5.1.2 RPBA 2007 provisions on late-filed submissions

Art. 12 and 13 RPBA 2007 (and Art. 10a and 10b RPBA 2003 before them) were already aimed, in essence, at concentrating the parties' submissions at an early stage of the proceedings, to ensure that the case was as complete as possible when it was processed. In particular, amendments which would have led to an adjournment of the oral proceedings were not to be admitted. Their purpose was therefore to expedite the proceedings and implement the principle of fairness towards the other party or parties. It followed from this that parties to appeal proceedings were subject to certain restrictions as far as their procedural conduct was concerned. For example, it was already each party's own responsibility under Art. 12 and 13 RPBA 2007 to submit all facts, evidence, arguments and requests relevant for the enforcement or defence of their rights as early and completely as possible (T 162/09). When these various principles were enacted in the RPBA 2003 provisions on amendments to a party's case (Art. 10a and 10b RPBA 2003), this essentially codified the boards' already comprehensive case law at the time (on this point, see T 87/05, R 5/11).

Under Art. 12(2) RPBA 2007, the statement of grounds of appeal and the reply had to contain a party's complete case and was expected, inter alia, to specify expressly all the facts, arguments and evidence relied on.

Art. 12(4) RPBA 2007 (which remains applicable in some transitional cases) expressly referred to the boards' power to exclude requests which could have been filed or were not admitted in the first-instance proceedings. It was thus already the case under the RPBA 2007 – like the RPBA 2003 before them – that the boards' decisions were as a rule to be based on the issues in dispute at first instance. This did not rule out the admission of new submissions, but did subject it to the fulfilment of certain criteria to ensure that no entirely "fresh case" was created on appeal (on this point, see also T 356/08, T 1685/07, T 162/09).

Under Art. 13(1) RPBA 2007 (which remains applicable in some transitional cases), the boards had discretion to admit and consider any amendment to a party's case after it had filed its grounds of appeal or reply. This discretion was (and, in those transitional cases, still is) to be exercised in view of, inter alia, the complexity of the new submissions, the state of the proceedings at the time and procedural economy. Those factors were, however, listed only as examples and, as made clear in the case law, other considerations, including well-established criteria relevant to the admissibility issue, could (and can) be taken into account too (R 16/09, R 1/13, T 253/10, T 484/11). Art. 13(3) RPBA 2007 added that amendments sought to be made after oral proceedings had been arranged were not to be admitted "if they raise issues which the Board or the other party or parties cannot reasonably be expected to deal with without adjournment of the oral proceedings".