Friday, 13 March 2015

R 2/14 - Normative concordance solving a normative conflict?


 
Catchwords:

1. The simultaneous entrustment of the Chairman of the Enlarged Board of Appeal with judicial tasks in his capacity as judge appointed in accordance with Article 11(3) EPC and with executive tasks in his capacity as Vice-President Appeals appointed pursuant to Article 11(2) EPC causes an inherent "normative conflict" between the institutional provisions of Article 10(2)(f)and (3) EPC and Article 23(3) EPC, which cannot be completely resolved without changes to the current institutional structure of the European Patent Organisation. However, in the meantime, its impact can and must be mitigated by a continuous balancing of these potentially conflicting duties ("normative concordance") (points 36 to 40).

2. The factual scope of an objection pursuant to Article 24(3) EPC is defined in the statement of grounds of objection initiating the interlocutory proceedings under Article 24(4) EPC. Apart from a subsequent elaboration of said objection by supporting facts, evidence and arguments, the subject-matter of the proceedings, in principle, cannot be extended or changed, whether by new facts or by a new objection (points 56.3 to 56.6).

Summary of Facts and Submissions

I. The patent proprietor (hereinafter: the petitioner) filed a petition for review against decision ... of Technical Board of Appeal ... (hereinafter: the Technical Board of Appeal) dated ... dismissing its appeal against the decision of the opposition division dated ... revoking European patent No. ... . The petitioner based its petition for review on a fundamental violation by the Technical Board of Appeal of its right to be heard (Articles 112a(2)(c) and 113 EPC). In essence, the petition contained the assertion that, when taking the decision under review, the Technical Board of Appeal either had disregarded essential facts or arguments submitted by the petitioner or had based its decision on facts or arguments unknown to the petitioner.

II. The present proceedings relate to the petitioner's objections to all the members of the Enlarged Board of Appeal in its original composition pursuant to Rule 109(2)(a) EPC, consisting of Mr ... as the first and Mr ... second legally qualified members (the second legally qualified member being the chairman) and Mr ... the technically qualified member (hereinafter: the Enlarged Board). The petitioner raised and reasoned these objections in its letter of 8 July 2014 (hereinafter: the statement of grounds of objection).

(...)

Reasons for the Decision

Relevant legal provisions and general aspects

1. According to Article 24(1) EPC, members of the boards of appeal or of the Enlarged Board of Appeal may not take part in a case in which they have any personal interest, or if they have previously been involved as representatives of one of the parties, or if they participated in the decision under appeal ("judex incapax / judex inhabilis"). Those grounds for exclusion must be applied ex officio and may be raised by anyone, i.e. the parties, the Board, or a third party.

2. In addition to this, members of a Board of Appeal or of the Enlarged Board of Appeal may be objected to by any party for suspected partiality pursuant to Article 24(3) EPC (ground for objection – "judex suspectus"); the members' nationality does not constitute a reason for objection.

3. Pursuant to Article 24(4) EPC the Enlarged Board of Appeal shall decide as to the action to be taken in the cases specified in paragraphs 2 and 3, without the participation of the member concerned. For the purposes of taking this decision the member objected to shall be replaced by his alternate the Enlarged Board shall decide as to the action to be taken in the event of a recusal by a member (Article 24(2) EPC) or of an objection by a party (Article 24(3) EPC) without the participation of the member concerned. For the purposes of taking this decision the member objected to shall be replaced by his alternate.

In the present case, since the petitioner objected to all three members of the Enlarged Board in its original composition, all of them have been replaced by the members delivering this interlocutory decision.

(...)

Justification of the petitioner's objection to the Chairman - Standard for assessing suspected partiality according to interlocutory decision R 19/12

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22. If follows from the above that the Board must assess whether the petitioner's objection to the Chairman is justified.

This assessment will start with a general definition of the standard for assessing the alleged partiality of a member of the Enlarged Board of Appeal (points 23 to 25).

