7.7.1 Legal basis

According to Art. 11 RPBA 2007 a board is to remit a case to the department of first instance if fundamental deficiencies are apparent in the first-instance proceedings, unless special reasons present themselves for doing otherwise. In other words, the rule is that a case is to be remitted if a fundamental procedural deficiency is established, but a board may exceptionally refrain from doing so if there are special reasons not to. It is for the board to assess whether there are actually any reasons that can be classed and accepted as "special" and so whether it should therefore exercise its discretion to deal with the case itself instead of remitting it (T 1805/14).

Accordingly, the board has discretion whether to remit the case even in the presence of such fundamental deficiencies if there are special reasons for doing so. The boards may take into account the state of the proceedings, the special circumstances that led to the procedural violations and the interests of the parties and the public to reach a final decision on the one hand and the interest of the opponents to have the case thoroughly discussed in two instances on the other hand (T 1647/15). The violation of fundamental principles such as the right to be heard, the right to have a reasoned decision or the right to oral proceedings is considered as a fundamental deficiency of the first-instance proceedings which justifies the reimbursement of the appeal fee and normally a remittal to the first instance (T 996/09).

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