CLR III J 2.1 of self-recusation

In G 1/05 of 7 December 2006 (OJ 2007, 362) a member of the Enlarged Board of Appeal informed it that she ought not to be taking part in the referral, since one of the opponents in the underlying case was represented by the law firm in which her husband and her son were partners. The Enlarged Board noted that Art. 24(2) EPC 1973 served to safeguard the general principle of law that nobody should decide a case in respect of which a party might have good reasons to assume partiality, by obliging a board member to inform the board accordingly if he or she considered that he or she should not take part in a case for any such reason. This would prevent the circumstances underlying a notice of withdrawal from arising later in the proceedings and casting a shadow on the decision-making process or even the decision taken. If a member of a board of appeal in a notice of withdrawal under Art. 24(2) EPC 1973 gave a ground which could by its nature constitute a possible ground for an objection of partiality, that ground should normally be respected by the decision on replacement of the board member concerned because it could be expected that the member submitting the notice knew best whether or not a possible suspicion of partiality might arise.

In J 15/04, the board noted that board members' notices of self‑recusation did not automatically effect their final exclusion from the proceedings (see also R 2/15 of 21 October 2015). A notice of self-recusation only initiated the procedure under Art. 24(4) EPC 1973 but did not pre-empt the outcome of the decision to be taken. If one accepted that a notice of self-recusation would immediately and automatically exclude the member concerned, then the party's formal right to a hearing before a duly appointed member of the board as established by the EPC would be violated. The board stated that the grounds of possible partiality given by a board member in a notice of self-recusation should normally be respected by the decision. It could be expected that the member submitting a notice of self-recusation based on specific facts knew best whether or not a possible suspicion of partiality might arise. The public or a party should not suspect bias after a decision of a board of appeal finding no grounds of suspicion of partiality (see also T 584/09 of 1 March 2013).

In R 2/15 of 21 October 2015 the Enlarged Board held that in the case of a party's objection under Art. 24(3), first sentence, EPC (see in this chapter III.J.2.3) it had to be established that there was subjective partiality or at least an appearance of partiality (objective partiality). In the case of self-recusation, however, it was sufficient that an appearance of partiality was at least arguable in the circumstances of the case.

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