9.2.1 No absolute right to have issue decided on at two instances

It is the boards' settled case law that parties do not have a fundamental right to have their case examined at two levels of jurisdiction. Accordingly, they have no absolute right to have each and every matter examined at two instances; Art. 111(1), second sentence, EPC leaves it instead to the board's discretion to decide on an appeal either by exercising any power conferred on the department of first instance or by remitting the case to that department (R 9/10, T 83/97, T 133/87, T 557/94, T 402/01 of 21 February 2005 date: 2005-02-21, T 399/04, T 1252/05, T 1363/10, T 1803/14, T 1521/15, T 418/17, T 113/18). In choosing what to do, the board must consider the circumstances of the individual case, also bearing in mind other factors such as the need for procedural economy (T 392/89 of 3 July 1990 date: 1990-07-03, T 1376/07, T 1253/09, T 2266/13). It is well-recognised that any party should, where possible, be given the opportunity to have two readings of the important elements of a case (T 1084/03, T 1907/06, T 286/09, T 1627/17).

In T 2839/19 the board stated that, although there was no absolute right to have an issue decided upon at two instances, it was also not the function of the board to consider and decide upon issues which had not been examined at all by the department of first instance.

In T 270/19 the board noted that the relevant circumstances of the case were to be taken into account when exercising discretion. In particular, consideration was to be given as to whether further investigations would be required, whether the facts of the case had changed significantly since the contested decision and what view the applicant took of the possible "loss of an instance". The weight given to each factor depended on the circumstances of the case in hand.