3. Derogations from the language of the proceedings in written proceedings and in oral proceedings

Under R. 3(1) EPC (R. 1(1) EPC 1973) any party may use any EPO official language in written proceedings.

In T 706/91 the appeal had been drawn up in accordance with R. 1(1) EPC 1973 in one of the official languages, namely German. The appellant had therefore cited passages from the disputed European patent's claims and description in that language, even though they had been drawn up in French as the language of the proceedings. The board decided that these references were admissible.

In G 4/08 (OJ 2010, 572) the Enlarged Board of Appeal clarified that EPO departments cannot use, in written proceedings on a European patent application or an international application in the regional phase, an EPO official language other than the language of the proceedings used for the application under Art. 14(3) EPC (thereby overruling J 18/90, OJ 1992, 511). Referring to the principle that proceedings before the EPO are to be conducted in a single language (G 4/08), the board in T 1787/16 observed that only the language of the proceedings was to be used for the written decision. Only a decision in that single language of proceedings was in keeping with the R. 111(2) EPC requirements as to reasoning. R. 4(1) EPC (cf. R. 2(1) EPC 1973) allows any party to oral proceedings to use an official language of the EPO other than the language of the proceedings, provided he either gives the EPO at least one month's notice or arranges for interpreting into the language of the proceedings. Under R. 4(5) EPC the EPO must, if necessary, provide at its own expense interpretation into the language of the proceedings, or, where appropriate, into its other official languages, unless such interpretation is the responsibility of one of the parties.

In T 34/90 (OJ 1992, 454) the board reiterated the principle that appeal proceedings are not a mere continuation of first-instance proceedings, but are, for the purpose of deciding the permissibility of using an alternative official language under R. 2(1) EPC 1973 (R. 4(1) EPC), as for other procedural purposes, wholly separate and independent from those. Accordingly, it rejected the respondent's attempt to use the other official language already used by it in the oral proceedings before the opposition division, without fulfilling the requirements of R. 2(1) EPC 1973 as they applied to the pending appeal proceedings.

See also the communication from the Vice-President of DG 3, OJ SE 3/2007, 118.

In T 774/05 the board stated that R. 2(1) EPC 1973 (R. 4(1) EPC) implied that a party could choose to use one of the official languages set out in Art. 14(1) EPC 1973 and was entitled to speak and hear that language. However, a party had to be clear as to which official language it wished to use. The party then had a right to both speak and hear in that language, so long as the conditions of R. 2(1) EPC 1973 were fulfilled. The party did not, however, have a right to have a language in which it would speak and a different language in which it would listen.

In T 418/07 the respondent announced that it would use German at the oral proceedings (language of the proceedings being English) and requested the board to provide translation from German into English for the benefit of one of its employees who would attend the oral proceedings and who did not speak German. The board stated that a party's right to interpreting from either of the two other official languages was circumscribed by R. 4 EPC. A party which elected to use a language which was not understood by one of its own representatives or employees could not for that reason request a free translation. The board could not provide translation merely to suit the convenience of a party.

In T 2422/10 the board rejected the respondent's argument that it had an absolute right to interpreting into English as the language of the proceedings. The general rule needed to be set against the principle of efficiency of the proceedings and the duty of all services of the EPO, including the boards of appeal, to observe the finances of the EPO. The wording of R. 4(5) EPC allowed the board to assess the necessity of such interpreting (cf. T 131/07). It was evident that the respondent's representative was quite capable of understanding any oral submissions of the appellant in German without interpretation. See also T 2696/16.

In T 1895/13 the appellant complained that the oral proceedings at first instance had been held without interpreters although it had requested simultaneous translation in time. It argued that the examining division had no discretion to refuse interpretation in such a situation (R. 4(1) EPC) and had also infringed the appellant's right to be heard (Art. 113(1) EPC).The board referred to case T 2249/13, concerning a comparable situation, in which the board had stated in its communication that even if a procedural violation might have occurred, it did not appear to have substantially affected the appellant's right to be heard, and that the appellant had addressed only hypothetical problems that might occur in general if the right to exchange arguments in a desired language was restricted. The current board added that indicating a potential problem did not mean that the problem had actually occurred. The burden of proof lay with the appellant, who had not satisfied its obligation to submit facts allowing an assessment of whether there had been a substantial violation of rights.

In T 2109/15, the board pointed out that the EPC did not impose any requirements as regards a party's hiring of interpreters beyond those in R. 4(1) and (5) EPC and, in particular, did not contain any provision requiring that the parties agree on the choice of interpreter. According to the opponent, it had hired professional interpreters regularly working at oral proceedings before the EPO. The board could see no reason to doubt that the oral proceedings had been conducted fairly and that the parties' right to be heard had been observed.

In T 2422/10 (see above) the respondent was also accompanied by an expert, whom the board decided not to hear following the criteria of G 4/95 (OJ 1996, 412). In these circumstances the board considered that interpretation into English for the expert at the expense of the EPO would not be justified. Accompanying persons did not have an automatic right to it.

The matter of the language arrangements in oral proceedings in relation to an accompanying person also arose in T 131/07 and R 3/08 (for the latter see chapter V.B.4.3.18).

For a case which concerns the discretion given to the EPO under R. 4(1), last sentence, EPC to derogate from the provisions of this Rule, see T 982/08.On the costs of interpreting in oral proceedings see also chapter III.C.8.2. and T 2109/15.