2/14 of 17 February 2015 the petitioner also requested that the chairman of the Enlarged Board be replaced due to partiality. The chairman stated that, following interlocutory decision R 19/12 of 25 April 2014, his managerial activities in the senior management committees of the Office, i.e. the MAC and the GAC, had been discontinued. The Enlarged Board thus considered that the factual circumstances clearly differed from those on which interlocutory decision R 19/12 had been based. What remained was that the chairman, in his function as VP3, continued to be subject to the provisions of Art. 10(2)(f) and (3) EPC, according to which the vice-presidents assist the President and are subject to his supervisory authority. These provisions could come into conflict with Art. 23(3) EPC, according to which the chairman, in his judicial function, is not bound by any instructions. Applying the concept of "normative concordance", the Enlarged Board of Appeal stated that the President's power to give instructions to the chairman in his function as VP3 pursuant to Art. 10(2)(f) and (3) EPC was limited by virtue of Art. 23(3) EPC. The chairman was accordingly relieved of any obligation (i) to obey any presidential instructions, (ii) to observe other administrative/executive directions or (iii) to assist the President pursuant to Art. 10(3) EPC, if and to the extent that any such instruction, direction or assistance might affect him and/or any other member of the boards of appeal in performing their judicial duties. When confronted with an unresolvable conflict between a managerial and a judicial obligation, his judicial duties under Art. 23(3) and 24 EPC and under Art. 6(1) ECHR prevailed. The Enlarged Board of Appeal concluded that a reasonable, objective and informed person would, after the implementation of the institutional measures adopted following interlocutory decision R 19/12, no longer have good reason to suspect the chairman of partiality.

In R 8/13 of 20 March 2015 the Enlarged Board did not accept the petitioners' view that R 19/12 was generally binding for all petition proceedings that included VP3 as chairman of the Enlarged Board. The situation of VP3 had changed from the one prevailing under R 19/12 as a result of the termination of his active involvement in the MAC and the GAC/GCC. What remained was the argument that the dual function of VP3 and Chairman of the Enlarged Board within the EPO judiciary body was at odds with the principle of separation of powers. The Enlarged Board noted that the mere fact that a judicial organisation included a dual function which did not happen to coincide with a specific conceptual model of the separation of powers did not mean that it necessarily infringed Art. 6(1) ECHR. Thus, the Enlarged Board held that the dual function did not in itself give rise to suspicion of partiality and could not justify excluding the chairman objected to. The Enlarged Board concluded that, in the circumstances of the present case and in view of VP3's restricted duties, there were no ascertainable facts giving objective cause to believe that Art. 23 EPC could no longer fulfil its safeguard role vis-à-vis Art. 10(2)(f) and (3) EPC. As to whether the organisational arrangement remained the most appropriate after R 19/12, the Enlarged Board emphasised that only the EPO legislator had the power to make amendments to the structure of the Boards of Appeal under the EPC.

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