1.1. Exclusion and objection

Pursuant to Art. 24(1) EPC, members of the boards of appeal or of the Enlarged Board of Appeal may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal. If a member of a board or of the Enlarged Board of Appeal considers that he should not take part in any appeal, he shall inform the board accordingly (Art. 24(2) EPC). Art. 24(3) EPC additionally provides that members of a board of appeal may be objected to by any party for one of the reasons mentioned in Art. 24(1) EPC, or if suspected of partiality. The decision as to the action to be taken in the cases specified in paragraphs 2 and 3 of Art. 24 EPC shall be taken without the participation of the member concerned. For the purposes of taking this decision, the member objected to is replaced (Art. 24(4) EPC).

If the board has knowledge of a possible reason for exclusion or objection which does not originate from a member himself or from any party to the proceedings, according to Art. 3(3) RPBA 2020 and Art. 4(3) RPEBA there shall be no further proceedings in the case before a decision on the exclusion or objection is taken. Art. 3(3) RPBA 2020 amends Art. 3(3) RPBA 2007 for reasons of clarity/consistency to "exclusion or objection"; Art. 4(3) RPEBA still has the wording of Art. 3(3) RPBA 2007, which does not include the word "objection" For the purposes of taking this decision, the procedure of Art. 24(4) EPC shall be applied.

While there are no provisions comparable to Art. 24 EPC that are applicable to members of the departments of first instance, the case law of the boards of appeal has determined that the basic requirement of impartiality applies also to them (see G 5/91, OJ 1992, 617; see also in this chapter III.J.1.6 below).

In G 2/08 of 15 June 2009 date: 2009-06-15 the Enlarged Board noted that under "exclusion and objection" (Art. 24 EPC) the legislator distinguishes between, on the one hand, an irrefutable presumption of law consisting in those compelling grounds for exclusion (Art. 24(1) EPC; see in this chapter III.J.5.1.) that must apply ex officio, and may therefore be raised by anyone, i.e. the parties, the board or a third person, without their having to justify any personal interest as of right, and, on the other hand, the grounds for objection (Art. 24(3) EPC; see in this chapter III.J.5.3.) that may be raised by any party to the proceedings if it suspects partiality of a member of a board of appeal or of the Enlarged Board of Appeal, since said party enjoys a personal and legitimate interest in the proceedings and is entitled to due process of law in respect of said interest. In such a case the burden of proof lies with the party who raises the objection, since board members, including those of the Enlarged Board of Appeal, are a priori presumed to be unbiased (see in this chapter III.J.1.5.). This distinction is also reflected in Art. 112a(2)(a) EPC, which provides as a ground of petition for review that a member of a board of appeal took part in the decision in breach of Art. 24(1) EPC or despite having been excluded pursuant to a decision under Art. 24(4) EPC. In other words, whereas the grounds under Art. 24(1) EPC are considered to be peremptory due to the violation of the legal principle that nobody should be a judge in his own cause, the ground which could have justified an objection for suspicion of partiality is not directly envisaged as constituting a priori (i.e. unless proven and decided by the board; see also R 20/09) a cause of review (Art. 24(3) EPC). See also G 3/08 of 16 October 2009 date: 2009-10-16.