R 8/13 Partiality settled for the time being
Background
In an interlocutory decision of 25 April 2014 in the Petition for Review case R19/12, the Chairman of the Enlarged Board of Appeal was replaced having been accused of potential partiality in view of his role as Vice President of the EPO and as such subject to the supervisory authority of the President of the EPO under Article 10(2)(f) EPC (R19/12 r.14.1 in conjunction with r.16).
Reasons for the Decision
1. The admissibility of the objection as insufficiently substantiated […]
2. The principles to be applied
2.1 In support of their objection of suspected partiality under Article 24(3) EPC, the petitioners refer to R 19/12, and therefore rely considerably on the requirements of the European Convention on Human Rights (hereinafter "ECHR"), especially its Article 6(1), which apply to the present case.
2.2 It is true that the European Commission of Human Rights stated in Lenzing v. Germany, 9 September 1998 No. 39025/97 that as the EPO was not a party to the ECHR the Commission had no competence ratione materiae to examine, under Article 6 ECHR, the proceedings it conducted or the decisions it took. However, it is undisputed and established case law of the Enlarged Board of Appeal, that the EPC, which was signed by contracting parties to the ECHR, must be applied in a way which supports the fundamental principles of Article 6(1) ECHR (G 01/05, OJ EPO 2007, 362, point 22 of the Reasons; G 02/08 above cited, point 3.3 of the Reasons).
2.3 Furthermore the Enlarged Board falls within the definition laid down by the European Court of Human Rights (hereinafter "ECtHR") in Campbell and Fell v. the United Kingdom (28 June 1984, No 7819/77, paragraph 76): "the word "Tribunal" in Article 6 paragraph 1 is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country". A tribunal may also be set up to deal with specific subject-matter which can be appropriately administered outside the ordinary court system. What is important, to ensure compliance with Article 6(1) ECHR, are the guarantees, both substantive and procedural, which are in place (ECtHR, Rolf Gustafson v. Sweden, 1 July 1997, No. 23196/94, paragraph 45).
2.4 Determining impartiality within the meaning of Article 24(3) and (4) EPC in the case law developed by the Enlarged Board and the boards of appeal in line with the case law developed by the ECtHR under Article 6(1) ECHR, means applying a subjective test with regard to the personal convictions and behaviour of a particular judge in a given case, and also an objective test to ascertain whether the judge offers sufficient guarantees to exclude any legitimate doubt about his impartiality. In this connection, the standpoint of the person concerned is important without being decisive (ECtHR Cooper v. the United Kingdom, 16 December 2003 No. 48843/99, paragraph 104; Micallef v. Malta, application, 15 October 2009 No. 17056/06 paragraphs 93 to 97; Enlarged Board of Appeal G 01/05 above cited, points 19 ff. of the Reasons; G 02/08 above cited, point 3.3 of the Reasons). This is illustrated by the oft-quoted aphorism that "justice must not only be done but must also be seen to be done" (ECtHR De Cubber v. Belgium, 26 October 1984, No. 9186/80, paragraph 26 (criminal case); Micallef v. Malta (civil case), above cited paragraph 98).
3. The scope of the request based on suspected partiality: legal framework
3.1 In the first place, the Enlarged Board does not accept the petitioners' view that R 19/12 is a general ruling binding on the Enlarged Board in the current case as well as in all petition proceedings that include the chairman objected to on the ground that he is structurally insufficiently independent. Nor does the Enlarged Board agree with the petitioners that its sole choice here is either "following or contradicting R 19/12". That particular ruling, like any judicial decision, was necessarily based on an evaluation of the particular circumstances underlying the case in point. There is no legal basis for taking the findings of one decision and applying them to a different case without also considering the facts and circumstances of the case at issue.
3.2 Furthermore, according to ECtHR case law, when assessing compliance with Article 6(1)ECHR the task is to decide in each individual case whether the relationship, i.e. in the present case, VP3's hierarchical link with the EPO executive and the possible conflict of interests arising from his duality of functions as VP3 and chairman of the Enlarged Board of Appeal, is of such a nature and degree as to indicate a lack of impartiality on the part of the person objected to (Micallef v. Malta above cited, paragraph 97 and 102).
Consequently, the Enlarged Board does not accept the petitioners' submissions, that R 19/12 has definitively established that the public, on an objective basis, can no longer have any confidence in an Enlarged Board chaired by VP3.
3.3 Rather the Enlarged Board will consider the petitioners' arguments based on their interpretation of R 19/12 and the conclusions they draw from that decision - which as shown below boils down to a reliance on its contents - in the light of the established facts underlying the present case.
3.4 That is also the standard approach of the ECtHR, which in Kleyn and Others v. the Netherlands (6 May 2003 No. 39343/98, 39651/98, 43147/98, 46664/99, paragraphs 197 and 198), for instance, in reviewing a tribunal's impartiality expressly took into account the changes made by the state to rectify deficiencies highlighted in a previous similar case (ECtHR Procola v. Luxembourg 28 September 1995, No. 14570/89).3.5 Furthermore, the Enlarged Board has to make a clear distinction between factual circumstances entailing a risk of objective partiality on the part of the chairman objected to and the petitioners' general arguments based on alleged structural flaws of the boards of appeal, combined with the development of the case law on petitions for review and the potential for VP3's dual function to give rise to pressure exerted by the EPO's administration on the case law.
Indeed, this very broad approach (see X (b) above) defining the subject-matter of the debate as encompassing the structure of the EPO judiciary, is aimed, as the petitioners explain, at triggering the convening of a diplomatic conference to enact structural reforms of the EPO's judicial system, which are necessary in the petitioners' view to implement the principle of the separation of powers as already set out in the Sedemund-Treiber report, submitted to the Administrative Council in CA/46/04.
However, this aim goes not only beyond the scope of the pending request but also beyond the function of the Enlarged Board, which - as will be explained in more detail below - is to apply the EPC to the existing facts at hand in line with other binding law such as the ECHR.
3.6 According to the ECtHR, neither Article 6(1) ECHR nor any other provision of the ECHR requires contracting states to comply with any theoretical constitutional concepts regarding the permissible limits of the interaction between separate powers (Kleyn and Others v. the Netherlands, above cited, paragraphs 193 and 198). That means analysing a situation case by case, not ruling in the abstract. The ECtHR's task is to determine whether the contracting states have achieved the result called for by the ECHR, not to indicate the particular means to be utilised; that is mutatis mutandis the Enlarged Board's task in the present case, in the exercise of its judicial function, with respect to the application of the EPC.
3.7 In addition general arguments based on an alleged structural weakness of the EPO's judicial system were not considered in R 19/12 to be a direct reason for suspicion; rather, they were regarded as aggravating the risk linked to VP3's involvement in specific management bodies. Accordingly, the Enlarged Board will follow ECtHR case law to the effect that when assessing compliance with Article 6(1) ECHR the task is not to rule in the abstract on the compatibility with the ECHR of the legal system concerned (i.e. in this case, that of the EPO) (Kleyn and Others v. the Netherlands already above cited, paragraph 198); rather, the examination should be confined to the case at hand (Steck-Risch and Others v. Liechtenstein, 19 May 2005, No. 63151/00 paragraphs 39 and 46) and to a careful scrutiny of its specific circumstances (Wettstein v. Switzerland, 21 March 2001, No. 33958/96, paragraph 41).
