5. Suspected partiality of members of the boards of appeal

In the decision under review in R 3/16, the petitioner argued that once an objection based on Art. 24(3) EPC had been raised, the member(s) objected to could not take part in the decision whatsoever, be it on the admissibility or on the merits of the objection. The Enlarged Board noted that Art. 112a(2)(a) EPC foresaw the situation where a member of the board had taken part in the decision despite being excluded pursuant to a decision under Art. 24(4) EPC or in breach of Art. 24(1) EPC. The case in hand was not concerned with those two grounds since the members had not been excluded and no personal interest had been alleged. Therefore, by a mere application of the principles developed by the established case law of the Enlarged Board under Art. 112a EPC, the Enlarged Board held that if the alleged unlawfulness of the composition was not the consequence of a violation of the right to be heard or an omission of a request, this ground (an objection based on Art. 24(3) EPC) appeared to fall outside the scope of a review, since inter alia it was not on the list of grounds under Art. 112a EPC. The petitioner had further contended that it was an established principle that a party had no obligation to appear before an unlawful court; that, on the contrary, it could be prejudicial to do so since the right to be heard could not be properly guaranteed before such a court, thus leading to the question as to whether appeal proceedings held by a board unlawfully composed may amount per se to a breach of the right to be heard. This question, however, remained open because the Enlarged Board did not come to the conclusion that the board had actually ignored the procedure of Art. 24(4) EPC. Regarding the petitioner's misunderstanding of the first communication, the Enlarged Board held that the petitioner was itself responsible for not having attended the oral proceedings where the alleged ambiguity of a communication could have been dispelled. A petitioner is free not to attend the oral proceedings but this choice is at its own risk since a board is never obliged to postpone oral proceedings only because a party does not appear, provided that it bases its decision on the facts and arguments on file (R. 115 EPC and Art. 15(3) RPBA 2007).