4.5.9 Discretion under Article 13(2) RPBA 2020 – principles

Even if the board accepts a party's argument that the circumstances are exceptional, it is still at the board's discretion whether to admit the request into the appeal proceedings (T 709/16).

In numerous decisions, the boards have, in line with the principles set out in the explanatory remarks on Art. 13(2) RPBA 2020 in CA/3/19, pointed out that, at the third level of the convergent approach, the board may, in the exercise of its discretion under Art. 13(2) RPBA 2020, also rely on criteria applicable at the second level of the convergent approach, i.e. those set out in Art. 13(1) RPBA 2020 (see e.g. T 989/15, T 584/17, T 954/17, T 752/16, T 764/16, T 709/16, T 995/18). According to T 2429/17, at the third level of the convergent approach, the board may also rely on criteria applicable at the second and first levels of the convergent approach, i.e. those set out in Art. 13(1) RPBA 2020 and Art. 12(4) to (6) RPBA 2020.

Some decisions rely on criteria mentioned in Art. 13(1) RPBA 2020 without referring to this provision; see e.g. T 1609/16, in which the main request was considered to clearly address the outstanding issues and did not introduce any new subject-matter or raise new objections; see also T 1421/20, in which the criteria applied were linked to considerations of state of proceedings and procedural economy.

As outlined above (see chapter V.A.4.5.1 "Principles"), in some decisions the boards assessed the requirement of exceptional circumstances under Art. 13(2) RPBA 2020 and the criteria for the exercise of discretion in one step. In T 1904/16, for instance, the board considered there to be exceptional circumstances in view of, inter alia, the complexity of the new-subject-matter submitted, the reasons for the amendment, the current state of the proceedings and the need for procedural economy. See also T 1294/16, relying on, inter alia, considerations of procedural economy to assess whether there were exceptional circumstances.