3.8 The petitioners also referred to the case (C-146/13) brought by the Kingdom of Spain against the European Parliament and the Council of the European Union. Spain requests that EU Regulation No. 1257/012 implementing enhanced cooperation on the unitary patent be declared void or set aside in its entirety. One of the grounds put forward (paragraph 27 of the conclusions of the Advocate General of 18 November 2014) is that the regulation is in breach of the values of the rule of law because it establishes a set of rules based on a right granted by the EPO, whose actions are not subject to judicial review. The Enlarged Board is also aware of other complaints brought before national courts contending that the current EPO judicial system and in particular the petition for review procedure, infringes human rights.
3.9 The Enlarged Board understands the petitioners to be citing these cases to convince it that there is a serious breach of Article 6(1) ECHR which would justify a decision going beyond the facts of the present case alone, but, which is not, as already explained above in point 3.5, within the jurisdiction of the Enlarged Board. Rather, it is a matter for the legislator.
In any event, all the cases referred to are pending, and so far, the Enlarged Board is not aware of any national or European court decision denying the EPO's existing judicial system its capacity of fulfilling independently its judicial activity.
4. The circumstances of the present case: the factual framework
4.1 Turning now to the circumstances of the present case, the petitioners have made it clear that they had no subjective suspicion of the chairman objected to, merely an objective suspicion linked to the fact that the chairman of the Enlarged Board was also VP3 and that this duality of functions was incompatible with his independence and impartiality as chairman of the Enlarged Board. They emphasise that all conflicts of interest mentioned in R 19/12 were potential and have not materialised. They argue that, according to R 19/12, the mere possibility that such a conflict might arise is sufficient to consider the objection of suspicion of partiality to be justified.
4.2 However, it is not true that the Enlarged Board took decision R 19/12 irrespective of the facts of the case. Its decision, on the contrary, is based on a particular factual situation. The decisive objective circumstances which, in the view of the Enlarged Board in R 19/12, created an impression of lack of independence and impartiality for an objective observer were that the chairman of the Enlarged Board was involved, in his simultaneous function as VP3, in two administrative bodies (MAC and GAC/GCC), whereas the specific structural organisation of the boards of appeal as embedded within the EPO, requires, on the contrary, as little involvement in management as possible (R 19/12 above cited point 17.7, 23 and 24.2 of the Reasons).
4.3 The fact is that, following the decision of the President of the EPO dated 23 May 2014 (see point VIII above, the situation of VP3 has now reverted to one similar to that prevailing prior to his appointment to the above-mentioned bodies.
4.4 The petitioners argued that they learnt of this new situation only from the statement of the chairman objected to. However, the mere fact that the decision discharging VP3 from his tasks in the two administrative bodies found in R 19/12 to be incompatible with his duties as chairman of the Enlarged Board was not made public does not suffice per se to cast doubt on the reality of the situation as reported by the chairman objected to.
A statement made by the highest representative of the EPO judiciary in the exercise of his function can be expected to enjoy great credit which cannot convincingly be called into question by a mere assertion from the petitioners.
4.5 Contrary to the petitioners' suppositions, the Enlarged Board is not aware of any involvement on the part of VP3 in EPO management bodies - which is limited to attending MAC meetings as an observer for matters with a direct bearing on the boards of appeal - which would justify an examination under Article 4(1) RPEBA.
4.6 That is in line with restricting VP3's role to the management of the boards of appeal, just like the presiding judge of a court who is also involved in its administration.
4.7 As already stated in points 3.1 to 3.5 above, the Enlarged Board cannot accept the petitioners' position that their case is to be seen in the broader context of a general challenge to the structure of the EPO, i.e. the absolute assumption that VP3's obligations under the EPC (Article 10(2) (f) and (3)) EPC in the specific context of the EPO structure put him in a hierarchical position which necessarily creates the potential impression that his independence as chairman of the Enlarged Board is impaired and he is rendered unable to maintain the required distance from the administration whose decisions he has to review, regardless of the specific circumstances of a case.
4.8 To paraphrase the wording usually used by the ECtHR in the cases mentioned in point 3.4 above, the issue is therefore, whether or not, in respect of the present petition for review, the Enlarged Board chaired by a VP3 now discharged from his duties in the MAC and GAC/GCC is compatible with Article 6(1) ECHR, and not whether this situation complies with some theoretical judicial model.
4.9 In performing this analysis, one of the relevant criteria applied by the ECtHR is the existence of safeguards against outside pressures (ECtHR Pabla KY v. Finland, 22 September 2004, No. 47221/99 paragraph 26). This is the Enlarged Board's approach in the following analysis.
5. The Enlarged Board's analysis
5.1 First of all the petitioners are right to say that the EPC makes no provision for a duality of functions. Article 22(2), last sentence, EPC says that in all proceedings of the Enlarged Board a legally qualified member must be the chairman. It does not specify any particular one. But no conclusion can be drawn from this wording: if the duality of functions has no root in the EPC, at least it is not precluded.
5.2 It is also true that for a while the two functions of VP3 and chairman of the Enlarged Board were separate. But again the only question is whether this dual function, in the present circumstances, is detrimental to the EPC provisions (Article 23 EPC) and incompatible with the requirement of the objective impartiality of a tribunal under Article 6(1) ECHR (see above points 3.4 and 3.6 and ECtHR Kleyn and others v. The Netherlands above cited paragraph 198).
5.3 Turning to the possible safeguards mentioned above (see point 4.9), considerable information can be derived from the legislative history of the Enlarged Board and the boards of appeal.
5.3.1 The EPC as designed in 1969 was to be open to multiple European states, irrespective of whether they were members of the European Economic Community (now European Union). That meant that the EPO's second-instance decisions could not be reviewed by a court within the EEC institutions. The Luxembourg Intergovernmental Conference drafting the EPC therefore decided in 1972 not to create an independent European patent court – partly for cost reasons, but also to avoid fragmentation of international courts and to make it easier to set up a European IP court later on. It was however intended to put in place, within the EPO, a quasi-judicial second instance. On the basis of the relevant provisions from the 1962 preliminary draft, the conference sought to frame this instance's organisation and procedures in such a way that the boards of appeal and the Enlarged Board would correspond to the German constitution's concept of a judicial body (Singer, Das neue europäische Patentsystem, Baden-Baden 1979, page 81. Also Teschemacher, "Die Entstehungsgeschiche des Bundespatentgerichts - ein Lehrstück für die Beschwerdekammern des Europäischen Patentamts ?" in Festschrift zum 50-järigen Bestehen des Bundespatentgerichts, page 911).
5.3.2 To ensure clear separation of powers, under Article 11(3), first sentence, EPC the members and chairman of the Enlarged Board of Appeal are appointed by the Administrative Council on a proposal from the President of the EPO. So are the members of the boards of appeal. Article 23 EPC ("Independence of the members of the Boards") lays down provisions for their appointment, stipulating that they cannot normally be removed from office and that they are not bound by any instructions. That is a sine qua non for performing a judicial function and clearly sets the Enlarged Board's members and chairman apart from other EPO staff, including the vice-presidents, who are subject to the President's supervisory authority under Article 10(2)(f) EPC.
