In a number of recent decisions, the boards have observed that, under Art. 12(4) RPBA 2007, they generally have their own margin of discretion to admit on appeal facts, evidence and requests refused by a department of first instance in proper exercise of its discretion.

In T 556/13, the board took the view that the jurisprudence is not to be understood as meaning that the discretion conferred on the boards of appeal under Art. 12(4) RPBA 2007 is limited to such an extent that the board must generally hold inadmissible a request which had not been admitted into the proceedings by the opposition division by a correct discretionary decision. Thus, it is not ruled out that, in view of the particular facts and circumstances of a particular case, the board will not hold a request inadmissible, although it was rightly not admitted into first-instance proceedings by the opposition division. This may occur, for example, if the board is confronted with additional facts and different circumstances or with additional submissions made by a party in the appeal proceedings. Another example could be that the reasons for the contested decision themselves contain considerations which go beyond those which were relevant for the opposition division's discretionary decision not to admit a request.

In T 945/12 the board referred to some decisions where it was stated that in the case of a review of first-instance discretionary decisions a board of appeal nevertheless had to exercise its discretion under Art. 12(4) RPBA 2007 independently, giving due consideration to the appellant's additional submissions. In doing so, the board of appeal was not re-exercising the discretion of the department of first instance based on the case as it was presented then, but rather taking into account additional facts and different circumstances while exercising its own discretion under Art. 12(4) RPBA 2007 (see also T 2219/10, T 971/11).