1.6. Fees

Under Art. 105(2) EPC in conjunction with Art. 2(1) No. 10 RFees, interveners must pay the opposition fee (see R. 89(2), second sentence, EPC).

Where a party intervenes only at the appeal stage, several decisions have stated that no appeal fee need be paid if the party is not seeking appellant status in their own right (see T 27/92 date: 1994-07-25, T 684/92, T 467/93, T 471/93, T 590/94, T 144/95, T 886/96, T 989/96, G 3/04 (OJ 2006, 118)). In T 1011/92 and T 517/97 (OJ 2000, 515) the board ruled that an intervener must pay the appeal fee if they want to have their own right to appeal proceedings, in the sense that they can continue such proceedings if the original appellant withdraws their appeal (see in this chapter III.P.2.). However, in T 144/95, where an intervention was filed during appeal proceedings and an appeal fee paid, the board ordered the appeal fee to be refunded (at the request of the intervener). See also T 2597/22. According to the board, under Art. 107 EPC 1973, an admissible appeal could only be filed by a party who was already a party to the proceedings leading to the decision and who was adversely affected by it. Where the intervention was filed during appeal proceedings, the intervener could not satisfy these conditions, and, referring to G 1/94, OJ 1994, 787, could not be considered as an appellant (but rather an opponent). The act of paying an appeal fee, which is one of the conditions for an admissible appeal, did not change this position in any way. The board then added that, whilst Art. 105 EPC 1973 provided an exception to the time limit for payment of the opposition fee under Art. 99 EPC 1973, no such exception was made concerning the appeal fee. However, see referring decision T 1286/23 where the board explained that if it were found that an intervener could be entitled to appellant status, it would appear logical that the payment of an appeal fee would also be necessary if the intervener wanted to make effective use of their entitlement.

In G 3/04 (OJ 2006, 118) the Enlarged Board held that there was no legal basis for demanding the payment of the appeal fee by an intervener in appeal proceedings. Fees paid by way of precaution but without a legal basis were reimbursed.