EP 2 484 209 B1 relate to insecticide compositions.
Brief outline of the case
The OD rejected the opposition and the opponent appealed.
Following G 2/21, board 3.3.02, decided in T 116/18 to admit the late filed submission, and dismissed the opponent’s appeal.
The opponent filed a request for revision under Art 112a.
The opponent raised an objection of partiality against the chairman in case R 4/24.
Compositions of the various EBA
The Chair of the EBA in G 2/21 was C. Josefsson.
The composition of the EBA in R 4/24 was originally fixed as follows: Chair, C. Josefsson; Legally qualified member, D. Rogers; Technically qualified member, K. Bengi-Akyürek.
Thus, C. Josefsson was Chair in both cases G 2/21 and R 4/24.
The petitioner’s objection
The petitioner’s objection is based upon C. Josefsson’s participation in decision G 2/21.
The petitioner acknowledged that C. Josefsson did not participate in decision T 116/18 and that he is not Chair of board 3.3.02.
Nevertheless, the petitioner argued that decision G 2/21 and T 116/18 are:
“[…] inextricably related by virtue of Art. 112(3) EPC and well-known by the European patent community to be so….
We submit that it would be unfortunate, if not undesirable, for a member of the Enlarged Board who participated in the Enlarged Board decision now to participate in deciding whether or not that decision was implemented with fundamental procedural fairness in the decision under review.”
The petitioner further argued that the present case may fall under the “or for any other reason” clause of Art 24(2). C. Josefsson might feel that recusing himself under this provision might be appropriate.
The procedure on partiality
The EBA in its original composition found the objection to be admissible. Thereupon, C. Josefsson appointed B. Müller as his alternate under Art 24(4) as Chair of the panel dealing with R 4/24. The EBA in this altered composition decided upon the objection of suspected partiality against C. Josefsson.
The Enlarged Board in its composition according to Art 24(4) invited C.Josefsson to make comments on the objection. C. Josefsson provided comments.
The decision of the EBA on partiality
The EBA in its current composition under Art 24(4) found the objection against C. Josefsson unconvincing.
By referring to Art 6 ECHR, the EBA in its composition under Art 24(4), reminded that
- suspicion of partiality of a judge has to be determined by two tests:
- firstly, a subjective test requiring proof of actual partiality of the judge concerned, and
- secondly an objective test, whether the circumstances of the case give rise to an objectively justified fear of partiality;
- with respect to the subjective test, it is presumed that a duly and lawfully appointed judge is personally impartial, unless there is proof of the contrary;
- with respect to the objective test, the following question has to be answered:
- would a reasonable, objective and informed person on the basis of the correct facts reasonably be concerned that the judge had not or would not bring an impartial mind to bear on the adjudication of the case.
- It thus has to be established that a reasonable onlooker considering the circumstances of the case would conclude that the party might have good reasons to doubt the impartiality of the judge objected to.
- This criterion excludes subjective suspicions on the part of the party who makes the objection.
C. Josefsson did not participate in the decision that is the subject of the petition for review. Therefore, he is not excluded under Art 2(6), second sentence, RPEBA, from acting as Chair in case R 4/24.
As regards C. Josefsson’s participation in G 2/21, it is true that, pursuant to Art 112(3), this decision was binding for the decision under review.
A decision by the EBA under Art 112 and the following final decision by the referring board, however, are separate decisions.
Under Art 112, the EBA in “G“-cases answers questions of law. It has no power in respect of and must refrain from deciding the underlying case. Rather, the application of the law in question to the facts of the appeal case rests exclusively with the competent board of appeal.
Against this background, the EBA is of the view that participating in decision G 2/21 does not exclude C. Josefsson from taking part in case R 4/24, reviewing the final decision in the referring case T 116/18.
Moreover, the EBA sees no other reasons, whether or not mentioned in Art 24(1) EPC, for excluding C. Josefsson from case R 4/24.
The petitioner’s argument based on the “or for any other reason” clause of Art 24(2) is also not convincing. Art 24(2) provides for a member themselves to put forward a reason for their exclusion. C. Josefsson has not put forward any such reason, but, rather, in his comments under Art 24(4), was of the view that there was no such reason.
