2.2. Debit orders

Under Art. 5(2) and Art. 7(2) RFees the EPO makes deposit accounts available for the settlement of fees and costs of other services provided by the EPO (not, however, for the fees according to Art. 17 REE – see D 9/17). These are governed by the Arrangements for deposit accounts (ADA) and their annexes. The current version (Supplementary Publication 5, OJ 2017, 11; for amendments, see OJ 2019, A20) has introduced many changes in the use and management of deposit accounts; an overview is given in the accompanying Notice (Supplementary Publication 5, OJ 2017, 2; see also later Notice, OJ 2019, A21). In particular, debit orders may be filed only in an electronically processable format by an accepted means, and with that EPO Form 1010 has become obsolete (points 5.1.2, 5.1.3 and 5.2.4 ADA and Notice; see also T 590/18 in chapter III.A.1.2.1). It follows that some of the decisions in this section are now of limited application.

Already in T 152/82 (OJ 1984, 301) it was held that the EPO must execute a debit order in accordance with the substance of that order where the intention was clear, even though the amount specified was clearly incorrect (see also T 2035/14). This also applied where a national form was used in error, as in T 170/83 (OJ 1984, 605). A timely filed statement that a debit order for payment of a fee had been issued was itself considered such a debit order in the absence of any record of the original (T 17/83, OJ 1984, 306).

In T 1265/10 the board considered in the particular circumstances of the case that the crossing of Section X of the notice of opposition (EPO Form 2300) to indicate enclosure of a fee payment voucher (which enclosure, however, was not found at the EPO) was a declaration of the intention to pay the opposition fee. A debit order had to be unambiguously recognisable and show a clear and unambiguous intention to make a particular payment (T 170/83, OJ 1984, 605; T 152/82, OJ 1984, 301; T 152/85, OJ 1987, 191). As stated in T 170/83, an authorisation to be derived from the circumstances required that the authorising person (account holder) was known and clearly identifiable, and that certain fees due to the EPO for a known procedure were meant to be paid by the withdrawal from such account (and not in any other way). Following T 806/99, which was based on almost identical facts, the board found these conditions to be fulfilled. This was sufficient for payment of the fee.

However, in T 198/16 the board held that the statement in the electronically filed notice of appeal "The appeal fee is paid via the enclosed form 1010" (which form was not enclosed) was not a "clear, unambiguous and unconditional" debit order under point 6.3 ADA 2015, but a mere statement that such a debit order was supposed to be given.

In J 14/12 the question was whether for the renewal fees paid on a divisional application additional fees were also due. The board found that, for some of the renewal fees, a letter filed within the four-month period of R. 51(3), second sentence, EPC requesting (in general terms) debiting of the fees falling due with the filing of that divisional application was, when read in conjunction with the internal fee calculation sheet filed with the application, sufficient to fulfil the requirements for the content of a valid debit order (see point 6.3 ADA, version valid from 1.4.2009, Supplement to OJ 3/2009). Hence, those renewal fees were timely paid and additional fees were not due.

In case T 773/07, which concerned the Arrangements for deposit accounts in force until 12.12.2007 (Supplement to OJ 1/2005), the appellant's deposit account held insufficient funds to cover the appeal fee. The board rejected the argument that this fee could or should have been booked before six other fees on the relevant date. It was not for the EPO cashier to choose priorities between fees to be paid, all the more so since it was the responsibility of the account holder to ensure that the account contained sufficient funds at all times (point 5.2 ADA; see current points 5.2.1 and 5.2.2 ADA).

In T 871/08 of 23 February 2009 the opponent had indicated that the appeal fee would be paid by online debit order, but also requested that, if this was not done by one day before expiry of the Art. 108 EPC 1973 time limit, the Office should debit the fee. The board held that the payment of the appeal fee was exclusively the responsibility of the appellant or its representative, who could not discharge themselves by shifting the responsibility to the Office, let alone with a conditional order. However, in T 2364/12 a different conclusion was reached in the circumstances of that case.

It is to be noted that debit orders may now specify a deferred execution date (point 5.4.1 ADA).

As confirmed in T 270/00, if an automatic debit order is revoked after the decisive payment date for the appeal fee, this is too late to affect the payment. Valid payment of the appeal fee is a matter of fact, which cannot be undone and is not at the disposal of the appellant.

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