A conference is being held in Munich today to gather the opinions of users on the 2nd version of the draft new Rules of Procedure for the Boards of Appeal (RPCR) .
If we can notice some changes compared to the first version , the spirit remains unchanged.
This new project could be approved by the Board in March or June 2019, and come into force six months later.
In terms of transitional provisions , the new RPCR will apply to all pending appeals on the effective date. Only new sections 12 (4) to 12 (6) will not apply if the appeal submissions have already been filed, and the new section 13 (2) will not apply if oral proceedings have already been called.
In terms of records management :
– each Chamber will publish in advance a list of cases for which the oral proceedings should take place the following year (Article 1 (2))
– the 4-month time limit for replying to the appeal brief can not be extended (Article 12 (7))
– convocations to oral proceedings will be sent at least 4 months before, as well as a notification drawing attention to the important points to be discussed (possibly with a provisional opinion) (Article 15 (1))
– Decisions may be abridged with the express consent of the parties (Article 15 (7)) and should be sent within 3 months of the oral proceedings (Article 15 (9)))
Compared to the current RPCR, the changes that will have the greatest impact on the parties and their strategies, concern Articles 12 and 13, and their ” convergent approach ” at 3 levels.
As regards the first level (the start of the appeal, therefore the appeal and response), the parties must in principle limit their pleas to the motions, facts, objections, arguments and evidence on which the contested decision is based (Article 12 (2)). The primary purpose of the appeal is to reconsider the decision and not to re-examine it.
Any other means will be considered an amendment, to be justified, and will only be admitted at the discretion of the House (Article 12 (4)). It should be noted that a means validly raised and maintained at first instance will not be considered as an amendment even if it was not mentioned in the decision (for example, subsidiary requests filed but not discussed because the first instance right to a higher-ranked application or reasons not discussed because other reasons have previously flourished).
Inadequately reasoned grounds in the pleading or answer may also not be admitted (Article 12 (5)).
Article 12 (6) finally lists what will not normally be admitted, unless justified by a change of circumstances: the means not admitted at first instance, except in case of error of the latter when exercising its discretion, and the means that should have been submitted at trial or not maintained.
The principles of Articles 12 (4) to 12 (6) will also apply to the second level (modification of the pleas in relation to the commencement of the appeal – Article 13 (1)). At this level, late amendments must be justified and will only be admitted at the discretion of the Chamber (which will probably be more severe than at the first level). In particular, the Chamber will consider whether the amendments are prejudicial to the procedural economy and whether they at first sight meet objections without creating new ones.
At the third level (amendment after convocation to oral proceedings – Article 13 (2)), changes will only be allowed in exceptional circumstances to be convincingly justified.