Where is Haar and how did it get there? Observations on Geography while Waiting for G2/19

Is Haar Munich or is it Haar? A few weeks after one of the most unusual referrals to the Enlarged Board of Appeal (EBA) of the EPO, this Kat tries to take a step back to answer both: (1) why the highest judicial instance of the organization has to weigh in on a question of geography and (2) what arguments may guide the EBA’s decision. 

Looking carefully at the municipal border

The Referral

The unusual aspects of the interim decision, published under case number T 831/17 (available in German) and now pending before the EBA as G2/19, would warrant several Katposts. This one will only focus on the geography aspect.

After being summoned to oral proceedings at the building of the Boards of Appeal in Haar (a suburb near the city of Munich but a formally separate municipality), the appellant filed a request that the oral proceedings be held in Munich instead. Haar, as the appellant claims, is not mentioned in Art. 6(2) EPC (“The European Patent Office shall be located in Munich. It shall have a branch at The Hague”) and summoning parties to a location not foreseen by the Convention violates the parties’ right to be heard.

The Board of Appeal referred three questions to the Enlarged Board of Appeal, of which only the last will be discussed here: can the Board of Appeal conduct oral proceedings in Haar, when the appellant considers that the place of the hearing does not comply with the EPC and requests that the oral proceedings be held in Munich instead? 

Power of the EBA to Review Geography

This will not be the first time the EBA is being asked to review a question of where oral proceedings should take place. In R 13/14, relating to oral proceedings in examination, the appellant requested that the hearing take place in Munich instead of The Hague. The EBA indicated that there was a “general principle that the organisation of oral proceedings lies within the competence of the President and cannot be reviewed by the board of appeal pursuant to the principle of the separation of powers”.

This is not necessarily a sign that the EBA will decline to review the question now put before it. The Hague is a branch explicitly foreseen by Art. 6 EPC, but Haar is not. In addition, R 13/14 was about where examination should take place, while this case is about where an appeal should be heard. 

What happens in Haar does not necessarily stay in Haar

That the Boards of Appeal currently sit in Haar is a legacy of Benoît Battistelli’s tenure as President of the EPO. It was Mr. Battistelli who proposed to the Administrative Council to move the Boards of Appeal to Haar, which the Administrative Council enacted in 2016 [even Merpel’s insistence to leave the Boards in Munich did not help]. The official reason given, namely reinforcing the Boards of Appeal’s organizational and managerial autonomy by geographically separating the judges from the examiners, was dismissed by some who saw the move against the backdrop of the sometimes charged relationship between the Boards of Appeal and the President.

Was the move within the powers of the President and the Administrative Council? It could have been argued that this necessitates an amendment of the EPC. The Board of Appeal itself indicates in the referring decision that it “does not know the precise reasons that allowed the President to claim that moving the Boards of Appeal to a place outside the municipal borders of the city of Munich was compliant with the EPC”.

The question before the EBA involves the interpretation of the EPC: First, does “Munich” in Art. 6(2) EPC refer to the City of Munich or another (broader) geographical area? Second, if “Munich” refers to the city, does the Administrative Council have the power to relocate the Boards of Appeal to a location not foreseen in Art. 6 EPC? 

What does "Munich" mean?

With regard to the first question, the Board of Appeal suggests in the referral decision that “Munich” may refer not to the city, but to the administrative region ("Landkreis") of the same name, located to the east of the city and which contains the municipality of Haar. This argument is certainly creative, but it is unclear whether it withstands the interpretation of the EPC under Art. 31 of the Vienna Convention on the Law of Treaties (which the Boards of Appeal regularly refer to when interpreting the EPC). It seems an uphill battle to argue that “Munich”, understood “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, actually designates the Landkreis and not the city of this name. [Merpel observes that the same creative argument could solve the conundrum around the Agreement on the Unified Patent Court (UPCA) in spite of Brexit: Art. 7(2) UPCA provides that one section of the Court’s central division shall be in “London” – setting up a Central Division in London, France rather than London, UK may formally solve the problem, but it would unlikely be compliant with what the drafters had originally in mind.]

Art. 31(3)(b) of the Vienna Convention requires taking into consideration “[a]ny subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. One relevant “subsequent practice” under the EPC is likely the Hague branch itself, located in the municipality of Rijswijk, outside of the boundaries of the city of The Hague. Is one single case a "subsequent practice"? The lack of any challenge over a period of several decades to the location of this branch may in any event be interpreted as a sign that the locations mentioned in Art. 6 can be understood to be broader than just the municipal boundaries. 

The Haar coat of arms

How Broad are the Powers of the Administrative Council?

If Munich was understood to refer to the city only, it is doubtful that Haar would be in compliance with the EPC, given that the Administrative Council does not have the power to enact a rule that deviates from the EPC (as recently underscored by the Boards of Appeal).

Art. 7 EPC grants the power to the Administrative Council to create other "sub-offices […] for the purpose of information and liaison". The EPO actually operates sub-offices in Berlin, Vienna and Brussels. However, the Boards of Appeal are far more than a "sub-office" and they do not serve the purpose of "information and liaison". As a result, the powers of the Administrative Council to move the Boards to Haar could hardly be derived from this provision. 

Haar in other Jurisdictions

Treaties between other parties and statutes of other jurisdictions do not constitute means of interpretation under the Vienna Convention. Still, it is interesting to note that other jurisdictions have chosen to use broader definitions of geographical places, when necessary. The USPTO, located in Alexandria, VA, is bound by statute to be in the "metropolitan Washington, DC, area" (35 U.S.C. §1(b)) and the Parliament of the Republic of Ireland sits "in or near the City of Dublin" (Art. 15 of the Constitution of Ireland). Does it matter that the drafters of the EPC have refrained from using such broader terminology? The EBA, whose members currently work in Haar and who therefore may have skin in the game, will soon decide.