R 8/13 Partiality settled for the time being
Background
In an interlocutory decision of 25 April 2014 in the Petition for Review case R19/12, the Chairman of the Enlarged Board of Appeal was replaced having been accused of potential partiality in view of his role as Vice President of the EPO and as such subject to the supervisory authority of the President of the EPO under Article 10(2)(f) EPC (R19/12 r.14.1 in conjunction with r.16).
In an interlocutory decision of 25 April 2014 in the Petition for Review case R19/12, the Chairman of the Enlarged Board of Appeal was replaced having been accused of potential partiality in view of his role as Vice President of the EPO and as such subject to the supervisory authority of the President of the EPO under Article 10(2)(f) EPC (R19/12 r.14.1 in conjunction with r.16).
As a consequence, the EPO took internal measures to reduce the consequences of the double function, but did not officially publish the measures.
In R 2/14 suspected partiality of the chairman was raised again. The Enlarged Board had to decide whether the measures taken removed the grounds. It decided that that was the case. It reasoned:
r.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.
r.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).
r.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).
In R. 8/13 this issue is raised for the third time. The focus now shifts to whether the current way of working complies with international law.
The Enlarged Board decides that that is the case. This decision seems for the time being to end the discussion on partiality of the Chairman of the Enlarged Board in view of the double function of also being a Vice President (of DG3).
The Enlarged Board reiterates that it would be best to remove the organisational conflicts but that that is in issue for the legislator.
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