Reimbursement of the appeal fee is ordered if an appeal is deemed not to have been filed because the appeal fee was not paid in due time in accordance with Art. 108, second sentence, EPC 1973. In this case, since the purpose of the fee cannot be achieved, the fee must be repaid without the board of appeal having to make any specific order to that effect (J 21/80, OJ 1981, 101; J 16/82, OJ 1983, 262; T 324/90, OJ 1993, 33 and T 239/92). However, in T 79/01, T 1289/10, T 1535/10 and T 2210/10, where the appeal fee had also been paid late, reimbursement of the appeal fee was not ordered (see T 1553/13, OJ 2014, A84). See also in this chapter IV.E.8.2.4.
In J 18/12 the Legal Board held that the final non-existence of the patent application in a substantive sense did not mean that the appeal proceedings had not come into existence (as opposed to the legal fiction of non-existence when an appeal was deemed not to have been filed). This situation regularly arose in proceedings before the EPO, e.g. where a decision of the Receiving Section not to accord a filing date was appealed.