In some early decisions, the boards took the view that facts, evidence and requests that a department of first instance had already decided not to admit in a proper exercise of its discretion should normally not be admitted on appeal either.

In T 267/03, for example, the board held that, where the opposition division had properly exercised its discretion in deciding under Art. 114(2) EPC 1973 not to admit a late submission, the boards were generally bound to refuse its admission on appeal too (see also T 927/04).

The board in T 28/10 held that the findings in G 7/93 (OJ 1994, 775) on reviewing discretionary decisions were of general relevance and so to be borne in mind when applying Art. 12(4) RPBA 2007. Accordingly, the board had to confine itself to reviewing the opposition division's exercise of discretion in deciding not to admit late-filed submissions and set aside its decision only in the event that it had done so improperly. It would otherwise undermine the discretion conferred on the opposition division under R. 116 EPC (see also T 2102/08, T 484/11).