4.11.2 Relationship between Article 12(4) RPBA 2007 and Article 13 RPBA 2007

The board in T 1162/12 pointed out that, when exercising their discretion under Art. 13(1) RPBA 2007, the boards took particular account of the complexity of the new subject-matter submitted, the current state of the proceedings and the need for procedural economy. The case law had recognised the fact that requests could have been presented at first instance as another potential criterion when exercising that discretion; although this criterion was mentioned in Art. 12(4) RPBA 2007, and so in connection with the admissibility of requests filed at the start of appeal proceedings, it was obvious that, if it could lead to the non-admission of such requests, it applied all the more so to late-filed ones. Otherwise a party intentionally not filing its requests with its grounds of appeal would be at an advantage (see also T 361/08 and T 144/09).

In T 144/09 the board noted that the applicability of Art. 12(4) RPBA 2007 is not restricted by the time limit for filing the grounds of appeal or any reply thereto. Indeed, a restriction in that sense would not seem to serve any useful purpose and might even result in a possibility of artificially circumventing Art. 12(4) RPBA 2007, irrespective of whether Art. 13(1) RPBA 2007 might be a further provision of the rules of procedure which could provide a different barrier to filing such requests (see also T 2598/12).

In the ex parte case T 133/12 the board considered it appropriate, when exercising its discretion under Art. 13(1) RPBA 2007, to take into account the provisions of Art. 12(4) RPBA 2007, according to which the board has the discretionary power to hold inadmissible requests which were presented by the appellant with the notice of appeal or the statement of grounds of appeal, but which could have been presented in the first instance proceedings (see also T 1587/07). The fact that the appellant had filed the requests after it filed the statement of grounds of appeal should not put the appellant in a better position than if it had filed them with the statement of grounds of appeal. Otherwise it would be easily possible for the appellant to circumvent the provisions of Art. 12(4) RPBA 2007 (see also T 143/14).