4.3.6 Submissions not admitted at first instance – error in the use of discretion – Article 12(6), first sentence, RPBA 2020
This section has been updated to reflect case law and legislative changes up to 31 December 2023. For the previous version of this section please refer to the "Case Law of the Boards of Appeal", 10th edition (PDF). |
Submissions that have been admitted at first instance do not fall within the ambit of Art. 12(6) RPBA 2020 (as noted e.g. in T 1193/21). Whether the boards can review such decisions and exclude the submissions concerned from the appeal proceedings is a matter of discussion.
In many decisions the boards have considered that there is no legal basis for excluding documents from the appeal proceedings which had been admitted into the proceedings by the opposition division (see e.g. T 617/16, T 2337/16, T 1654/19, T 449/21). In numerous other decisions the boards have held that they review such discretionary decisions, albeit only in a limited way (see e.g. T 2055/20, with reference to the Case Law of the Boards of Appeal, 10th ed., 2022, V.A.3.4.1.b) and to G 7/93, OJ 1994, 775).