In conclusion, the EBA finds that the objection against C. Josefsson is not justified and that he can continue to participate in case R 4/24 as Chair.
Comments
A highly problematic decision
This decision is not appealable, has to be accepted, but is highly problematic.
It is an open secret, that when C. Josefsson was ousted by his peers in the interlocutory decision of 17.05.2023 in G 1/21, he never understood and accepted his exclusion.
He allegedly claimed that he was independent enough not to mix his duties as President of the Boards when proposing Art 15a RPBA, allowing boards the discretion of holding OP by ViCo against the agreement of the parties, and its chairmanship in G 1/21.
In my opinion, he was rightly removed from the panel as his involvement in the preparation of Art 15a RPBA could not be denied.
In the present case, the involvement of C. Josefsson in G 2/21 can also not be denied.
It is thus difficult to understand why he was not removed from the panel in R 4/24.
Whilst it can be accepted that a decision by the EBA under Art 112 and the following final decision by the referring board are separate decisions, they remain inextricably linked as noted by the petitioner.
All in all, it would have been a decent move of C. Josefsson to remove himself from the panel in R 4/24.
In view of its attitude in G /21, it does however not come as a surprise that C. Josefsson did not see any reason to deport himself in R 4/24.
The reform of the boards of 2016 – Hierarchical situation
The present decision shows one of the shortcomings of the present structure of the boards of appeal introduced under the 2016 reform.
C. Josefsson is, according to R 12a(2), managing the boards of appeal.
According to R 12d(2), C. Josefsson has the right to propose the members, including the Chairmen, of the Boards of Appeal and the members of the Enlarged Board of Appeal for appointment by the Administrative Council, and the right to be consulted on their re-appointment.
There is thus no doubt possible that C. Josefsson is the hierarchical superior of all the members of the boards of appeal as he can decide on their appointment or reappointment.
The opponent had good reasons to doubt the impartiality of C. Josefsson in R 4/24 as he was directly involved in G 2/21.
One could also have doubts about the impartiality of the alternate chair as he is a subordinate of C. Josefsson. This does not bode well in matters of impartiality. Any alternate should not be a subordinate of the person it replaces.
Further reform of the boards is necessary
The present decision calls for a further reform of the BA and of the EBA in which at least the members of the EBA could not be at the same time members of the BA, and the chair of the EBA is excluded from any G or R panel in which he has acted directly or indirectly.
The autonomy of the boards vis-à-vis the president of the EPO should be complete. In spite of the reform of 2016, the boards are only independent in appearance, not in reality.
R 4/24 (Interlocutory decision)
Comments
5 replies on “R 4/24 – Interlocutory decision – Alleged partiality of the chair in R 4/24”
“By referring to Art 6 ECHR, […]” — what is ECHR?
ECHR stands for European Convention on Human Rights.
Art 6(1) disposes that any person in a contracting state has the right to a fair trial before an unbiased and independent judge.
This convention was signed and ratified under the aegis of the Council of Europe. It is not an EU institution.
The court has its seat in Strasbourg in direct vicinity of the Council of Europe and the European Parliament.
Thank you!
At issue here is whether there is an objectively justifiable fear of partiality, and whether such a fear can arise simply by virtue of one and the same judge (in one and the same case): (a) issuing a G decision; and (b) later interpreting and applying that G decision in a petition for review.
Whilst I can agree that it would be preferable for one judge not to take part in both decisions, I am not sure that I see why, based upon those facts alone, the situation would necessarily give rise to an objectively justifiable fear of partiality.
On the other hand, if the judge in question had, based upon an objectively justifiable fear of partiality, been EXCLUDED from participation in the G decision then their participation in ANY petition for review that interprets and applies that G decision would be HIGHLY problematic. Of course, this has not stopped Mr Josefsson from doing precisely this, as illustrated by his participation in, for example, R12/22.
I can therefore agree that further reform of the Boards is necessary. From my perspective, the situation now is WORSE than that prior to the 2016 reforms. The Members of the Boards owe their positions (including their reappointments) to the Chair of the EBA. The Chair of the EBA owes his position to the President of the EPO. Whilst the AC does have some say on (re)appointments, the reality is that the President essentially has total control over the whole process. Thus, what the President wants is what the President gets. Even if that means overriding important provisions of the EPC.