5.4 The same principles are reflected in the EPC's Implementing Regulations: the Presidium under Rule 12, for example, can exercise management functions only if it does not impinge on board members' independence and freedom from instructions as guaranteed in the Convention. Similarly, the Enlarged Board, presided over by its chairman (not VP 3) adopts its own rules of procedure and annual business distribution scheme (Rule 13 EPC). Special provisions relating to the quasi-judicial status of the Enlarged Board, its chairman and boards of appeal members are also laid down in the EPO's Service Regulations (e.g. their Articles 1(4), 15, 20(2), third sentence, and 41). In other words, the EPO's derived legislation contains suitably explicit rules confirming that the members of the boards of appeal, and the members and chairman of the Enlarged Board, enjoy the "independence" necessary in their judiciary function.
5.5 This structure of the boards of appeal under the EPC has, however, been open to criticism on the grounds that the independence enshrined in Article 23 EPC is only functional and cannot be complete so long as the judiciary is embedded in the Office (Sedemund-Treiber report above cited and cases referred to by the petitioners brought before national courts to protest against the lack of independence).
However, as stated in R 19/12, only the EPO legislator has the power to make the necessary amendments, in particular through a diplomatic conference revising the EPC. Therefore the reality has been that the independence of the members basically relies on the binding character of Article 23 EPC.
6. The potential for conflicts of interest caused by the dual function
6.1 As things stand, the serving VP 3 also acts as chairman of the Enlarged Board.
6.1.1 As VP 3, he is appointed by the Administrative Council after the EPO President has been consulted (Article 11(1) EPC). In this function, he is in charge of Directorate-General 3 (DG 3, "Appeals", Rule 9 EPC) and assists the President (Article 10(3) EPC) and is subject to instructions from the EPO President (Article 10(2)(f) and 10(3) EPC.
6.1.2 As chairman of the Enlarged Board, he is appointed by the Council on a proposal from the President (Article 11(3) EPC). In this function, he enjoys the independence enshrined in Article 23 EPC and is subject only to the EPC provisions. In both of his functions, his disciplinary authority is the Administrative Council.
6.2 The potential conflicts intrinsic to this dual function were perceived even prior to R 19/12 as is shown by the EPC's legislative history. They have been circumvented merely by means of specific organisational measures.
6.2.1 This is exemplified by various decisions and implementing provisions reflecting VP3's special status as head of the organisational unit DG3 ("Appeals").
6.2.2 For instance, VP3 is expressly excluded from deputising for the President of the EPO. According to the decision of the Administrative Council of 6 July 1978, (OJ EPO 1978, 326) implemented by the established rules (ServRegs-Rules on deputising for the President Codex 1a, updated November 2014), "The substitute for the President … shall be the longest-serving Vice-President Directorate-General 2, 4, or 5 who is present in Munich at the relevant time". VP3 is absent from that list. The explanatory document CA/3/78 of 7 February 1978 submitted to the Administrative Council at the time was clear: "… nor the Vice-President of Directorate-General 3, in view of the independence which that Directorate –General is required to observe, could deputise for the President".
6.3 This dual-role issue was also analysed by former EPO President Paul Braendli in the Münchner Gemeinschaftskommentar" 24. Lieferung, March 2000 Art.11 EPC.
Braendli pointed out that, if two functions (VP3 and Enlarged Board chairman) are exercised by one and the same person whose appointment by the Administrative Council is subject to differing conditions and procedures (see above points 6.1.1 and 6.1.2), this raises the issue of which of the two procedures takes the precedence. Braendli concluded that… "the only way to solve this conflict…, is for the Administrative Council to appoint the President's proposed candidate first of all as EBoA chairperson and then, in a second step, as VP3…. Another justification for this solution is that the EBoA chairperson's function as the most senior representative of the judicial bodies at the EPO is of more fundamental legal importance. It takes precedence over VP3's function of assisting the President in managerial activities (Article 10(3) EPC) which is in any case limited in scope by the judicial independence the VP enjoys as chairperson (Article 23 EPC)" (Münchner Gemeinschaftskommentar" above cited, points 36 and 37, translated from German).
6.4 The Enlarged Board can only confirm that within the legal structure enshrined in the EPC. The EPO's administrative and executive authorities have consistently tried until a recent past to discharge VP3 from tasks which might not be compatible with his status of head of the judiciary i.e. reduce the scope of application of Article 10(3) EPC which should make it apparent that the function of chairman of the Enlarged Board of Appeal prevailed over the VP3 function, so that in his function as chairman of the Enlarged Board he could enjoy the functional independence guaranteed by Article 23 EPC.
6.5 From the above it can also be concluded that, if a single individual, in the form of VP3, has the dual role of safeguarding judicial independence and at the same time of exercising management authority, this can only be interpreted to mean - as is shown by the EPC's legislative history and the application of the relevant EPC provisions - that the requirement to safeguard independence must be taken into account when exercising such management authority. In other words, Article 23 EPC limits the President's power to give instructions under Article 10(2)(f) EPC to the Enlarged Board's chairman in his capacity of VP3. Article 23 EPC can only be seen as the means to counter any influence the EPO Executive might seek to exert on VP3 under Article 10(2)(f) and (3) EPC.
6.6 As shown above, the balance achieved within this structure, had been considered, several times prior to R 19/12, as being sufficient to ensure that independence and thus the users' confidence in the EPO judiciary (e.g., G 03/08 of 12 May 2010, point 7.2.1 of the Reasons, OJ EPO 2011, 10).
6.7 The only petition for review case the Enlarged Board is aware of in which an objection based on suspected partiality (other than for subjective reason) was raised is R 09/12 of 3 December 2009, which, precisely was not chaired by the chairman of the Enlarged Board and where all three members were objected to, on the grounds that they were at the same time members of a technical board or the Legal Board and therefore might have an interest in the case. The Enlarged Board is not aware of any challenge to the chairman of the Enlarged Board in review proceedings prior to R 19/12.
6.8 National decisions have also expressed this confidence, for example Lenzing AG's European Patent (UK) [1997] R.P.C. 45. The latter decision was referred to the ECtHR which underlined the guarantees offered by the EPO system, in particular through Article 23 EPC.
6.9 In R 19/12 the Enlarged Board judged that the operational balance achieved between the judicial body and the administrative interface of VP3, which maintained the necessary distance from the EPO's executive and enabled the Enlarged Board to carry out its tasks in full independence, had been disrupted by VP3's participation in the MAC and the GAC/GCC.
7. The situation in the present case
7.1 VP3's present situation has 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. In this situation the safeguards of judicial independence, referred to above, are no longer jeopardised. What remains is the argument that the dual function of VP3 and chairman of the Enlarged Board within the EPO judiciary body is at odds with the principle of separation of powers, which, as is implicit throughout the petition, is the real issue behind the objection of partiality.
7.2 The petitioners argued that the case started under the former organisational arrangement and therefore the situation of conflict of interests remains the same as in R 19/12. The Enlarged Board cannot accept this argument.
