Under Art. 111(1) EPC, the boards, having examined the allowability of an appeal, decide on it either by exercising any power within the competence of the department which was responsible for the decision appealed or by remitting the case to that department for further prosecution.

Which of these two options the board chooses will depend on the specific facts of the case before it and is a matter for its discretion.

Under Art. 11 RPBA 2007, a board is to remit the case to the department of first instance if a fundamental deficiency is apparent in the first-instance proceedings, unless special reasons present themselves for doing otherwise; on this see chapter V.A.7.7.