This will be followed by

(1) an examination of the facts on which the objection is based (see points 26 to 30),

(2) an analysis of whether the factual situation as it is now correlates to those facts (see points 31 to 46),

(3) a consideration of the potentially temporary nature of the measures adopted as a result of interlocutory decision R 19/12 (see points 47 to 50),

(...)

(1) Facts on which the objection was based

26. In the context of the first part of the test, the Board needs to establish "in concreto" the factual circumstances that led the Enlarged Board of Appeal in its interlocutory decision R 19/12 to find the objection of suspected partiality substantiated. This is followed by an examination whether those factual circumstances (or any further facts brought to the Board's attention other than by the petitioner) were still predominant at the closure of the oral proceedings on 14 November 2014.

(...)

28. The Board takes note of the petitioner's statement in its reply that its objection was in essence not aimed at the Chairman's previous function in the Office's senior management prior to taking up his appointments as VP3 and as Chairman of the Enlarged Board of Appeal. The objection was aimed rather at the question of the compatibility of his current two functions.

Consequently, the Board will not examine the first point above in detail. Rather, the Board refers in this matter to the relevant findings in interlocutory decision R 19/12, with which it concurs. According to the Enlarged Board of Appeal in that decision, the fact that the Chairman had previously held a very senior position within an administrative hierarchy was not in itself sufficient ground to justify a suspicion of partiality (see interlocutory decision R 19/12, supra, point 13.4 of the Reasons).

29. Moving now to the third point above before (the second point being dealt with in detail in points 30 et seq. below), the Board is not persuaded by the petitioner's argument.

First, it is quite self-evident that the Chairman of the Enlarged Board of Appeal is usually one of the regular members assigned to an individual case. Article 6(4) BDS/EBA provides for his substitution only in the event that, for whatever reason, he cannot sit on a particular case.

Secondly, the Board cannot see a causal connection between the fact that the Chairman has assigned himself to a particular case and the petitioner's conclusion that his impartiality is thereby put in doubt from the perspective of a reasonable, objective and informed observer. In its submission on this point, the petitioner does no more than allege that the Chairman could influence the outcome of petition for review cases if he is part of the Enlarged Board of Appeal in the composition deciding on those cases. However, such an unsubstantiated assertion cannot open the way for any substantive assessment.

Consequently, the Board will not elaborate on this point either.

30. In respect of the second of the above points, the Enlarged Board of Appeal held in interlocutory decision R 19/12 that the Chairman's appointment as VP3 was not "a case of a senior civil servant moving to a court of law separate from the previous administrative authority …, having completely detached himself from his previous involvement in administration". The Enlarged Board of Appeal considered that as Vice-President he remained subject to the instructions of the President of the Office, who is the direct superior of all the Vice-Presidents, and is assisted by them (Article 10(2)(f) and (3) EPC). Consequently, the "degree of independence enjoyed by the Vice-Presidents depends on the level of intensity at which the President exercises his authority to instruct and supervise them or otherwise calls upon them to assist him in managing the Office" (see interlocutory decision R 19/12, supra, points 14.1 and 14.2 of the Reasons).

Whereas the Chairman of the Enlarged Board of Appeal, as far as the decisions of the Enlarged Board are concerned, is not subject to instructions from the President, his unrestricted membership of the MAC and the GAC was regarded as capable of giving rise to a conflict of interest between his managerial duties as VP3 and his judicial position as Chairman of the Enlarged Board of Appeal (see interlocutory decision R 19/12, supra, points 14.2 et seq. of the Reasons).

The Enlarged Board of Appeal continued (interlocutory decision R 19/12, supra, point 24.1 of the Reasons):

"Given that, despite the existing misgivings, the structural weaknesses in the boards' organisation resulting from their integration within the Office have to be accepted, because the situation cannot be altered under the EPC as it currently stands, it seems all the more necessary for the head of the judicial institution that is embedded within the Office to be released, to the greatest extent possible, from any active involvement in the management bodies of the Office, and in particular of the President, in order to avoid, as far as possible, the impression that the judicial organ is bound up with the Office's administrative action or is furthering Office interests and aims. Instead, however, a contrary trend is observable: VP3's GAC membership and unreserved MAC participation."

