2.2. Debit orders

Under Art. 5(2) and Art. 7(2) RFees the EPO makes deposit accounts available for the settlement of fees and costs of other services provided by the EPO. These are governed by the Arrangements for deposit accounts (ADA) and their annexes (last published as a Supplement to OJ 3/2009).

Already in T 152/82 (OJ 1984, 301) it was held that the EPO must execute a debit order in accordance with the substance of that order where the intention was clear, even though the amount specified was clearly incorrect. This also applied where a national form was used in error, as in T 170/83 (OJ 1984, 605). A timely filed statement that a debit order for payment of a fee had been issued was itself considered such a debit order in the absence of any record of the original (T 17/83, OJ 1984, 306).

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, 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 here. This was sufficient for payment of the fee.

In case T 773/07, which concerned the Arrangements for deposit accounts in force until 12.12.2007 (Supplement to OJ 1/2005), 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 it was the responsibility of the account holder to ensure that the account contained sufficient funds at all times (point 5.2 ADA).

In T 871/08 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 (see now point 6.3 ADA).

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.

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