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EPO – The EPO’s power to appoint oral proceedings in the Hague not subject to review by the EBA

11 Apr 2016

EPO, R 13/14, EBA, decision of 15 January 2016 – Borealis Technology OY, not to be published in OJ EPO
The EPC 2000 implemented the BEST (Bringing Search and Examination Together) project. Since then the departments of first instance of the EPO rendering decisions are no longer located only in Munich but also in the Hague and Berlin. Parties to the proceedings preferring to have oral proceedings held in Munich have repeatedly challenged the EPO’s power to appoint oral proceedings in the Hague or in Berlin.

In the present case, the applicant had filed an appeal against the decision refusing the application. In a first decision (T 933/10 of 25 January 2011), the Technical Board of Appeal (TBA) allowed the appeal on the grounds that the refusal to accede to the request of the applicant to hold oral proceedings in Munich rather than in the Hague was not reasoned. The Examining Division refused the application a second time, again refusing the request to hold oral proceedings in the Hague stating that the oral proceedings were to be held at the location of the Examining Division.

In its second decision (T1142/12 of 8 April 2014), the Technical Board of Appeal dismissed the appeal. In respect of the place of the oral proceedings, the Board stated that the practical aspects of the organisation of oral proceedings, including its location were a matter relating to the management of the EPO, which lies under the power of the President of the EPO as provided by Art. 10(2) EPC.

The petition for review was based on the grounds that a fundamental violation of the right to be heard 113 EPC had occurred and that the board had decided on the appeal without deciding on the request to appoint oral proceedings in Munich. The EBA disagreed. When reading the reasoning of the decision under review in context, it could not be denied that the TBA (a) had heard the petitioner’s arguments on the relevant issue and (b) had decided on the requests relevant for the decision. In fact the TBA based its reasoning on the crucial reason announced in its communication, i.e. the general principle that the organization of oral proceedings lies within the competence of the President of the EPO and could not be reviewed by the Boards of Appeal pursuant to the principle of the separation of powers.

The appointment of oral proceedings in the Hague or Berlin appears as the logical consequence of the legislator’s decision that the departments of the EPO rendering decisions are also located at these places. However, the EBA’s decision may raise a more general question. Whereas it may be accepted that the administration of the EPO is the task of its president and that it is not up to the departments of the EPO to interfere, it may nevertheless happen that administrative decisions prejudice the rights of the parties to the proceedings. National legal systems give access to the courts in respect of all acts of public administration which may be prejudicial to the citzen’s rights. If such a situation arose in proceedings before the EPO, the Boards of Appeal should have an implied competence of review. Otherwise, the protection of the parties’ rights would be defective.

A copy of decision R 13/14 can be found here.