T 0951/92 (Opportunity to comment) of 15.02.1995

I. In the context of the examining procedure under Articles 96 and 97 EPC, Article 113(1) EPC is intended to ensure that before a decision refusing an application for non-compliance with a requirement of the EPC is issued, the applicant has been clearly informed by the EPO of the essential legal and factual reasons on which the finding of non-compliance is based, so that he knows in advance of the decision both that the application may be refused and why it may be refused, and so that he may have a proper opportunity to comment upon such reasons and/or to propose amendments so as to avoid refusal of the application.

II. If a communication under Rule 51(3) EPC and pursuant to Article 96(2) EPC does not set out the essential legal and factual reasoning which would lead to a finding that a requirement of the EPC has not been met, then a decision based upon such a finding cannot be issued without contravening Article 113(1) EPC, unless and until a communication has been issued which does contain such essential reasoning. If a decision is issued in the absence of a communication containing such essential reasoning, Article 96(2) EPC is also contravened, since in order to avoid contravening Article 113(1) EPC it was "necessary" to issue a further communication (following decision T 0640/91, OJ EPO 1994, 918).