4.3.7 Submissions that should have been submitted or which were no longer maintained at first instance – Article 12(6), second sentence, RPBA 2020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). |
Art. 12(6), second sentence, RPBA 2020 implies that the submissions in question had not been submitted in first-instance. The test of Art. 12(6), 2nd sentence, RPBA 2020 is therefore often applied in the framework of the exercise of discretion under Art. 12(4) RPBA 2020. See e.g. J 12/18, T 1081/20, T 3240/19. Other decisions address this question without reference to Art. 12(4) RPBA 2020. On the concept of amendment under Art. 12(2), (4) RPBA 2020, see above chapter V.A.4.2.1. In T 141/20, the board deemed Art. 12(6) RPBA 2020 to be lex specialis in relation to Art. 12(4) RPBA 2020.
Art. 12(6), second sentence, RPBA 2020 (just as Art. 12(4) RPBA 2007 before) expresses and codifies the principle that each party should submit all facts, evidence, arguments and requests that appear relevant as early as possible so as to ensure a fair, speedy and efficient procedure (T 101/17, citing T 162/09 and T 1848/12).
Reintroducing subject-matter the examination of which was deliberately foregone in the first-instance proceedings is at odds with the purpose of the appeal proceedings as a review instance, as stipulated in Art. 12(2) RPBA 2020. Generally, therefore, any such requests are not to be admitted under Art. 12(6), second sentence, first half-sentence, RPBA 2020 (T 1456/20).
As with Art. 12(6), first sentence, RPBA 2020 (see chapter V.A.4.3.6a)), the boards, after having established that the relevant requests, facts, objections or evidence should have been submitted in the first-instance proceedings, examine in a second step whether the circumstances of the appeal case justify admittance. See section V.A.4.3.7r) further below in this chapter.