1.2.5 Cases pending before the German Federal Constitutional Court concerning the independence of the boards of appeal

In ex parte case T 1473/13, the request in support of a stay of proceedings mentioned constitutional complaints pending before the German Federal Constitutional Court (2 BvR 2480/10, 2 BvR 421/13, 2 BvR 756/16, 2 BvR 786/16) for insufficient judicial relief ("wegen unzureichenden Rechtsschutzes") at the EPO against a decision of the Boards of Appeal. The appellant referred to the question whether the FCC held the EPO boards of appeal not to be empowered to review decisions of examining divisions because its members did not enjoy judicial independence. If so, the appellant would be deprived of its right to present its case again before an independent judicial body to be set up should the board not stay the proceedings. This would amount to an infringement of the appellant's right to be heard pursuant to Article 113 EPC. The appellant would have to file constitutional complaints before the national courts of the designated contracting states. Conversely, if the present proceedings were stayed, no final decision would be given, and the appellant would be in a position to present its case before an independent judicial body that would have to be set up. The appellant made assertions without providing details or/and explanation for example on whether the FCC has jurisdiction on acts of the EPO, in relation to Germany, according to German constitutional law, and, if so, what was the scope of such jurisdiction and what are the powers vested in the FCC to exercise it. The board considered it appropriate to cover the essentials of the point of law of its own motion. Decisions by the EPO boards of appeal are, in principle, subject to review by the FCC. But so far there is no FCC case law on the implementation of a finding by the FCC that an EPO decision infringed the German Basic Law.

Eventually the board of appeal in case T 1473/13 considered that the appellant did not show that non-stay would cause a legal disadvantage for it in case of success of the constitutional complaints. On the other hand, the consequences of a stay of the present proceedings would impinge on effective judicial review in the present case by causing a delay of the proceedings. Furthermore, if other boards adopted the same approach, the administration of justice by the boards might become severely hampered and may even grind to a halt. In absence of an established disadvantage for the appellant, the respective adverse consequences of staying or not staying the proceedings could not be balanced. Consequently, the request for a stay was refused. The board also as to the nature of the board of appeal observed that examples show that board of appeal decisions were or are qualified as administrative rulings in jurisdictions other than that of the European Patent Organisation.

The board in T 1473/13 thoroughly reviewed the existence of procedural principles under Art. 125 EPC, aspects of the rule of law (ECHR) including effective judicial review, and independent and impartial courts. A stay of proceedings only needed to be addressed in case of an actual finding of a greater disadvantage by deciding on a case than by not deciding on it.