T 0172/17 - No absolute prohibition of taking late-filed submissions into account

 Key points

• “Article 13(2) RPBA 2020 does not remove a Board's discretion to admit an amendment of a party's appeal case either. The obligation expressed by "shall" is qualified by "in principle", and it is also up to the Board to assess whether "exceptional circumstances" exist.”
• “in the Board's view, at no stage of the convergent approach under the RPBA 2020 is there an absolute prohibition of taking late-filed submissions into account.”

T 0172/17 - 

https://www.epo.org/law-practice/case-law-appeals/recent/t170172eu1.html

Although not specifically addressed in the proposed referral question, Article 13(2) RPBA 2020 does not remove a Board's discretion to admit an amendment of a party's appeal case either. The obligation expressed by "shall" is qualified by "in principle", and it is also up to the Board to assess whether "exceptional circumstances" exist. Moreover, under Article 114 EPC a Board may act of its own motion (paragraph 1) and may, i.e. has discretion to, disregard late-filed facts or evidence (paragraph 2). As the provisions of the EPC rank higher in authority than the provisions of the RPBA, the latter are to be interpreted in a manner which is in conformity with the former (cf. J 14/19, point 1.9 of the Reasons). This means that, in view of Article 114 EPC, Article 13(2) RPBA is to be interpreted as conferring a certain degree of discretion on the Board. This interpretation is also confirmed by the explanatory remarks on Article 13(2) RPBA 2020 (see CA/3/19, points 59 and 60, and the table setting out the amendments to the RPBA and the explanatory remarks), according to which the Board may decide to admit the amendment "in the exercise of its discretion". As to the criteria, the explanatory remarks say that "[a]t the third level of the convergent approach, the Board may also rely on criteria applicable at the second level of the convergent approach, i.e. as set out in proposed new paragraph 1 of Article 13".

Hence, in the Board's view, at no stage of the convergent approach under the RPBA 2020 is there an absolute prohibition of taking late-filed submissions into account.