Friday, 2 October 2009

T 857/06 - Assistants May Deliberate With the Boards

According to A 19(1), 2nd sentence, of the Rules of Procedure of the Boards of Appeal (RPBA), only members of the board may participate in the deliberations; the chairman may, however, authorise other officers to attend. [3]

The chairman’s discretion to authorise persons other than the members of the board to attend the deliberations is thus limited in an important manner: only officers of the EPO qualify as possible beneficiaries of the discretion. One of the reasons for this limitation appears to be that Article 20(1) of the Service Regulations for permanent employees of the EPO and Article 6(1) of the Conditions of employment for contract staff at the EPO impose a duty of confidentiality on officers of the EPO. They have to exercise the greatest discretion with regard to all facts and information coming to their knowledge in the course of or in connection with the performance of their duties, and they may not in any manner whatsoever use or disclose to any unauthorised person any document or information not already made public. In view of this general duty of officers of the EPO, the limitation of the chairman’s discretion to allow persons other than the members of the board to attend the deliberations guarantees compliance with the principle that deliberations are to be secret (A 19(1), 3rd sentence, RPBA). [3.1]

Since the assistant to the board is an officer of the EPO, the wording of A 19(1), 2nd sentence, RPBA ostensibly provides an adequate legal basis for allowing him or her to attend the deliberations. Nevertheless, it may be argued that, in view of the different terms used in A 19(1), second sentence, RBPA (“participate” and “attend”), a difference should be made between passive attendance of and active participation in the deliberations, and that the active participation of an assistant or of any person other than the members of the board should not be allowed. However, such an interpretation of A 19(1), 2nd sentence, RPBA is not compelling since the legislator may have used the term “attend” not in contradistinction to the term “participate”, but simply as a broader term encompassing it, thus giving the chairman the power to authorise the attending of EPO officers in different forms, i.e. not only as silent observers, but also as actively assisting the board during deliberations by asking questions and expressing thoughts. Since the secrecy of the deliberations prevents the parties or the public from knowing the course of the deliberations, a distinction between allowable passive attendance and unallowable active participation would appear to be rather questionable since it is not only necessary that justice is done but also that it is seen to be done (“doctrine of appearances”). Thus, if, for the sake of argument, it were procedurally improper to allow the active participation of any person other than the members of the board of appeal in the deliberations, this would also be a strong argument against allowing their passive attendance. [3.2]

[…] It emerges from the review [of positions taken in the jurisdiction of the Contracting States] that, notwithstanding a certain bandwidth of positions not uncommon in comparative legal analysis, the active involvement of assistants in preparing the ground for judicial decisions appears to be widely accepted. Furthermore, the rule that only the competent judges should be present during the deliberations is not generally adhered to without exceptions. In some jurisdictions (e.g. Germany), statutory provisions even explicitly allow the attendance of judicial assistants. [4.6]

The primary objective of a court should be to produce the best and most informed decisions. If, in order to reach this objective, the court considers it helpful to allow the attendance of an assistant in the court deliberations, it is appropriate to do so, within the limits of the relevant statutory provisions applicable in its jurisdiction. Notwithstanding the close collaboration of a board’s assistant with the members of the board, there is no delegation of responsibility in respect of genuine judicial activity. With or without the attendance of an assistant, the board members always retain the decision-making prerogative expressed in the act of voting, and there can be no reasonable doubt about who is in charge. [5]

The board concludes that discretion under A 19(1), 2nd sentence, RPBA is properly exercised if the board’s assistant is allowed to attend and to take part in the deliberations.[6]

Certainly not a must-know decision but thoroughly reasoned (bearing Mrs. Kinkeldey’s signature). I find the outcome surprising as I would have come to the opposite conclusion by taking Article 19(1) RPBA at what I believe to be its face value. Anyway, it is interesting to know that there may be more people deliberating on your case than you would have expected.

To read the whole decision, click here.