1.4. "Subjective" and "objective" test, presumption of impartiality

In T 190/03 date: 2005-03-18 (OJ 2006, 502; see also R 8/13 of 20 March 2015 date: 2015-03-20; R 19/12 of 25 April 2014 date: 2014-04-25; T 283/03; T 572/03 of 18 March 2005 date: 2005-03-18; T 1193/02; T 1021/01 of 18 March 2005 date: 2005-03-18; T 281/03 of 18 March 2005 date: 2005-03-18 and T 281/03 of 30 March 2006 date: 2006-03-30) the board held that partiality had to be determined on the basis of the following two tests: firstly, a "subjective" test requiring proof of actual partiality of the member concerned; and secondly, an "objective" test according to which the deciding board judged whether the circumstances of the case gave rise to an objectively justified fear of partiality. The board stated that actual partiality was an internal characteristic of the member himself and its presence went against the principle of a fair trial. However, suspicion and appearances were not enough to show actual partiality. It was a fundamental duty of a board member acting in a judicial capacity to take decisions objectively and not be swayed by personal interest or other peoples' comments or actions. Thus, the board held that a board member's personal impartiality was to be presumed until there was proof to the contrary (see also G 2/08 of 15 June 2009 date: 2009-06-15 and R 19/12 of 25 April 2014 date: 2014-04-25).

On the other hand, the board stated that the appearance of partiality involved external aspects and reflected, regardless of whether the member was actually biased or not, the confidence that the board inspired in the public; "Justice must not only be done; it must be seen to be done" (see also T 900/02, T 2291/08 and R 8/13 of 20 March 2015 date: 2015-03-20). The board held that this aspect of partiality did not need to be proved in the same way as actual partiality, but rather it had to be established whether the circumstances gave rise to an objectively justified fear of partiality (objective element). This essentially corresponded to the "objective" and "reasonable" grounds identified in the case law of the EPO. The board stated that the above was in line with generally acknowledged procedural principles in the contracting states, e.g. the jurisprudence of the European Court of Human Rights (ECtHR).

In G 1/05 of 7 December 2006 date: 2006-12-07 (OJ 2007, 362) the Enlarged Board of Appeal stated that, for an objection under Art. 24(3), first sentence, EPC to be justified, it was not necessary that the board member concerned actually be partial. It sufficed that there was a suspicion (see chapters III.J.4., III.J.5. and III.J.6. below), i.e. an appearance, of partiality (called the "objective test" in the ECtHR jurisprudence since Piersack v. Belgium (1982) of 1 October 1982, No 8692/79, paragraph 30). There should be no risk that the courts would not ensure that justice was both done and perceived by the public to have been done. What was at stake was the confidence that the boards of appeal inspired in the public (see also R 19/12 of 25 April 2014 date: 2014-04-25, T 190/03 of 18 March 2005 date: 2005-03-18, OJ 2006, 502, ECtHR: Puolitaival and Pirttiaho v. Finland of 23 November 2004, No. 54857/00, paragraph 42). The Enlarged Board noted that it was, however, also commonly recognised in the jurisprudence of the boards of appeal and elsewhere that the party's "suspicion" had to be justified on an objective basis. Purely subjective impressions or vague suspicions were not enough (see also G 3/08 of 16 October 2009 date: 2009-10-16, R 2/12 of 26 September 2012 date: 2012-09-26, T 1674/12, T 1020/06 of 28 November 2008 date: 2008-11-28, T 985/01 of 18 March 2005 date: 2005-03-18 and T 190/03 of 18 March 2005 date: 2005-03-18, OJ 2006, 502, point 7 of the Reasons). The standpoint of the person concerned was important but not decisive (ECtHR: Puolitaival, paragraph 42; see also T 241/98 of 22 March 1999 date: 1999-03-22 and R 8/13 of 20 March 2015 date: 2015-03-20). The question was whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not or would not bring an impartial mind to bear on the adjudication of the case. It was thus necessary that a reasonable onlooker considering the circumstances of the case would conclude that the party might have good reasons to doubt the impartiality of the member objected to (see also T 954/98 of 9 December 1999 date: 1999-12-09, T 1257/14 of 5 February 2018 date: 2018-02-05).