The Boards of Appeal are part of the structure of the European Patent Office. Having been established as Directorate General 3, they were one of the original five DG’s of the EPO.
Despite the fact that over the years several external courts have opined that the Boards of Appeal fulfilled at least the minimum standards to guarantee their judicial independence, several rounds of discussions have taken place on the position of the BoA within the European Patent Organisation and how their institutional independence can be improved.
First attempt, 1996-2004
In April 1996, the President of the office called up a working party to establish whether the independence of the members of the Enlarged Board of Appeal and the Boards of Appeal should be safeguarded by means of legal measures and/or be made more apparent, particularly with respect to the outside world. After a series of discussions, within the office, the Administrative Council and externally, the President of the Office submitted a draft basic proposal for amending the EPC making the Boards of Appeal an independent administrative unit within the European Patent Organisation. In June 2004 the Administrative Council decided not to have the necessary Diplomatic Conference but this question should be on the agenda of such a conference when it was to take place.
More here
August 2009: AMBA published a position paper supporting the project of organisational autonomy
April 2014: Decision R19/12
The Enlarged Board of Appeal decided that the Vice President DG3 was to be recused from a petition for review case on suspicion of partiality because of his continuing connection with the EPO management.
December 2014: a member of the Boards of Appeal is suspended from service and banned from the premises on orders from the President of the Office.
See “Chronology of the case against Mr C“
Reform of the Boards of Appeal, 2015-2017
In February 2015 the office published a proposal for a reform of the Boards of Appeal, which stated as its goals to increase their organisational and managerial autonomy, the perception of their independence and also their efficiency. It proposed a new function of the President of the BoA, to whom managerial and organisational tasks will be delegated by the President of the Office. It also proposed creating a BOA Committee (BOAC) as a subsidiary body of the AC with advisory and preparatory functions.
The proposal was met with many reactions, both externally and internally, pointing out that several of its aspects were not suitable for achieving the stated goals. Alternative joint proposals were submitted by the Presidium and the AMBA. In the end, the final proposal for the reform, adopted by the AC in June 2016 was not significantly different from the initial one.
More here.
February 2023: The German Consitutional Court (Bundesverfassungsgericht) decided that
AMBA 