In T 308/05 the board ruled that the appeal fee was to be reimbursed even though the appeal had been withdrawn. The board referred to J 30/94 and J 38/97 (see below) and held that, in exceptional cases it was possible - outside the scope of R. 67 EPC 1973 - to consider refunding the appeal fee for reasons of equity. A refund had been ordered, for instance, in cases where the principle of the protection of legitimate expectations had been violated. The fact that in the case in point the EPO had been found to have breached the principle of the protection of legitimate expectations, and that the consequence had been the filing of an appeal which was objectively superfluous, made it necessary for reasons of equity to refund the appeal fee paid by the appellant.
In J 30/94 it took seven years for the appeal to be remitted to the board of appeal after the first-instance decision not to allow it. The board found a violation of the principle of the protection of legitimate expectations had occurred and ordered reimbursement of the appeal fee. In J 38/97 the appeal was found inadmissible but the appeal fee was nevertheless refunded. The board took the view that the appellant, having requested an appealable decision, could legitimately expect the impugned decision to be issued by the competent department and not by a person lacking legal authority. In accordance with the principle of good faith, it was equitable in these circumstances to order the reimbursement of the appeal fee.