Firstly this argument is no longer related to the factual situation but to the person, who is suspected of not being able to be as independent as were his predecessors in the same situation in the past. As already mentioned above, the Enlarged Board has no reason not to believe the statements of the chairman objected to.
Secondly, while the standpoint of the petitioners is important, it is not necessarily the standpoint of an objective observer. It appears to a neutral observer that the function of VP3, freed from the administrative tasks found incompatible in R 19/12, is now basically restricted to the administration of DG3. Those are the only established facts of which the Enlarged Board is aware. Under these circumstances, the conditions are again met for Article 23 EPC to fulfil its safeguard role vis-à-vis Article 10(2)(f) and (3) EPC for VP3 when acting in his judicial function.
7.3 It follows from the above that, also bearing in mind ECtHR case law, the mere fact that a judicial organisation includes a dual function which does not happen to coincide with a specific conceptual model of the separation of powers does not mean that it necessarily infringes Article 6(1) ECHR. Thus, the dual function does not in itself give rise to suspicion of partiality and cannot justify excluding the chairman objected to. Whether this organisational arrangement, chosen by the EPO administrative and executive authorities, remains the most appropriate after R 19/12, is not for the Enlarged Board to decide (Kleyn and others v. the Netherlands above cited paragraph 198).
7.4 It remains to be ascertained whether, in the present case, as argued by the petitioners, there are other specific elements linked to this dual function, apart from the structural organisation of the EPO which could give an objective observer an impression of partiality or lack of independence.
8. The petition for review procedure as an aggravating cause of the risk of partiality
[…]
Order
For these reasons it is decided that the request of the petitioners that Mr. X be replaced as chairman of the Enlarged Board in its composition pursuant to Rule 109(2)(b) EPC is rejected.
In an interlocutory decision of 25 April 2014 in the Petition for Review case R19/12, the Chairman of the Enlarged Board of Appeal was replaced having been accused of potential partiality in view of his role as Vice President of the EPO and as such subject to the supervisory authority of the President of the EPO under Article 10(2)(f) EPC (R19/12 r.14.1 in conjunction with r.16).
As a consequence, the EPO took internal measures to reduce the consequences of the double function, but did not officially publish the measures.
In R 2/14 suspected partiality of the chairman was raised again. The Enlarged Board had to decide whether the measures taken removed the grounds. It decided that that was the case. It reasoned:
r.39.6 Consequently, the Board considers that it is appropriate to apply the legal concept of "normative concordance" so that a balance between the conflicting legal / institutional provisions of Article 10(3) EPC (in respect of management functions) and Article 23(3) EPC (in respect of judicial functions) can be achieved with regard to the Chairman's dual duties as VP3 and Chairman of the Enlarged Board of Appeal.
r.39.7 In applying the concept of "normative concordance" to the present case, the Board concludes that the President's power to give instructions to the Chairman in his function as VP3 pursuant to Article 10(2)(f) and (3) EPC is limited by virtue of Article 23(3) EPC.
The Chairman is accordingly relieved of any obligation
(a) to obey any presidential instructions or
(b) to observe other administrative/executive directions or
(c) to assist the President pursuant to Article 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, including the Enlarged Board of Appeal, directly or indirectly, in performing their judicial duties (see also Braendli, Münchner Gemeinschaftskommentar EPÜ, supra, Art. 10, para. 53, and Art. 11, para. 37).
r.39.7 In applying the concept of "normative concordance" to the present case, the Board concludes that the President's power to give instructions to the Chairman in his function as VP3 pursuant to Article 10(2)(f) and (3) EPC is limited by virtue of Article 23(3) EPC.
The Chairman is accordingly relieved of any obligation
(a) to obey any presidential instructions or
(b) to observe other administrative/executive directions or
(c) to assist the President pursuant to Article 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, including the Enlarged Board of Appeal, directly or indirectly, in performing their judicial duties (see also Braendli, Münchner Gemeinschaftskommentar EPÜ, supra, Art. 10, para. 53, and Art. 11, para. 37).
In R. 8/13 this issue is raised for the third time. The focus now shifts to whether the current way of working complies with international law.
The Enlarged Board decides that that is the case. This decision seems for the time being to end the discussion on partiality of the Chairman of the Enlarged Board in view of the double function of also being a Vice President (of DG3).
The Enlarged Board reiterates that it would be best to remove the organisational conflicts but that that is in issue for the legislator.
Catchwords
The potential conflicts intrinsic to the dual function of vice-president of the EPO Directorate-General 3 (VP3) and chairman of the Enlarged Board were perceived even prior to R 19/12 as is shown by the EPC's legislative history. They have been circumvented merely by means of specific organisational measures (points 6.2 and 6.3).
If a single individual in the form of VP3 has the dual role of safeguarding judicial independence and at the same time of exercising management authority, this can only be interpreted to mean - as shown by the EPC's legislative history and the application of the relevant provisions - that the requirement to safeguard independence must be taken into account when exercising such management authority. In other words, Article 23 EPC limits the President's power to give instructions under Article 10(2)(f) EPC to the Enlarged Board's chairman in his capacity of VP3.
Article 23 EPC can only be seen as the means to counter any influence the EPO executive might seek to exert on VP3 under Article 10(2)(f) and (3) EPC (point 6.5)
In the circumstances of the present case and in view of VP3's restricted duties, there are no ascertainable facts giving objective cause to believe that Article 23 EPC can no longer fulfil its safeguard role vis-à-vis Article 10(2)(f) and (3) EPC when acting in his judicial function (point 7.2).
Whether the current organisational structure remains the most appropriate one is for EPO legislator to decide (points 3.5 and 7.3).
Summary of Facts and Submissions
I. A petition for review was filed by the patent proprietors against decision XXX of Technical Board of Appeal XXX dismissing their appeal against the decision of the opposition division maintaining European patent No. XXX in amended form.
II. At the end of oral proceedings held on 24 March 2014, the Enlarged Board, in three-member composition, decided to submit the petition to a five-member board in compliance with Rule 109(2)(b) EPC and Article 17 of Rules of Procedure of the Enlarged Board of Appeal (RPEBA).
III. Prior to the oral proceedings before the Enlarged Board in its five-member composition, the petitioners, by letter dated 2 June 2014, filed further submissions in support of their petition and, on pages 12 and 13 of those submissions, stated with reference to R 19/12 that: "In any event as an auxiliary measure and in order to safeguard the rights of the petitioners-patentees and not to be precluded in other proceedings, we herewith object to the chairman of the current composition of the Enlarged Board of Appeal in this case for suspicion of partiality in line with the reasoning of R 19/12".
IV. The chairman thus objected to was replaced by his alternate in accordance with Article 24(4) EPC and invited under Article 4(2) RPEBA to present his comments as to whether there were grounds for excluding him. His comments dated 28 July 2014 were sent to the parties on 13 August 2014 and a one-month time limit was set for their comments.
V. On 10 September 2014 the petitioners filed further submissions in reaction to the comments of the chairman objected to and expressly requested that he be excluded under Article 24 EPC.
