2.3.2 Formalities officers' powers in opposition proceedings

In opinion G 1/02 (OJ 2003, 165), the Enlarged Board examined the power of formalities officers to decide on the consequences of late payment of the opposition fee. Taking the view that T 295/01 (OJ 2002, 251) and T 1062/99 were divergent, the President asked the Enlarged Board to consider whether points 4 and 6 of the notice of the Vice-President of Directorate-General 2 of the EPO of 28 April 1999 (OJ 1999, 506) conflicted with provisions of a higher level (Referral by the President of the EPO, OJ 2002, 466). The Enlarged Board stated that the provisions of the notice were valid on the basis of R. 9(3) EPC 1973 (R. 11(3) EPC), under which formalities officers could be entrusted with duties falling to the examining and opposition divisions and involving no technical or legal difficulties. It therefore concluded that points 4 and 6 of the notice of 28 April 1999 did not conflict with provisions of a higher level.