In T 276/99 the board noted that under the EC Treaty referrals to the Court of Justice of the European Communities (now Court of Justice of the European Union) were governed by Art. 234 ECT (now Art. 267 TFEU). The board pointed out that, prima facie, as the EPO boards of appeal were not a court or tribunal of an EU Member State, they did not have the status to refer a question to the Court of Justice of the European Communities.
The German Constitutional Court’s decision of 4 April 2001 (2 BvR 2368/99, published in GRUR 2001, 728 - 730) referred to the delegation of powers to the EPO directly by the EPC contracting states who were also members of the EU, and not to any delegation from the EU itself. Since the European Patent Organisation was not part of the European Union institutions, and since the delegation of powers by the non-EU contracting states was to the EPO but not to the European Union or its institutions, there was no obvious basis for referring a question to the Court of Justice of the European Communities from an EPO board of appeal.
In G 2/06 (OJ 2009, 306) the appellant had requested a referral of questions to the Court of Justice of the European Union (CJEU) on the argument that, since R. 28(c) EPC repeats the wording of Art. 6(2)(c) of Directive 98/44/EC, the Enlarged Board of Appeal in interpreting R. 28(c) EPC was interpreting European Union law. The request was rejected as inadmissible. The Enlarged Board made it clear that neither the EPC nor the Implementing Regulations thereto contain any provision for a referral by any instance of the EPO of questions of law to the CJEU. The boards of appeal are a creation of the EPC, and their powers are limited to those given in the EPC. Art. 234 of the EC Treaty gives the CJEU jurisdiction to give preliminary rulings concerning the interpretation of acts of the institutions of the European Community, such as the Directive, but does not appear to provide any basis for a board of appeal of the EPO to request the CJEU to give a ruling on any questions before a board of appeal. Art. 234 ECT requires the question to be raised in a case pending before a court or tribunal of an EU member state. Whereas EPO boards of appeal have been recognised as courts or tribunals, they are not courts or tribunals of an EU member state but of an international organization whose contracting states are not all members of the EU. The seat of the boards of appeal in an EU member state, Germany, could not alter their status as part of an international organisation with jurisdiction conferred under the EPC. The boards of appeal are not and have never been treated as courts or tribunals of their host country.
In R 1/10, the Enlarged Board held that not even a CJEU finding that the boards of appeal lacked the independence required of a judicial body adhering to the rule of law (see opinion of the Advocate-General of 2 July 2010 and CJEU opinion of 8 March 2011 in Case 1/09) would be binding on the boards. The European Patent Organisation was an autonomous subject of international law and inherently independent of the EU.