VI. Oral proceedings were held on 10 October 2014. The Enlarged Board decided that they would not be public in compliance with Article 116(4) EPC to protect the personal rights of the person concerned and because the debate revolved around documents relating to objections to the chairman of the Enlarged Board of Appeal which Rule 144(a) EPC excluded from inspection under Article 128(4) EPC.
VII. At the end of the oral proceedings the chairman closed the debate and after deliberation announced that the decision would be issued in writing after final deliberation by the Enlarged Board and that no further submissions were possible.
VIII. The comments of the chairman objected to are summarised as follows:
X. The petitioners' written submissions and their arguments presented at the oral proceedings are summarised as follows: […]
Catchwords
The potential conflicts intrinsic to the dual function of vice-president of the EPO Directorate-General 3 (VP3) and chairman of the Enlarged Board were perceived even prior to R 19/12 as is shown by the EPC's legislative history. They have been circumvented merely by means of specific organisational measures (points 6.2 and 6.3).
If a single individual in the form of VP3 has the dual role of safeguarding judicial independence and at the same time of exercising management authority, this can only be interpreted to mean - as shown by the EPC's legislative history and the application of the relevant provisions - that the requirement to safeguard independence must be taken into account when exercising such management authority. In other words, Article 23 EPC limits the President's power to give instructions under Article 10(2)(f) EPC to the Enlarged Board's chairman in his capacity of VP3.
Article 23 EPC can only be seen as the means to counter any influence the EPO executive might seek to exert on VP3 under Article 10(2)(f) and (3) EPC (point 6.5)
In the circumstances of the present case and in view of VP3's restricted duties, there are no ascertainable facts giving objective cause to believe that Article 23 EPC can no longer fulfil its safeguard role vis-à-vis Article 10(2)(f) and (3) EPC when acting in his judicial function (point 7.2).
Whether the current organisational structure remains the most appropriate one is for EPO legislator to decide (points 3.5 and 7.3).
Summary of Facts and Submissions
I. A petition for review was filed by the patent proprietors against decision XXX of Technical Board of Appeal XXX dismissing their appeal against the decision of the opposition division maintaining European patent No. XXX in amended form.
II. At the end of oral proceedings held on 24 March 2014, the Enlarged Board, in three-member composition, decided to submit the petition to a five-member board in compliance with Rule 109(2)(b) EPC and Article 17 of Rules of Procedure of the Enlarged Board of Appeal (RPEBA).
III. Prior to the oral proceedings before the Enlarged Board in its five-member composition, the petitioners, by letter dated 2 June 2014, filed further submissions in support of their petition and, on pages 12 and 13 of those submissions, stated with reference to R 19/12 that: "In any event as an auxiliary measure and in order to safeguard the rights of the petitioners-patentees and not to be precluded in other proceedings, we herewith object to the chairman of the current composition of the Enlarged Board of Appeal in this case for suspicion of partiality in line with the reasoning of R 19/12".
IV. The chairman thus objected to was replaced by his alternate in accordance with Article 24(4) EPC and invited under Article 4(2) RPEBA to present his comments as to whether there were grounds for excluding him. His comments dated 28 July 2014 were sent to the parties on 13 August 2014 and a one-month time limit was set for their comments.
V. On 10 September 2014 the petitioners filed further submissions in reaction to the comments of the chairman objected to and expressly requested that he be excluded under Article 24 EPC.
VI. Oral proceedings were held on 10 October 2014. The Enlarged Board decided that they would not be public in compliance with Article 116(4) EPC to protect the personal rights of the person concerned and because the debate revolved around documents relating to objections to the chairman of the Enlarged Board of Appeal which Rule 144(a) EPC excluded from inspection under Article 128(4) EPC.
VII. At the end of the oral proceedings the chairman closed the debate and after deliberation announced that the decision would be issued in writing after final deliberation by the Enlarged Board and that no further submissions were possible.
VIII. The comments of the chairman objected to are summarised as follows:
- The petitioners' partiality objection boiled down to a mere reference to R 19/12 and therefore was not properly substantiated.
- With respect to the ground which in R 19/12 had been considered to justify the suspicion of partiality, namely the participation of Vice-President 3 (hereinafter "VP3") in administrative bodies, namely the General Advisory Committee (hereinafter "GAC") and, as from 1 July 2014, its successor body, namely the General Consultative Committee (hereinafter "GCC"), as well as the Management Committee (hereinafter "MAC"), the chairman objected to had, in the aftermath of R 19/12, been informed in writing by the President of the Office of the following decision dated 23 May 2014:
- "Not to nominate Mr. X to the General Consultative Committee established by decision of the Administrative Council CA/D2/14.
- With immediate effect, Mr. X will not be called upon to exercise any function connected with the General Advisory Committee.
- With immediate effect Mr. X will not participate in any further MAC meeting as member. Participation as observer for points of discussion with a direct bearing on the boards of appeal and its support services is not excluded".
- Therefore, the managerial activities which, in the view of the Enlarged Board in R 19/12, had led to a suspicion of partiality had been discontinued.
- The present case also differed from R 19/12 in that there was no alleged procedural violation by the first instance giving rise to a suspicion of partiality linked to his former managerial function inside the EPO.
- He was "... not aware of any pressure...to sacrifice the right of a petitioner for review to a fair procedure and respect for his right to be heard, in order to achieve efficiency goals set by the management of the office or for any other reason".
- As regards the reasoning of the Enlarged Board in R 19/12, (Reasons 17.2-17.4) based on the possibility of receiving "Weisungen" (instructions), he declared that he was not aware of any such "Weisungen des Amtspräsidenten" (instructions from the President of the Office) or of any resulting "Interessenkonflikt" (conflict of interests).
X. The petitioners' written submissions and their arguments presented at the oral proceedings are summarised as follows: […]
Reasons for the Decision
1. The admissibility of the objection as insufficiently substantiated […]
2. The principles to be applied
2.1 In support of their objection of suspected partiality under Article 24(3) EPC, the petitioners refer to R 19/12, and therefore rely considerably on the requirements of the European Convention on Human Rights (hereinafter "ECHR"), especially its Article 6(1), which apply to the present case.
2.2 It is true that the European Commission of Human Rights stated in Lenzing v. Germany, 9 September 1998 No. 39025/97 that as the EPO was not a party to the ECHR the Commission had no competence ratione materiae to examine, under Article 6 ECHR, the proceedings it conducted or the decisions it took. However, it is undisputed and established case law of the Enlarged Board of Appeal, that the EPC, which was signed by contracting parties to the ECHR, must be applied in a way which supports the fundamental principles of Article 6(1) ECHR (G 01/05, OJ EPO 2007, 362, point 22 of the Reasons; G 02/08 above cited, point 3.3 of the Reasons).
2.3 Furthermore the Enlarged Board falls within the definition laid down by the European Court of Human Rights (hereinafter "ECtHR") in Campbell and Fell v. the United Kingdom (28 June 1984, No 7819/77, paragraph 76): "the word "Tribunal" in Article 6 paragraph 1 is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country". A tribunal may also be set up to deal with specific subject-matter which can be appropriately administered outside the ordinary court system. What is important, to ensure compliance with Article 6(1) ECHR, are the guarantees, both substantive and procedural, which are in place (ECtHR, Rolf Gustafson v. Sweden, 1 July 1997, No. 23196/94, paragraph 45).
