5.13. Criteria for considering late-filed facts and evidence

The criteria governing the admission of late-filed facts and evidence in proceedings before the boards of appeal were – and still are – more restrictive and stringent than those applicable in opposition proceedings at first instance. In decisions taken under the RPBA 2003 and the RPBA 2007, the boards' exercise of their discretion took account of the criteria listed as examples in Art. 13(1) RPBA 2007 (complexity of new subject-matter submitted, state of proceedings at the time and need for procedural economy; Art. 13(1) RPBA 2007 may still apply in transitional cases; see chapter V.A.5.1.1 "General rule that RPBA 2020 immediately applicable and exceptions"). However, this list was not exhaustive and thus other criteria were used too: for example, the relevance of the late-filed submission, the reasons for its late filing, whether the late filing had to be regarded as an abuse of procedure and whether it was a legitimate reaction to the decision at first instance. On the current position under the RPBA 2020, see chapter V.A.4.4.6 "Discretion under Article 13(1) RPBA 2020 – new facts, objections, arguments and evidence" and, regarding discretion under Art. 13(2) RPBA 2020, chapter V.A.4.5.11 "Criteria for discretion applied to new facts, objections, arguments and evidence".