b) Causal link between the exceptional circumstances and the late filing 

In T 2486/16 the board emphasised that, when filing new submissions in the appeal phase specified in Art. 13(2) RPBA 2020, a party, in providing "cogent reasons", should not only identify the circumstances invoked and explain why they should be regarded as exceptional but also explain why these circumstances had the direct result of preventing it from filing its requests at an earlier stage. In the case in hand, the appellant, which had filed the new request at issue and was successor in title of the original applicant, had invoked receivership and a transfer of ownership as exceptional circumstances. However, in the view of the board, even if these difficulties experienced by the original applicant were considered to constitute exceptional circumstances within the meaning of Art. 13(2) RPBA 2020, the requirement of establishing a causal link had not been fulfilled. The new appellant had submitted no evidence that the original applicant had been experiencing any such difficulties at the date of filing the statement of grounds of appeal, i.e. at the time when any auxiliary requests on which the appellant wished to rely should have been filed pursuant to Art. 12(3) RPBA 2020. See also T 482/19 and T 2463/16.

In T 2539/16 the board remarked that filing new requests more than eight months after the communication under Art. 15(1) RPBA 2020 and only a few weeks before the oral proceedings would not even have been justifiable under Art. 13(2) RPBA 2020 if there had been surprising statements in the communication.

Likewise in T 1707/17, which concerned a request filed during oral proceedings, the board emphasised that Art. 13(2) RPBA 2020 required the party not only to explain why the case involved exceptional circumstances but also to explain why its amendment, in terms of both content and timing, was a justified response to these circumstances. In particular, where a party sought to amend its case at a very late stage in the proceedings, the cogent reasons referred to in Art. 13(2) RPBA 2020 should include reasons why it had not been possible to file such an amendment earlier. In this context the board referred to T 1033/10, which had held with regard to Art. 13(1) RPBA 2007 that the state of the proceedings and the need for procedural economy taken together implied a requirement on a party to present appropriate requests as soon as possible if such requests were to be admitted and considered. In the board's view, there were no such cogent reasons in the case in hand.

However, in other decisions no such causal link condition was required. In T 545/18 the appellant had argued for the first time during oral proceedings before the board that a violation of its right to be heard had occurred in examination proceedings. The board acknowledged that there were exceptional circumstances within the meaning of Art. 13(2) RPBA 2020, considering the great importance of this right and the facts that no other party was affected by the late filing and that the board was in a position to take a decision on this issue without needing to postpone oral proceedings. For a further decision in which "exceptional circumstances" were construed broadly, see T 713/14 (summarised in chapter V.A.4.5.4a)).