4.1.2 ‍‍Rules of Procedure of the Boards of Appeal (RPBA)

The RPBA contain precise provisions on amendments to parties' cases. They explicitly leave their admission – be they facts, evidence or requests – to the board's discretion. A substantial revision of the RPBA is planned for 2019.

The RPBA give general directions on how the boards of appeal should exercise their power to admit or disregard material filed at different stages of the appeal proceedings. Account must be taken of Art. 12 and 13 RPBA 2007 in particular.

Art. 12 and Art. 13 RPBA 2007 (formerly Art. 10a and Art. 10b RPBA 2003) are essentially aimed at concentrating the parties' submissions at an early stage of the proceedings, to ensure that the case is as complete as possible when it is processed. In particular, amendments which would lead to an adjournment of the oral proceedings should not be admitted. Their purpose is therefore to expedite the proceedings and implement the principle of fairness towards the other party or parties. It follows from this that parties to appeal proceedings are subject to certain restrictions as far as their procedural conduct is concerned. For example, it is a matter for each party himself to submit all facts, evidence, arguments and requests relevant for the enforcement or defence of his rights as early and completely as possible (T 162/09). The RPBA provisions on amendments to a party's case essentially codify the boards' comprehensive case law (on this point, see T 87/05, R 5/11).

Under Art. 12(2) RPBA 2007, the statement of grounds of appeal and the reply must contain a party's complete case and should, inter alia, specify expressly all the facts, arguments and evidence relied on.

Under Art. 13(1) RPBA 2007, the boards have discretion to admit and consider any amendment to a party's case after it has filed its grounds of appeal or reply. This discretion must be exercised in view of, inter alia, the complexity of the new subject-matter, the current state of the proceedings and the need for procedural economy. Art. 13(3) RPBA 2007 adds that amendments sought to be made after oral proceedings have been arranged may not be admitted "if they raise issues which the Board or the other party or parties cannot reasonably be expected to deal with without adjournment of the oral proceedings".

Art. 13(1) RPBA 2007 merely lists examples of factors to be considered by the board in exercising its discretion and not an exhaustive set of criteria which must be cumulatively met, such that other considerations and well-established criteria relevant to the admissibility issue can also be taken into account (R 16/09, R 1/13, T 253/10, T 484/11). As a rule, the boards' decisions should be based on the issues in dispute at first instance, which does not rule out the admission of new submissions, but does subject it to the fulfilment of certain criteria, given that no entirely "fresh case" should be created on appeal (on this point, see also T 356/08, T 1685/07, T 162/09).

Art. 12(4) RPBA 2007 expressly refers to the boards' power to exclude requests which could have been filed or were not admitted in the first-instance proceedings. Art. 12(4) RPBA 2007 instructs us that consideration is unlikely to be given to new submissions that should have been presented in the first-instance proceedings.

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