2. Payment of fees
Under Art. 5(2) and Art. 7(2) RFees the EPO makes deposit accounts available for paying fees to the EPO (not, however, for the fees according to Art. 17 REE – see D 9/17). They are governed by the Arrangements for deposit accounts (ADA) and their annexes. For the current version and accompanying notice, see Supplementary publication 4, OJ 2019; for amendments, see OJ 2020, A77 and OJ 2020, A78, OJ 2021, A26, A60 and OJ 2021, A61. Note that a revised version of the ADA is due to be published in 2022.
Payments from a deposit account are made by debit order, and most fees are paid by this method. Since 2017, debit orders submitted to the EPO must be filed in an electronically processable format by an accepted means (point 5 ADA). With that, the previous payment form EPO Form 1010 in particular has become obsolete (for more on debit orders that are invalid because submitted in another way or format, see point 5.1.3 ADA, Supplementary publication 4, OJ 2019, and decision of the President, OJ 2021, A26; see also T 590/18 of 4 July 2018 date: 2018-07-04 in chapter III.A.2.2.1, T 2575/19 and T 703/19). It follows that some of the decisions in this section are now of limited application.
The EPO's long-standing practice of correcting debit orders of its own motion dates back to T 152/82 date: 1983-09-05 (Debit order I, OJ 1984, 301), according to which a debit order must be carried out notwithstanding incorrect information given in it (here the wrong fee amount), if the intention of the person giving the order is clear (see headnote II.). See also the recent decision T 1474/19. In T 17/83 date: 1983-09-20 (Debit order II, OJ 1984, 306) the board concluded, with reference to T 152/82 date: 1983-09-05, that if a submission to the EPO stated that a debit order for payment of a fee had been issued, this statement could, if need be, itself be considered such a debit order in the absence of any record of the original (see headnote). These decisions were followed by T 170/83 (Debit order III, OJ 1984, 605), which held that for payment by debit order the question was whether the EPO was authorised in due time to avail itself for a clearly specified purpose of funds deposited with it, notwithstanding formal deficiencies (here use of a national form in error). Applying the same approach, the board in T 152/85 (OJ 1987, 191) concluded that no document had been timely filed which could be construed as a debit order.
In T 1265/10 the board considered in the particular circumstances of the case that the crossing of Section X of the notice of opposition (EPO Form 2300) to indicate enclosure of a fee payment voucher (which enclosure, however, was not found at the EPO) was a declaration of the intention to pay the opposition fee. A debit order had to be unambiguously recognisable and show a clear and unambiguous intention to make a particular payment (T 170/83, OJ 1984, 605; T 152/82 date: 1983-09-05, OJ 1984, 301; T 152/85, OJ 1987, 191). As stated in T 170/83, an authorisation to be derived from the circumstances required that the authorising person (account holder) was known and clearly identifiable, and that certain fees due to the EPO for a known procedure were meant to be paid by the withdrawal from such account (and not in any other way). Following T 806/99, which was based on almost identical facts, the board found these conditions to be fulfilled. This was sufficient for payment of the fee.
In J 14/12 the question was whether for the renewal fees paid on a divisional application additional fees were also due. The board found that, for some of the renewal fees, a letter filed within the four-month period of R. 51(3), second sentence, EPC requesting (in general terms) debiting of the fees falling due with the filing of that divisional application was, when read in conjunction with the internal fee calculation sheet filed with the application, sufficient to fulfil the requirements for the content of a valid debit order (see former point 6.3 ADA, as published in Supplement to OJ 3/2009). Hence, those renewal fees were timely paid and additional fees were not due.
In T 198/16 the board held that the statement in the electronically filed notice of appeal "The appeal fee is paid via the enclosed form 1010" (which form was not enclosed) was not a "clear, unambiguous and unconditional" debit order under point 6.3 ADA 2015, but a mere statement that such a debit order was supposed to be given (T 1265/10 distinguished in this respect). See also in this regard T 703/19 (payment of appeal fee via Online Fee Payment).
