1.3. Not a court or tribunal of an EU Member State

In T 276/99, the board noted that under the EC Treaty referrals to the Court of Justice of the European Communities (CJEC; now Court of Justice of the European Union – CJEU, its name since 1 December 2009) were governed by Art. 234 (now Art. 267 TFEU). The board pointed out that, prima facie, as the EPO boards of appeal were not a court or tribunal of an EU Member State, they did not have the status to refer a question to the CJEC.

In G 2/06 (OJ 2009, 306) the appellant had requested a referral of questions to the Court of Justice of the European Communities (CJEC, as it was at the time; now CJEU) on the argument that, since R. 28(c) EPC repeats the wording of Art. 6(2)(c) of Directive 98/44/EC, the Enlarged Board of Appeal in interpreting R. 28(c) EPC was interpreting European Union law. The request was rejected as inadmissible. The Enlarged Board made it clear that neither the EPC nor the Implementing Regulations thereto contain any provision for a referral by any instance of the EPO of questions of law to the CJEC. The boards of appeal are a creation of the EPC, and their powers are limited to those given in the EPC. Art. 234 of the EC Treaty gives the CJEC jurisdiction to give preliminary rulings concerning the interpretation of acts of the institutions of the European Community, such as the Directive, but does not appear to provide any basis for a board of appeal of the EPO to request the CJEC to give a ruling on any questions before a board of appeal. Art. 234 ECT requires the question to be raised in a case pending before a court or tribunal of an EU member state. The seat of the boards of appeal in an EU member state, Germany, could not alter their status as part of an international organisation with jurisdiction conferred under the EPC. The boards of appeal are not and have never been treated as courts or tribunals of their host country.

In R 1/10, the Enlarged Board held that not even a CJEU finding that the boards of appeal lacked the independence required of a judicial body adhering to the rule of law (see opinion of the Advocate-General of 2 July 2010 and CJEU opinion of 8 March 2011 in Case 1/09) would be binding on the boards. The European Patent Organisation was an autonomous subject of international law and inherently independent of the EU.