Members of the Boards of Appeal are only appointed for five years[1]. Re-appointment, whilst usual, is no more than an uncodified possibility. “They may be reappointed”. This is a rather unusual situation, life appointments being normal in most judiciaries.

CM/Rec(2010)12 does state that where recruitment is for a fixed term, decisions on re-appointment should be based on objective criteria, pre-established by law or by the competent authorities, and which, like selection itself, should be independent of the executive and legislative powers[2]. Again, it would be problematic for the BoAC to set such criteria for re-appointment.

As with the other tasks, the present system of customary re-appointment[3] has worked well for more than thirty years and has been recognised as evidence of the judicial independence of the BoA. Nevertheless, it provides only the weakest and least acceptable safeguard of independence. Its replacement by efficiency and quality criteria, would unmistakably tip the balance against both independence and security of tenure.

The proposal in CA/16/15 would allow the suspicion of extraneous factors affecting BoA decisions, which must be taken solely on the merits of the case. Moreover, security of tenure is a hallmark of independence, which the Burgh House Principles seek to guarantee. In our view, re-appointment should be the norm except in severe and exceptional circumstances. This should be set out in the Implementing Regulations to the EPC.

Disciplinary proceedings, or an appropriate procedure equivalent to that for removal, provide the appropriate route to sanctions if judges fail to carry out their duties in an efficient and proper manner[4]. Refusal of re-appointment should follow the same principles as removal of a BoA member during his or her term of office; it should not be used as a “simpler” solution with no proper means of redress. The BoA are in this respect not comparable with the Boards of Appeal of OHIM, since the latter are not a judicial instance, let alone a final judicial instance.


[1] Article 23(1) EPC.

[2] CM/Rec(2010)12, points 51, 44 and 46.

[3] See, CA/81/08, Procedure for appointment and re-appointment of members of the Boards of Appeal, section II.

[4] Recommendation CM/Rec(2010)12, point 69.