G 0004/92 - Basis of decisions / Right to be heard - #19

Citation rank: 19
No. of citations: 166

G 4/92 is concerned with the question of whether or not a decision against a party which is absent from the oral proceedings can be announced at the end of the oral proceedings, if the decision is based on facts and evidence, such as documents, presented for the first time during the oral proceedings.

The case law regarding this question had been divergent:

Decision T 574/89 held that by choosing to stay away from oral proceedings the parties "had forfeited their right to present comments", and hence that "any arguments or evidence submitted by the parties present at oral proceedings" could "be used as a basis for the decision without it being relevant whether such evidence or arguments were already known to the absent parties from the written submissions or whether they could expect such evidence or arguments to be presented".

T 484/90, on the other hand, held that "a decision against a party duly summoned to but failing to appear at oral proceedings which is based on new evidence, such as a new document, on which that party has not had the opportunity to comment, may not be pronounced at the close of those proceedings without infringing that party's right to be heard, unless the absent party indicates that it is forfeiting this right".

When considering the answer to the question, the Enlarged Board firstly considered that the right to be heard, as implemented by Art. 113(1) EPC, was a fundamental right of parties to proceedings before the EPO (point 2 of the reasons).

The Enlarged Board secondly considered Rule 71(2) EPC1973 (now R. 115(2) EPC), which states that, if a party who has been duly summoned to oral proceedings does not appear as summoned, the proceedings may continue without the party. The Enlarged Board considered that no party should be allowed to delay the issue of a decision by failing to appear at the oral proceedings (point 4 of the reasons).

Thirdly, the Enlarged Board considered that a party should not wait until oral proceedings before presenting new facts or evidence that could have been submitted earlier. This would constitute an abuse of procedure which should be sanctioned by disregarding such matter in accordance with Article 114(2) EPC (point 7 of the reasons).

In weighing the above considerations the Enlarged Board came to the conclusion that a decision may be taken during oral proceedings, also in the absence of a duly summoned party, if the decision is not based on facts put forward for the first time during oral proceedings. The latter would infringe the absent party's right to be heard (Art. 113(1) EPC).

New arguments presented for the first time at oral proceedings were seen less critical. A decision could based on such new arguments, because arguments are not "grounds or evidence" as recited in Art. 113 EPC. Arguments are merely reasons based on the "facts and evidence " which have already been put forward (point 10 of the reasons).

---

Headnote:

1. A decision against a party who has been duly summoned but who fails to appear at oral proceedings may not be based on facts put forward for the first time during those oral proceedings.
2. Similarly, new evidence may not be considered unless it has been previously notified and it merely supports the assertions of the party who submits it, whereas new arguments may in principle be used to support the reasons for the decision.

The full text of the decision can be accessed here.

 Quotes from decisions citing G 4/92 can be found here.