2.4 Determining impartiality within the meaning of Article 24(3) and (4) EPC in the case law developed by the Enlarged Board and the boards of appeal in line with the case law developed by the ECtHR under Article 6(1) ECHR, means applying a subjective test with regard to the personal convictions and behaviour of a particular judge in a given case, and also an objective test to ascertain whether the judge offers sufficient guarantees to exclude any legitimate doubt about his impartiality. In this connection, the standpoint of the person concerned is important without being decisive (ECtHR Cooper v. the United Kingdom, 16 December 2003 No. 48843/99, paragraph 104; Micallef v. Malta, application, 15 October 2009 No. 17056/06 paragraphs 93 to 97; Enlarged Board of Appeal G 01/05 above cited, points 19 ff. of the Reasons; G 02/08 above cited, point 3.3 of the Reasons). This is illustrated by the oft-quoted aphorism that "justice must not only be done but must also be seen to be done" (ECtHR De Cubber v. Belgium, 26 October 1984, No. 9186/80, paragraph 26 (criminal case); Micallef v. Malta (civil case), above cited paragraph 98).
3. The scope of the request based on suspected partiality: legal framework
3.1 In the first place, the Enlarged Board does not accept the petitioners' view that R 19/12 is a general ruling binding on the Enlarged Board in the current case as well as in all petition proceedings that include the chairman objected to on the ground that he is structurally insufficiently independent. Nor does the Enlarged Board agree with the petitioners that its sole choice here is either "following or contradicting R 19/12". That particular ruling, like any judicial decision, was necessarily based on an evaluation of the particular circumstances underlying the case in point. There is no legal basis for taking the findings of one decision and applying them to a different case without also considering the facts and circumstances of the case at issue.
3.2 Furthermore, according to ECtHR case law, when assessing compliance with Article 6(1)ECHR the task is to decide in each individual case whether the relationship, i.e. in the present case, VP3's hierarchical link with the EPO executive and the possible conflict of interests arising from his duality of functions as VP3 and chairman of the Enlarged Board of Appeal, is of such a nature and degree as to indicate a lack of impartiality on the part of the person objected to (Micallef v. Malta above cited, paragraph 97 and 102).
Consequently, the Enlarged Board does not accept the petitioners' submissions, that R 19/12 has definitively established that the public, on an objective basis, can no longer have any confidence in an Enlarged Board chaired by VP3.
3.3 Rather the Enlarged Board will consider the petitioners' arguments based on their interpretation of R 19/12 and the conclusions they draw from that decision - which as shown below boils down to a reliance on its contents - in the light of the established facts underlying the present case.
3.4 That is also the standard approach of the ECtHR, which in Kleyn and Others v. the Netherlands (6 May 2003 No. 39343/98, 39651/98, 43147/98, 46664/99, paragraphs 197 and 198), for instance, in reviewing a tribunal's impartiality expressly took into account the changes made by the state to rectify deficiencies highlighted in a previous similar case (ECtHR Procola v. Luxembourg 28 September 1995, No. 14570/89).3.5 Furthermore, the Enlarged Board has to make a clear distinction between factual circumstances entailing a risk of objective partiality on the part of the chairman objected to and the petitioners' general arguments based on alleged structural flaws of the boards of appeal, combined with the development of the case law on petitions for review and the potential for VP3's dual function to give rise to pressure exerted by the EPO's administration on the case law.
Indeed, this very broad approach (see X (b) above) defining the subject-matter of the debate as encompassing the structure of the EPO judiciary, is aimed, as the petitioners explain, at triggering the convening of a diplomatic conference to enact structural reforms of the EPO's judicial system, which are necessary in the petitioners' view to implement the principle of the separation of powers as already set out in the Sedemund-Treiber report, submitted to the Administrative Council in CA/46/04.
However, this aim goes not only beyond the scope of the pending request but also beyond the function of the Enlarged Board, which - as will be explained in more detail below - is to apply the EPC to the existing facts at hand in line with other binding law such as the ECHR.
3.6 According to the ECtHR, neither Article 6(1) ECHR nor any other provision of the ECHR requires contracting states to comply with any theoretical constitutional concepts regarding the permissible limits of the interaction between separate powers (Kleyn and Others v. the Netherlands, above cited, paragraphs 193 and 198). That means analysing a situation case by case, not ruling in the abstract. The ECtHR's task is to determine whether the contracting states have achieved the result called for by the ECHR, not to indicate the particular means to be utilised; that is mutatis mutandis the Enlarged Board's task in the present case, in the exercise of its judicial function, with respect to the application of the EPC.
3.7 In addition general arguments based on an alleged structural weakness of the EPO's judicial system were not considered in R 19/12 to be a direct reason for suspicion; rather, they were regarded as aggravating the risk linked to VP3's involvement in specific management bodies. Accordingly, the Enlarged Board will follow ECtHR case law to the effect that when assessing compliance with Article 6(1) ECHR the task is not to rule in the abstract on the compatibility with the ECHR of the legal system concerned (i.e. in this case, that of the EPO) (Kleyn and Others v. the Netherlands already above cited, paragraph 198); rather, the examination should be confined to the case at hand (Steck-Risch and Others v. Liechtenstein, 19 May 2005, No. 63151/00 paragraphs 39 and 46) and to a careful scrutiny of its specific circumstances (Wettstein v. Switzerland, 21 March 2001, No. 33958/96, paragraph 41).
3.8 The petitioners also referred to the case (C-146/13) brought by the Kingdom of Spain against the European Parliament and the Council of the European Union. Spain requests that EU Regulation No. 1257/012 implementing enhanced cooperation on the unitary patent be declared void or set aside in its entirety. One of the grounds put forward (paragraph 27 of the conclusions of the Advocate General of 18 November 2014) is that the regulation is in breach of the values of the rule of law because it establishes a set of rules based on a right granted by the EPO, whose actions are not subject to judicial review. The Enlarged Board is also aware of other complaints brought before national courts contending that the current EPO judicial system and in particular the petition for review procedure, infringes human rights.
3.9 The Enlarged Board understands the petitioners to be citing these cases to convince it that there is a serious breach of Article 6(1) ECHR which would justify a decision going beyond the facts of the present case alone, but, which is not, as already explained above in point 3.5, within the jurisdiction of the Enlarged Board. Rather, it is a matter for the legislator.
In any event, all the cases referred to are pending, and so far, the Enlarged Board is not aware of any national or European court decision denying the EPO's existing judicial system its capacity of fulfilling independently its judicial activity.
4. The circumstances of the present case: the factual framework
4.1 Turning now to the circumstances of the present case, the petitioners have made it clear that they had no subjective suspicion of the chairman objected to, merely an objective suspicion linked to the fact that the chairman of the Enlarged Board was also VP3 and that this duality of functions was incompatible with his independence and impartiality as chairman of the Enlarged Board. They emphasise that all conflicts of interest mentioned in R 19/12 were potential and have not materialised. They argue that, according to R 19/12, the mere possibility that such a conflict might arise is sufficient to consider the objection of suspicion of partiality to be justified.