(2) Correlation between the aforementioned facts and the current factual situation

31. The Board in its present composition does not see any need to re-examine the factual findings and legal conclusions of the Enlarged Board of Appeal in interlocutory decision R 19/12 or to add anything to them.

Since the petitioner linked its objection to the Chairman directly and exclusively to the factual findings of the Enlarged Board of Appeal in interlocutory decision R 19/12, it is the Board's task to determine whether, in terms of the Chairman's integration in the senior management of the Office, the present circumstances are similar to or different from those prevailing at the time when decision R 19/12 was taken.

32. In this respect, the Board understands the petitioner to have alleged in both its statement of grounds of objection and its later reply that the current circumstances are exactly or essentially the same as those established by the Enlarged Board of Appeal in interlocutory decision R 19/12. At the same time, however, the Board takes note of the Chairman's statement concerning the administrative measures that were adopted as a result of decision R 19/12.

33. Whereas the petitioner has not submitted any (new) facts or evidence in respect of the Chairman's current Office-related managerial activities, the Chairman, in his comments on the objection, has assured the Board that, following interlocutory decision R 19/12, all his managerial activities in the senior management committees of the Office, i.e. the MAC and the GAC (and also the GCC, which has replaced the GAC), have been discontinued, with the exception of his participation as an observer in the MAC for points of discussion having a direct bearing on the boards of appeal and their support services.

The Board is well aware that there has been no official publication of the aforementioned measures. However, bearing in mind that the members of the boards of appeal and of the Enlarged Board of Appeal have special obligations under Articles 11(4) and 23(3) EPC and Article 15 of the Service Regulations for Permanent Employees of the European Patent Office (hereinafter: Staff Regulations), the Board is of the opinion that the unqualified, clear and unambiguous assurance given by the Chairman has considerable evidential weight.

Thus, in the absence of any clear and reliable facts or evidence to the contrary, either from the petitioner or otherwise brought to the attention of the Board, the Board concludes that the facts stated by the Chairman are accurate.

34. As a consequence, the present factual circumstances "in concreto" clearly differ from those on which interlocutory decision R 19/12 was based. What remains of the previously established facts, as relied on by the petitioner, is that the Chairman, in his function as VP3, continues to be subject to the provisions of Article 10(2)(f) and (3) EPC.

35. In respect of the "objective" test, the Board must determine "in abstracto" whether the Chairman's continuing involvement in the senior management of the Office pursuant to Article 10(2)(f) and (3) EPC would in itself allow a reasonable, objective and informed person to conclude that a party might have good reason to suspect him of partiality.

36. In this respect, the Board notes that the Chairman's functions are twofold and interdependent.


36.1 In his management function as VP3, he assists the President (Article 10(3) EPC). Performance of this duty is subject to the President's supervisory power (Article 10(2)(f) EPC), which means that the Chairman has to answer directly to the President and is bound by the President's instructions as a matter of principle.


36.2 However, in his judicial function both as a legally qualified member of the boards of appeal in general and as Chairman of the Enlarged Board of Appeal, the Chairman is, by law, not bound by any instructions and must comply only with the provisions of the EPC (Article 23(3) EPC). Hence, in this capacity the Chairman is in no sense hierarchically subordinated to the President and is not answerable to him.

36.3 In both his functions the Chairman is subject to the disciplinary authority of the Administrative Council (Articles 11(2) to (4) and 23(1) EPC) and thus not that of the President (Article 93 et seq. Staff Regulations).

Hence, the petitioner's argument that the Chairman is subject to the disciplinary authority of the President is supported neither by the legal provisions referred to above nor by any facts. The same applies to the petitioner's argument that board members are subject to the disciplinary authority of VP3/the Chairman of the Enlarged Board.

36.4 It follows from the above that the suspicion of "functional or institutional partiality" on the part of the Chairman relates particularly to his administrative function as VP3. Clearly, the broader the scope of his duties as VP3 and the more substantial their content vis-à-vis his judicial function as Chairman of the Enlarged Board of Appeal, the more likely it is that a reasonable, objective and informed person might conclude that the Chairman's performance of his judicial duties could be materially influenced by the managerial or even political objectives of the Office, which are set in accordance with instructions given – or potentially to be given - by the President.

