4. Suspected partiality of members of the departments of first instance

In T 2475/17 the board had decided to remit the case to the department of first instance pursuant to Art. 111(1) EPC and Art. 11 RPBA 2020 since there had been a substantial procedural violation (infringement of Art. 113(2) EPC). It had also ordered that the appeal fee be reimbursed in full, pursuant to R. 103(1)(a) EPC. Moreover, it had confirmed that the decision under appeal contained a number of other errors. Against this background, the appellant had requested that the board order that the examining division conduct the examination proceedings in a completely different composition. The board referred to G 5/91 (OJ 1992, 617), in which it was found that the requirement of impartiality applied in principle also to employees of the departments of first instance of the EPO taking part in decision-making activities affecting the rights of any party. A change in composition was justified not only if there was actual partiality but also if there was reason to suspect it, i.e. an appearance of partiality However, the apparent partiality had to be justified on an objective basis; purely subjective impressions or vague suspicions were not enough (G 1/05, OJ 2007, 362). The mere fact that a substantial procedural violation had occurred did not necessarily mean that partiality was apparent. The board also noted, however, that the boards had held multiple times that the EPC did not offer any legal basis that would allow them to act as a substitute for the EPO management and order a change to the composition of the decision-making department of first instance (see, in particular, T 1221/97, T 71/99 and T 2111/13). Since the composition of the department of first instance was the responsibility of the EPO President, or rather his or her representatives, and not the department itself, Art. 111(1) EPC could not justify such an approach. The board went on to explain that, nevertheless, there had also been decisions in which a board had ordered a change to the composition of the department of first instance. This had been done both in cases in which the decision under appeal had not met the requirements of Art.19(2) EPC (e.g. T 251/88, T 939/91 and T 1788/14) and in cases in which the board had found that the right to be heard had been violated (e.g. T 628/95, T 433/93, OJ 1997, 509; T 95/04 and T 2362/08). The board in T 2475/17, however, took the view that, in the latter case, a board had the power to order a change in the department of first instance's composition only if it had arrived at the conclusion that the composition had been the actual cause of the violation of the right to be heard and that the violation could only be remedied by changing the composition, i.e. particularly if there was reason to suspect that one or more members of the department of first instance were partial. In addition, the board noted that any such order by a board was limited to requiring that the composition be changed so that the right of the parties to fair and lawful proceedings could be ensured. The scope of the change or which member of the examining or opposition division was replaced by whom remained the responsibility of those in whose remit the matter fell. In this case, however, the board found that the appellant had not convincingly demonstrated that the procedural violations identified had resulted from the examining division's composition. In its view, the appellant's mere assertion that these procedural violations indicated partiality and that there was therefore the risk that the examining division would act in a biased manner when continuing the proceedings could not justify ordering that its composition be changed.