AMBA on the online user consultation – CA/16/15

The EPO has proposed a structural reform of the Boards of Appeal (BOA) in document CA/16/15. This proposal was initiated by decision R 19/12 and it aims at increasing the organisational and managerial autonomy of the Boards of Appeal, the perception of their independence and also their efficiency within the framework of the current EPC. The aim is also to take account of national, European and international developments aiming at enhancing the autonomy of the Judiciary and/or the efficiency.

In order to implement the aims set out in CA/16/15 and to prepare the relevant concrete provisions, the EPO launched an on-line user consultation to get input from the user community. Five questions have been asked.

  • Question A deals with rules concerning a possible conflict of interests and how the appointment/re-appointment procedures could be improved, in particular to attract more external candidates.
  • Question B asks for suggestions about the improvement of the BOA’s efficiency.
  • Question C asks for suggestions of improvements of the procedure before the BOA.
  • Question D makes reference to the envisaged Boards of Appeal Committee (BOAC) mentioned in CA/16/15 and asks whether the users should have a seat in it, whether this BOAC should carry out a survey concerning the general functioning of the BOA and whether this BOAC should make proposals for changes of the Rules of Procedure of the BOA.
  • Question E deals with the composition of the EBOA in review cases.

AMBA notes that these questions mainly focus on efficiency and how the procedure is conducted before the BOA and that the aspect of independence which was the trigger point for CA/16/15 is not addressed. None of the questions is directed to the envisaged structural setting of the BOA and whether the users consider this structure to safeguard the Boards’ independence.

CA/16/15 contains basically two new structural features:

  1. Delegation of powers of the President of the EPO to a newly created function of the President of the BOA. This President of the BOA will have managerial and organisational powers over the BOA with respect to their administration, management and work organisation.
  2. Constitution of a BOAC which is a subsidiary body of the Administrative Council (AC). Although it consists of four external members of the judiciary (and three members of the AC), it remains a body of the AC since the BOAC has to report to the AC and its members are nominated and appointed by the AC.

This BOAC has inter alia the following competences:

  • Giving guidance and setting objectives to the President of the BOA (point 17)
  • Setting general objectives for the BOA in handling the caseload and reducing pendency times (point 27)
  • Setting general targets and assessing the BOA general performance based on these targets (point 27)
  • Establishing performance and quality criteria (point 27)
  • Proposing rules for the organisation of the BOA’s work (point 26)
  • Proposing a code of conduct and internal instructions (point 26)
  • Proposing Rules of Procedure for the BOA and the EBOA and proposing general criteria for case distribution (point 27)
  • Proposing general criteria for selection, recruitment, and appointment of BoA members (point 29).
  • Defining criteria for re-appointment of BOA members which will take into account the quality and efficiency of the work of the BOA members (point 29).

With this structure, competences which the BOA had before, e.g. deciding on appointment procedures, adopting the Rules of Procedure and the Business Distribution Plan are shifted to the BOAC, i.e. in fact the AC. This is a worsening of the perception of independence over the present situation.

Additionally, managerial tasks and tasks which according to national, European and international standards clearly belong to the judicial self-governance are also shifted to the AC. Thus, the BOA are de facto managed by the AC. With this structure the BOA become dependent on an organ outside of the judiciary, i.e. the AC which apart from its legislative power also has a supervisory function over the Office and its President and thus has a close linkage with the Executive. This is in contrast to a clear separation of powers which is a basic principle in all European countries and which is of utmost importance for the acceptance of the European patent system.

Security of tenure and irremovability are key elements of the independence of judges. Making re-appointments of BOA members and chairmen dependent on the individual member’s quality and efficiency appraisals is in clear contrast thereto.

The BOA can only fulfil their task of deciding a case only on its merits, if their independence is sufficiently safeguarded and if they are free from outside influence, be it of the President of the EPO or of the AC.

In AMBA’s view the users should consider this aspect as well when taking part in the user consultation in order to meet both aspects which CA/16/15 wants to address, i.e. efficiency as well as independence of the BOA.