In early decision T 170/83 (OJ 1984, 605 – see above), the board observed that, because the running of deposit accounts fell outside the grant or opposition procedures, it was not governed by the correction provisions of R. 88, first sentence, EPC 1973 (cf. R. 139, first sentence, EPC). To make a payment was to perform an act, namely to make a given amount available to the EPO at a particular time (Art. 9(1), first sentence, RFees 1973; cf. now Art. 8, first sentence, RFees). A similar conclusion was reached in T 152/85 (OJ 1987, 191). However, R. 139, first sentence, EPC has been applied to correct an error in a debit order in some recent board of appeal decisions, since the above-mentioned introduction in point 5 ADA of stricter conditions for filing debit orders (see T 1000/19) and also in the context of debit orders which have mistakenly indicated the reduced rather than the full appeal fee (see chapter V.A.2.5.4).
In T 773/07 the appellant's deposit account held insufficient funds to cover the appeal fee. The board rejected the argument that this fee could or should have been booked before six other fees on the relevant date. It was not for the EPO cashier to choose priorities between fees to be paid, all the more so since under the ADA it was the responsibility of the account holder to ensure that the account contained sufficient funds at all times .
In T 871/08 of 23.2.2009 date: 2009-02-23 the opponent had indicated that the appeal fee would be paid by online debit order, but also requested that, if this was not done by one day before expiry of the Art. 108 EPC 1973 time limit, the Office should debit the fee. The board held that the payment of the appeal fee was exclusively the responsibility of the appellant or its representative, who could not discharge themselves by shifting the responsibility to the Office, let alone with a conditional order. However, in T 2364/12 a different conclusion was reached in the circumstances of that case. It is to be noted that debit orders may now specify a deferred execution date.
As confirmed in T 270/00, if an automatic debit order is revoked after the decisive payment date for the appeal fee, this is too late to affect the payment. Valid payment of the appeal fee is a matter of fact, which cannot be undone and is not at the disposal of the appellant. In relation to the revocation of an automatic debit order on its execution date see J 6/21.
- T 1678/21
Catchword:
1. From the company name of an appellant alone it can generally not be derived that the appellant does not meet the conditions of Rule 6(4,5) EPC in conjunction with European Commission Recommendation 2003/361/EC of 6 May 2003 for payment of the reduced appeal fee. This applies even where a company name is well-known. 2. Where it is not clear from the file at the end of the appeal period whether or not an appellant at the point in time of payment of the reduced fee meets the conditions of Rule 6(4,5) EPC, no clear intention to pay the regular appeal fee can be detected that under the principles of T 152/82 would entitle the EPO to ex officio debit the amount of the regular fee. 3. An appellant who gives a debit order for payment of the reduced appeal fee even though it clearly does not meet the conditions of Rule 6(4,5) EPC commits an obvious mistake in the meaning of J 8/80 and G 1/12. Such an appellant is imputed to have had the clear intention to pay the regular fee, reason why no evidence to prove this intention is required. 4. The exhaustive criteria to assess Rule 139 EPC are "principles" (a) to (c) of G 1/12, i.e. essentially those of J 8/80, points 4 and 6: (a) The correction must introduce what was originally intended. (b) Where the original intention is not immediately apparent, the requester bears the burden of proof, which must be a heavy one. The same applies, pursuant to J 8/80, point 6, where the making of the mistake is not self-evident. (c) The error to be remedied may be an incorrect statement or an omission. complemented by criterion (d) balancing of the public interest in legal certainty with the interest of the party requesting correction, with the factors (i.e. sub-criteria of this criterion) relevant to the specific case.
- T 71/21
Catchword:
Berichtigung der Erklärung betreffend die Methode für die Entrichtung der Beschwerdegebühr im Formblatt 1038 - Ermittelung der ursprünglichen Absicht bei der Auswahl der Zahlungsmethode, siehe Entscheidungsgründe 6.4
- T 1474/19
Catchword:
I. A debit order has to be interpreted on its substance, according to the (objectively) clear intention of the appellant expressed therein to pay a fee in the applicable amount.
II. Under the Arrangements for deposit accounts valid as from 1 December 2017 (ADA 2017), a debit order having the clear purpose of paying a particular fee (here: the appeal fee) authorises the EPO to debit that fee in the applicable amount.
- Annual report: case law 2022
- Summaries of decisions in the language of the proceedings