4.2 However, it is not true that the Enlarged Board took decision R 19/12 irrespective of the facts of the case. Its decision, on the contrary, is based on a particular factual situation. The decisive objective circumstances which, in the view of the Enlarged Board in R 19/12, created an impression of lack of independence and impartiality for an objective observer were that the chairman of the Enlarged Board was involved, in his simultaneous function as VP3, in two administrative bodies (MAC and GAC/GCC), whereas the specific structural organisation of the boards of appeal as embedded within the EPO, requires, on the contrary, as little involvement in management as possible (R 19/12 above cited point 17.7, 23 and 24.2 of the Reasons).
4.3 The fact is that, following the decision of the President of the EPO dated 23 May 2014 (see point VIII above, the situation of VP3 has now reverted to one similar to that prevailing prior to his appointment to the above-mentioned bodies.
4.4 The petitioners argued that they learnt of this new situation only from the statement of the chairman objected to. However, the mere fact that the decision discharging VP3 from his tasks in the two administrative bodies found in R 19/12 to be incompatible with his duties as chairman of the Enlarged Board was not made public does not suffice per se to cast doubt on the reality of the situation as reported by the chairman objected to.
A statement made by the highest representative of the EPO judiciary in the exercise of his function can be expected to enjoy great credit which cannot convincingly be called into question by a mere assertion from the petitioners.
4.5 Contrary to the petitioners' suppositions, the Enlarged Board is not aware of any involvement on the part of VP3 in EPO management bodies - which is limited to attending MAC meetings as an observer for matters with a direct bearing on the boards of appeal - which would justify an examination under Article 4(1) RPEBA.
4.6 That is in line with restricting VP3's role to the management of the boards of appeal, just like the presiding judge of a court who is also involved in its administration.
4.7 As already stated in points 3.1 to 3.5 above, the Enlarged Board cannot accept the petitioners' position that their case is to be seen in the broader context of a general challenge to the structure of the EPO, i.e. the absolute assumption that VP3's obligations under the EPC (Article 10(2) (f) and (3)) EPC in the specific context of the EPO structure put him in a hierarchical position which necessarily creates the potential impression that his independence as chairman of the Enlarged Board is impaired and he is rendered unable to maintain the required distance from the administration whose decisions he has to review, regardless of the specific circumstances of a case.
4.8 To paraphrase the wording usually used by the ECtHR in the cases mentioned in point 3.4 above, the issue is therefore, whether or not, in respect of the present petition for review, the Enlarged Board chaired by a VP3 now discharged from his duties in the MAC and GAC/GCC is compatible with Article 6(1) ECHR, and not whether this situation complies with some theoretical judicial model.
4.9 In performing this analysis, one of the relevant criteria applied by the ECtHR is the existence of safeguards against outside pressures (ECtHR Pabla KY v. Finland, 22 September 2004, No. 47221/99 paragraph 26). This is the Enlarged Board's approach in the following analysis.
5. The Enlarged Board's analysis
5.1 First of all the petitioners are right to say that the EPC makes no provision for a duality of functions. Article 22(2), last sentence, EPC says that in all proceedings of the Enlarged Board a legally qualified member must be the chairman. It does not specify any particular one. But no conclusion can be drawn from this wording: if the duality of functions has no root in the EPC, at least it is not precluded.
5.2 It is also true that for a while the two functions of VP3 and chairman of the Enlarged Board were separate. But again the only question is whether this dual function, in the present circumstances, is detrimental to the EPC provisions (Article 23 EPC) and incompatible with the requirement of the objective impartiality of a tribunal under Article 6(1) ECHR (see above points 3.4 and 3.6 and ECtHR Kleyn and others v. The Netherlands above cited paragraph 198).
5.3 Turning to the possible safeguards mentioned above (see point 4.9), considerable information can be derived from the legislative history of the Enlarged Board and the boards of appeal.
5.3.1 The EPC as designed in 1969 was to be open to multiple European states, irrespective of whether they were members of the European Economic Community (now European Union). That meant that the EPO's second-instance decisions could not be reviewed by a court within the EEC institutions. The Luxembourg Intergovernmental Conference drafting the EPC therefore decided in 1972 not to create an independent European patent court – partly for cost reasons, but also to avoid fragmentation of international courts and to make it easier to set up a European IP court later on. It was however intended to put in place, within the EPO, a quasi-judicial second instance. On the basis of the relevant provisions from the 1962 preliminary draft, the conference sought to frame this instance's organisation and procedures in such a way that the boards of appeal and the Enlarged Board would correspond to the German constitution's concept of a judicial body (Singer, Das neue europäische Patentsystem, Baden-Baden 1979, page 81. Also Teschemacher, "Die Entstehungsgeschiche des Bundespatentgerichts - ein Lehrstück für die Beschwerdekammern des Europäischen Patentamts ?" in Festschrift zum 50-järigen Bestehen des Bundespatentgerichts, page 911).
5.3.2 To ensure clear separation of powers, under Article 11(3), first sentence, EPC the members and chairman of the Enlarged Board of Appeal are appointed by the Administrative Council on a proposal from the President of the EPO. So are the members of the boards of appeal. Article 23 EPC ("Independence of the members of the Boards") lays down provisions for their appointment, stipulating that they cannot normally be removed from office and that they are not bound by any instructions. That is a sine qua non for performing a judicial function and clearly sets the Enlarged Board's members and chairman apart from other EPO staff, including the vice-presidents, who are subject to the President's supervisory authority under Article 10(2)(f) EPC.
5.4 The same principles are reflected in the EPC's Implementing Regulations: the Presidium under Rule 12, for example, can exercise management functions only if it does not impinge on board members' independence and freedom from instructions as guaranteed in the Convention. Similarly, the Enlarged Board, presided over by its chairman (not VP 3) adopts its own rules of procedure and annual business distribution scheme (Rule 13 EPC). Special provisions relating to the quasi-judicial status of the Enlarged Board, its chairman and boards of appeal members are also laid down in the EPO's Service Regulations (e.g. their Articles 1(4), 15, 20(2), third sentence, and 41). In other words, the EPO's derived legislation contains suitably explicit rules confirming that the members of the boards of appeal, and the members and chairman of the Enlarged Board, enjoy the "independence" necessary in their judiciary function.
5.5 This structure of the boards of appeal under the EPC has, however, been open to criticism on the grounds that the independence enshrined in Article 23 EPC is only functional and cannot be complete so long as the judiciary is embedded in the Office (Sedemund-Treiber report above cited and cases referred to by the petitioners brought before national courts to protest against the lack of independence).
However, as stated in R 19/12, only the EPO legislator has the power to make the necessary amendments, in particular through a diplomatic conference revising the EPC. Therefore the reality has been that the independence of the members basically relies on the binding character of Article 23 EPC.
6. The potential for conflicts of interest caused by the dual function
6.1 As things stand, the serving VP 3 also acts as chairman of the Enlarged Board.
6.1.1 As VP 3, he is appointed by the Administrative Council after the EPO President has been consulted (Article 11(1) EPC). In this function, he is in charge of Directorate-General 3 (DG 3, "Appeals", Rule 9 EPC) and assists the President (Article 10(3) EPC) and is subject to instructions from the EPO President (Article 10(2)(f) and 10(3) EPC.