Exhibit A: G 3/19. Highly problematic in many ways, but mostly because it renders Article 164(2) EPC effectively unenforceable.
Exhibit B: G 1/21 and its subsequent interpretation. The decision itself if problematic for its limitation to appeal proceeding only, plus the lack of any attempt to explain why the interpretation of Articles 113 and 116 EPC does not also have relevance to first instance proceedings. The subsequent interpretations and applications are problematic for their blatantly biased and wilfully blind readings of G 1/21, for example by effectively ignoring the need for “good reasons” to deny a party their right to in-person proceedings.
One gets the impression that there are few, if any, Board members left who dare to issue any decisions on “sensitive” matters that might displease the President. I wish that I could say that this is a false impression. The evidence seems to speak otherwise.
@ Doubting Thomas,
Any position can be justified by a corresponding legal reasoning.
Lawyers are very good at this game This is what the alternate composition of the EBA has done.
The distinction between objective and subjective fear of partiality is not to be dismissed, and there are good reasons for not letting subjectivity end in the dismissal of a judge. The situation in R 4/24 is however not an ordinary situation.
In spite of what has been said, objectively seen there is a possibility for the chair in R4/24 to have its judgement tainted by his role as chair in G2/21.
It is clear that, if the chair of the EBA had been ousted like it was the case in G 1/21 it would not have been acceptable to see it sitting in a panel under Art 112a.
As you point out correctly this should have happened in R 12/22, but in that case no request for alleged partiality had been filed by the petitioner againt the chair. This is not an excuse for the chair of the EBA not deporting himself in R 12/22.
It does not help the credibility of the EBA when such double chairing occurs, but the president of the boards seems immune to this type of consideration, which has more to do with common or political sense, than legal niceties.
As far as G 3/19 is concerned, it was not a legal but a political decision. It is never good when an instance set up to decide on the interpretation of an international treaty decides for a “dynamic interpretation” of said treaty. Dynamic interpretation can vary with time and this is contrary to the need of certainty for the users.
Up to today, there is only one case in which the EBA rescinded one of its previous decisions. In G 1/84, OJ 1985, 299, the EBA ruled that the proprietor could oppose its own patent. Following G 9/91 and G 10/91, the EBA decided in G 9/93, OJ 1994, 894, that a European patent cannot be opposed by its own proprietor.
The worse is that this “dynamic interpretation”, does not even follow a decision of the CJEU but a memo from the Commission. If the interpretation of the boards of R 28 was problematic, then R 28 should have been amended and not a “dynamic interpretation” of the EPC produced by the EBA.
G 1/21.is as well a political decision. By limiting its application to the boards of appeal, the EBA simply ignored the EPC as it stands. I fail to see in Art 116 and in R 115 and R 116 a distinction between first instance deciding bodies and boards of appeal. The wording of those legal rules is abundantly clear and does not need interpretation according Art 31 VCLT.
Contrary to what the representatives of the president have been asserting repeatedly during the OP of G 1/21. the EPC cannot be amended by “secondary legislation”. I fail to see any legal basis for this allegation. The EPC can be amended by diplomatic conference, cf, Art 172, and the Implementing Regulations under Art 164, with the proviso of Art 164(2).
Even today there is no mention of OP by ViCo in the Implementing Regulations! That the EPO has to go with its time is not at stake, and ViCo should be offered to the users of the EPO, but not imposed!. In this respect, when holding OP by ViCo there is no obligation for the deciding body to sit together. This would however be a bare minimum. I have never seen a legal basis for this sitting apart. There is a huge difference between communicating by video and sitting together in the same location.
I can only repeat the need for a reform of the boards of appeal. Only the day the boards will be in a completely separate unit with its own budget, directly submitted to the AC, the possibility to decide on its own RoP and having the exclusive power of appointment or re-appointment that the boards will be truly independent. That the members of the EBA cannot be at the same time ordinary members of the LBA or the TBA goes without saying. This could be a good topic for a Conference of the Ministers as provided for in Art 4a.