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This ES argument is plainly nonsense. If it were true, ES should reconsider its EPC membership, as if the EPO Boards of Appeal do not provide for a judicial review meeting the standards of Art. 6 ECHR, ES breached the ECHR by joining the EPC, as "if a State contracts treaty obligations and subsequently concludes another international agreement which disables it from performing its obligations under the first treaty it will be answerable for any resulting breach of its obligations under the earlier treaty".

The then European Commission of Human Rights has clearly decided that "given the procedural guarantees available before the EPO, any transfer of powers to the EPO which led to the German courts' refusal to deal with the matter, cannot be said to be incompatible with the applicant company's rights under the Convention.", see http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-4410#{"itemid":["001-4410"]} again started by Lenzing. The then European Commission of Human Rights had considered the EPC provisions on independence of the EPO Boards of Appeal before reaching the conclusion that the EPC appeal procedure is compatible with the ECHR.

While the judiciary character of the EPO Boards of Appeal thus cannot be denied, it is another issue that these Boards cannot refer questions on EU law (e.g. the Biotech directive) to the CJEU. That issue could easily be addressed by creating a new EPC Rule providing for the obligations for the EPO Boards of Appeal to refer questions on EU law to the CJEU, and to decide in accordance with the CJEU's response as regards the EU states' designations.

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