6.1.2 As chairman of the Enlarged Board, he is appointed by the Council on a proposal from the President (Article 11(3) EPC). In this function, he enjoys the independence enshrined in Article 23 EPC and is subject only to the EPC provisions. In both of his functions, his disciplinary authority is the Administrative Council.
6.2 The potential conflicts intrinsic to this dual function were perceived even prior to R 19/12 as is shown by the EPC's legislative history. They have been circumvented merely by means of specific organisational measures.
6.2.1 This is exemplified by various decisions and implementing provisions reflecting VP3's special status as head of the organisational unit DG3 ("Appeals").
6.2.2 For instance, VP3 is expressly excluded from deputising for the President of the EPO. According to the decision of the Administrative Council of 6 July 1978, (OJ EPO 1978, 326) implemented by the established rules (ServRegs-Rules on deputising for the President Codex 1a, updated November 2014), "The substitute for the President … shall be the longest-serving Vice-President Directorate-General 2, 4, or 5 who is present in Munich at the relevant time". VP3 is absent from that list. The explanatory document CA/3/78 of 7 February 1978 submitted to the Administrative Council at the time was clear: "… nor the Vice-President of Directorate-General 3, in view of the independence which that Directorate –General is required to observe, could deputise for the President".
6.3 This dual-role issue was also analysed by former EPO President Paul Braendli in the Münchner Gemeinschaftskommentar" 24. Lieferung, March 2000 Art.11 EPC.
Braendli pointed out that, if two functions (VP3 and Enlarged Board chairman) are exercised by one and the same person whose appointment by the Administrative Council is subject to differing conditions and procedures (see above points 6.1.1 and 6.1.2), this raises the issue of which of the two procedures takes the precedence. Braendli concluded that… "the only way to solve this conflict…, is for the Administrative Council to appoint the President's proposed candidate first of all as EBoA chairperson and then, in a second step, as VP3…. Another justification for this solution is that the EBoA chairperson's function as the most senior representative of the judicial bodies at the EPO is of more fundamental legal importance. It takes precedence over VP3's function of assisting the President in managerial activities (Article 10(3) EPC) which is in any case limited in scope by the judicial independence the VP enjoys as chairperson (Article 23 EPC)" (Münchner Gemeinschaftskommentar" above cited, points 36 and 37, translated from German).
6.4 The Enlarged Board can only confirm that within the legal structure enshrined in the EPC. The EPO's administrative and executive authorities have consistently tried until a recent past to discharge VP3 from tasks which might not be compatible with his status of head of the judiciary i.e. reduce the scope of application of Article 10(3) EPC which should make it apparent that the function of chairman of the Enlarged Board of Appeal prevailed over the VP3 function, so that in his function as chairman of the Enlarged Board he could enjoy the functional independence guaranteed by Article 23 EPC.
6.5 From the above it can also be concluded that, if a single individual, in the form of VP3, has the dual role of safeguarding judicial independence and at the same time of exercising management authority, this can only be interpreted to mean - as is shown by the EPC's legislative history and the application of the relevant EPC provisions - that the requirement to safeguard independence must be taken into account when exercising such management authority. In other words, Article 23 EPC limits the President's power to give instructions under Article 10(2)(f) EPC to the Enlarged Board's chairman in his capacity of VP3. Article 23 EPC can only be seen as the means to counter any influence the EPO Executive might seek to exert on VP3 under Article 10(2)(f) and (3) EPC.
6.6 As shown above, the balance achieved within this structure, had been considered, several times prior to R 19/12, as being sufficient to ensure that independence and thus the users' confidence in the EPO judiciary (e.g., G 03/08 of 12 May 2010, point 7.2.1 of the Reasons, OJ EPO 2011, 10).
6.7 The only petition for review case the Enlarged Board is aware of in which an objection based on suspected partiality (other than for subjective reason) was raised is R 09/12 of 3 December 2009, which, precisely was not chaired by the chairman of the Enlarged Board and where all three members were objected to, on the grounds that they were at the same time members of a technical board or the Legal Board and therefore might have an interest in the case. The Enlarged Board is not aware of any challenge to the chairman of the Enlarged Board in review proceedings prior to R 19/12.
6.8 National decisions have also expressed this confidence, for example Lenzing AG's European Patent (UK) [1997] R.P.C. 45. The latter decision was referred to the ECtHR which underlined the guarantees offered by the EPO system, in particular through Article 23 EPC.
6.9 In R 19/12 the Enlarged Board judged that the operational balance achieved between the judicial body and the administrative interface of VP3, which maintained the necessary distance from the EPO's executive and enabled the Enlarged Board to carry out its tasks in full independence, had been disrupted by VP3's participation in the MAC and the GAC/GCC.
7. The situation in the present case
7.1 VP3's present situation has 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. In this situation the safeguards of judicial independence, referred to above, are no longer jeopardised. What remains is the argument that the dual function of VP3 and chairman of the Enlarged Board within the EPO judiciary body is at odds with the principle of separation of powers, which, as is implicit throughout the petition, is the real issue behind the objection of partiality.
7.2 The petitioners argued that the case started under the former organisational arrangement and therefore the situation of conflict of interests remains the same as in R 19/12. The Enlarged Board cannot accept this argument.
Firstly this argument is no longer related to the factual situation but to the person, who is suspected of not being able to be as independent as were his predecessors in the same situation in the past. As already mentioned above, the Enlarged Board has no reason not to believe the statements of the chairman objected to.
Secondly, while the standpoint of the petitioners is important, it is not necessarily the standpoint of an objective observer. It appears to a neutral observer that the function of VP3, freed from the administrative tasks found incompatible in R 19/12, is now basically restricted to the administration of DG3. Those are the only established facts of which the Enlarged Board is aware. Under these circumstances, the conditions are again met for Article 23 EPC to fulfil its safeguard role vis-à-vis Article 10(2)(f) and (3) EPC for VP3 when acting in his judicial function.
7.3 It follows from the above that, also bearing in mind ECtHR case law, the mere fact that a judicial organisation includes a dual function which does not happen to coincide with a specific conceptual model of the separation of powers does not mean that it necessarily infringes Article 6(1) ECHR. Thus, the dual function does not in itself give rise to suspicion of partiality and cannot justify excluding the chairman objected to. Whether this organisational arrangement, chosen by the EPO administrative and executive authorities, remains the most appropriate after R 19/12, is not for the Enlarged Board to decide (Kleyn and others v. the Netherlands above cited paragraph 198).
7.4 It remains to be ascertained whether, in the present case, as argued by the petitioners, there are other specific elements linked to this dual function, apart from the structural organisation of the EPO which could give an objective observer an impression of partiality or lack of independence.
8. The petition for review procedure as an aggravating cause of the risk of partiality
[…]
Order
For these reasons it is decided that the request of the petitioners that Mr. X be replaced as chairman of the Enlarged Board in its composition pursuant to Rule 109(2)(b) EPC is rejected.
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