Vice versa, the less prominent the administrative tasks of the Chairman in his capacity as a member of the Office's senior management under the immediate direction of the President, the more his judicial role, the complete independence of which is guaranteed by the EPC, may prevail.

37. Thus, the Board notes that it is the rules governing the Chairman's dual functions, i.e. Article 10(2)(f) and (3) EPC in respect of his managerial function and Article 23(3) EPC with regard to his judicial function, that could in principle come into conflict with one other.

In legal terms, there is a "normative conflict" between two equal-ranking rules which is inherent in the legal framework governing the Chairman's dual functions and professional duties under the provisions of Article 10(3) EPC and Article 23(3) EPC. All other relevant provisions in the EPC (e.g. Article 10(2)(f) EPC), which regulates the President's supervisory authority, or in the Staff Regulations, which apply to the Chairman in his capacity as VP3, and to the President and all other Vice-Presidents, if there is express provision to that effect in their contract of employment (cf. Article 1(5) Staff Regulations and Article 11(2) EPC), are subordinate to Articles 10(3) and 23(3) EPC.

Neither the EPC, which is the self-contained statutory code forming the primary law of the EPO, nor any of the secondary legislation, such as the Staff Regulations, adopted under the EPC, contains an explicit rule of precedence as to which of the two functions should override the other in the event of conflict (...).

38. The very fact that the Chairman's dual functions are governed by equal-ranking provisions of the EPC indicates that he may not perform either function without having regard to the other.

39. Certainly, since time of the EPC 1973, the Presidents and Vice-Presidents of the EPO have been careful to avoid any direct clash between the above-mentioned provisions (see, with regard to representation of the President by VP3, Braendli, supra, Art. 10, para. 53 in combination with para. 29 et seq.). Nevertheless, the problem of this "normative conflict" remains and needs to be addressed by means of the rules themselves.

39.1 The most radical - but at the same time most clear-cut – solution appears to be the organisational separation of the boards of appeal from the Office. In its interlocutory decision R 19/12 (point 21 of the Reasons with reference to CA/46/04 and CA/85/04), the Enlarged Board of Appeal referred to the already existing complete draft for revision of the EPC in this respect. The boards of appeal, together with their support services, would then no longer be integrated in the Office as DG3 but would become a separate, fully independent body within the European Patent Organisation (see Pignatelli/Beckedorf in Benkard, EPÜ, supra, Art. 21, para. 17).

This initiative, the purpose of which would be to strengthen the judicial role and independence of the boards of appeal, has received considerable support**[1].

(...)

Implementing the initiative would require a Diplomatic Conference of the EPC Contracting States. However, there are no plans for this as yet.

39.2 Irrespective of when the Contracting States may act on this or any other (similar) legislative initiative, the "normative conflict" and the need to resolve it remain issues of fundamental importance.

The Board notes that in the wake of interlocutory decision R 19/12, the institutional status of the boards of appeal has become a subject of debate in the Administrative Council of the European Patent Organisation. However, no conclusions have been reached so far.

39.3 Aside from said legislative initiative – and at least until a clear and convincing solution to question of the institutional status of the boards of appeal has been agreed on and fully implemented - the problem of the "normative conflict" needs to be mitigated by other means.

In this context the Board is aware of the fact that the notion of a "normative conflict" is not unique to the European Patent Organisation but is known to legal systems of the Contracting States as well. Thus, the respective concepts for resolving such conflicts under national laws may serve as a model vis-à-vis the "normative conflict" of two provisions of the EPC.

39.4 German constitutional law recognises a legal concept called "praktische Konkordanz" ("practical" or, more precisely, "normative concordance"), which is applied in order to establish a balance between two conflicting fundamental rights provisions**[2]. This concept, which is recognised in the legal systems of other Contracting States**[3], constitutes a standard of constitutional interpretation, according to which two conflicting constitutional rules are "equalised", such that the legislative purpose of each can be achieved. The underlying principle is that preferential treatment should not be given to one constitutionally protected right at the expense of another - equally protected – right.

