G 1/21 - We have a new Chairman

Does an order made by the replaced chairman to hold oral proceedings as a video conference cease to have effect upon such replacement?

Not quite quick enough to make the EPO President pause for thought before extending (to 31 Jan 2022) the "pilot program" for VICOs in opposition. https://www.epo.org/law-practice/legal-texts/official-journal/president-notices/archive/20210520.html The EBA's confirmation that water is wet (ie that the Chairman should be excluded on the grounds of suspected partiality) raises an important question about why the Chairman did not recuse himself from the entire proceedings. Did he really think that he might be able to continue? Sadly, I think that we can conclude that he probably did think this. This is because he appears to have made last-minute, token efforts towards an appearance of impartiality, namely he: "refrained from presenting CA/5/21 or discussing the proposed amendment of the RPBA during the meeting of the Administrative Council on 23 March 2021 where the proposal for Article 15a was discussed"; and "did not make any comments, be it internally or publicly, on the referral G 1/21". This suggests to me either a lack of understanding of the legal principles underpinning the independence of the judiciary or, more likely, a desire to continue as Chair of the EBA despite the obvious problems of partiality (ie where he would be effectively deciding whether his own actions were in accordance with the EPC). Either way, this is not a good look for the President of the Boards of Appeal.

The pressure had really become too great, but the job was only half done. Given the overwhelming evidence it was difficult for Mr J. to be retained. That Mr B was exchanged was as necessary as exchanging Mr J. To claim that the two members of the Presidium, Mrs R and Mr E, were only consulted and therefore cannot be suspected of bias is a mockery. It also remains that the sword of Damocles of non-reappointment as a member of the BA is a good instrument helping to flex some spines that should not be underestimated. I hope that the members of this EBA will have the courage to resist the pressure as those who dared resist the previous EPO President when he trampled on the separation of powers. We must not forget that the issue to be discussed goes far beyond the BA. It is the whole New Normal that Napoleon's 4th worthy successor wants to establish that is at stake.

I cannot but agree with Concerned Observer about the behaviour of the president of the BA in this whole affair. It is tragic to see a person having been a judge himself to behave as he did. Whatever the outcome of G1/21 will be, his authority will have been severely damaged. He should resign should he have some self respect. But would the BA would be better managed should Mr.B take over? Even the perception of independence of the BA has been shattered by now! A real independence has never existed. Let’s hope that not only G 3/19 but also G 1/21 will be brought to the attention of the German Federal Constitutional Court when it will take a decision on the independence of the BA.