J 0016/96 - Competence to interpret

Key points

• Today, by way of exception, an old decision J 16/96 wherein the Legal Board sheds some light on the competence of the Administrative Council to take binding decision on the interpretation of legal provisions.
• The Legal Board: "Under Article 33 (1)(b) EPC, the Administrative Council of the European Patent Organisation is competent to amend the Implementing Regulations. However, the Convention does not expressly authorise the Administrative Council to take generally binding decisions on the interpretation of the Convention."
• As a comment, the phrase "however" in my view indicates that even though the AC is competent to amend the Implementing Regulations, this does not mean that the AS is competent to "take generally binding decisions on the interpretation of the Convention". In J 16/96, the interpretative decision at issue was a special decision (not laid down in the Implementing Regulations, but only in the minutes of the AC meeting) but the reasoning of the Legal Board appears to extend to the AC laying down binding decision on the interpretation of the EPC by amendment of the Implementing regulations.
• The Legal Board: "In the law of international organisations, it is a recognised principle that bodies competent to lay down internal law may claim a corresponding degree of competence to interpret that law". This appears to mean that the AC has a "degree to competence" to interpret the Implementing Regulations (since the AC is competent to lay down the Implementing Regulations). However, the cited passage does not support the position that the AC is competent to interpret the EPC Articles which are laid down (not by the AC, but) by the Diplomatic Conference (together with ratification).  
• The AC decision at issue (to be found in the minutes of the 4th AC meeting, according to the Legal Board J16/96; these minutes are secret as a far as I know) concerned "the interpretation of the provision of Rule 101(9) EPC [1973] [ R.152(11)]"
• The Legal Board: "In so far as the decision on a matter of interpretation - as in the present case - concerns a provision of the Implementing Regulations, the Administrative Council acted within the scope of its authority." So, the AC was competent to interpret Rule 101 EPC 1973. 

J 0016/96 - link

2.1 Under Article 33 (1)(b) EPC, the Administrative Council of the European Patent Organisation is competent to amend the Implementing Regulations. 
However, the Convention does not expressly authorise the Administrative Council to take generally binding decisions on the interpretation of the Convention.

In the law of international organisations, it is a recognised principle that bodies competent to lay down internal law may claim a corresponding degree of competence to interpret that law (see Seidl-Hohenveldern, Das Recht der Internationalen Organisationen (...), 5th ed., p. 233, No. 1614). 
In so far as the decision on a matter of interpretation - as in the present case - concerns a provision of the Implementing Regulations, the Administrative Council acted within the scope of its authority. The appellants have not disputed this.