(...)


Thus, by fairly weighing up the competing interests in an individual case in accordance with the principle of proportionality it is possible to achieve a balance between two conflicting constitutional provisions.

(...)

39.6 Consequently, the Board considers that it is appropriate to apply the legal concept of "normative concordance" so that a balance between the conflicting legal / institutional provisions of Article 10(3) EPC (in respect of management functions) and Article 23(3) EPC (in respect of judicial functions) can be achieved with regard to the Chairman's dual duties as VP3 and Chairman of the Enlarged Board of Appeal.

39.7 In applying the concept of "normative concordance" to the present case, the Board concludes that the President's power to give instructions to the Chairman in his function as VP3 pursuant to Article 10(2)(f) and (3) EPC is limited by virtue of Article 23(3) EPC.

The Chairman is accordingly relieved of any obligation


(a) to obey any presidential instructions or


(b) to observe other administrative/executive directions or


(c) to assist the President pursuant to Article 10(3) EPC


if and to the extent that any such instruction, direction or assistance might affect him and/or any other member of the boards of appeal, including the Enlarged Board of Appeal, directly or indirectly, in performing their judicial duties (see also Braendli, Münchner Gemeinschaftskommentar EPÜ, supra, Art. 10, para. 53, and Art. 11, para. 37).


(...)

40. As a consequence, the inherent "normative conflict" caused by the dual function of the Chairman as VP3 and as a member of the boards of appeal and Chairman of the Enlarged Board of Appeal cannot be completely resolved without changes to the current institutional structure of the European Patent Organisation. However, in the meantime, its impact can and must be mitigated by a continuous balancing of the potentially conflicting duties.

Yet, once lawfully appointed, the Chairman – like any other judge – is deemed to act in good faith and is therefore presumed to be impartial until proven otherwise.

(...)


In its interlocutory decision R 19/12 (supra, point 24.1 of the Reasons), the Enlarged Board held in this regard that, despite the existing misgivings, the structural weaknesses in the boards' organisation resulting from their integration within the Office have to be accepted, because the situation cannot be altered under the EPC as it currently stands.

The Board now concludes that, if this is true, a reasonable, objective and informed person considering the circumstances of the Chairman's integration within the Office hierarchy at present would no longer have good reason to suspect the Chairman of partiality.


(...)


Conclusion

60. For the reasons set out above, the Board concludes that the petitioner's objection to the first legally qualified member and the technically qualified member of the Enlarged Board in case R 2/14 is inadmissible.

The Board also concludes that it has failed to provide sufficient justification for a suspicion of partiality on the part of the Chairman of the Enlarged Board to rebut the presumption of the Chairman's impartiality.

Therefore, in respect of the circumstances on which the petitioner based its objections at the outset of the current interlocutory proceedings up to the closure of the oral proceedings on 14 November 2014, the Board in its present composition does not see any reason to exclude and replace any of the members of the Enlarged Board, i.e. the Chairman, the legally qualified Member or the technically qualified Member, in its composition in case R 2/14 pursuant to Rule 109(2)(a) EPC.

ORDER

For these reasons it is decided that:

1. The requests of the petitioner to replace Mr ... and Mr ... as members of the Enlarged Board of Appeal in case R 2/14 in its composition pursuant to Rule 109(2)(a) EPC are rejected as inadmissible.

2. The request of the petitioner to replace Mr ... as chairman of the Enlarged Board of Appeal in case R 2/14 in its composition pursuant to Rule 109(2)(a) EPC is rejected as unjustified.

3. Mr ..., Mr ... and Mr ... remain members of the Enlarged Board of Appeal in case R 2/14 in its composition pursuant to Rule 109(2)(a) EPC.

This decision has European Case Law Identifier: ECLI:EP:BA:2015:R000214.20150217. The whole decision can be found here (pdf). No file wrapper available as the decision has been anonymized. Photo "old chair - HDR" by Cesare obtained via Flickr under CC BY 2.0 license (no changes made).

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