5.5.4 Due care in dealing with assistants
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According to the case law of the boards of appeal, where an assistant has been entrusted with carrying out routine tasks, such as typing dictated documents, posting letters and parcels and noting time limits, the same rigorous standard of care is not expected as is demanded of an applicant or his professional representative (J 5/80, OJ 1981, 343; see also J 33/90, J 26/92, T 43/96 of 5 July 1996 date: 1996-07-05, T 221/04 of 5 May 2004 date: 2004-05-05, T 1465/07, T 1663/12).
J 5/80 (OJ 1981, 343) is the key ruling in this regard. It established that a request for re-establishment of rights can be acceded to in the event of a culpable error on the part of the assistant, if the professional representative is able to show that he has chosen for the work a suitable person properly instructed in the tasks to be performed, and that he has himself exercise reasonable supervision over the work (see also T 191/82 date: 1985-04-16, OJ 1985, 189; T 105/85; T 110/85 of 10 September 1987 date: 1987-09-10; T 11/87 of 14 April 1988 date: 1988-04-14; T 176/91 of 8 April 1991 date: 1991-04-08; T 949/94 of 24 March 1995 date: 1995-03-24; T 221/04 of 5 May 2004 date: 2004-05-05; T 1149/11; T 1171/13).
The Legal Board further stated in J 5/80 that a representative cannot relieve himself of responsibility for carrying out tasks which, by reason of his qualification, fall upon him personally, such as, for example, the interpretation of laws and treaties. If a representative delegates such tasks to an employee and if the latter makes an error in the course of that work which results in the failure to observe a time limit, the representative cannot establish that he took all due care required by the circumstances (see also J 33/90 and T 715/91).
More recent decisions stress that responsibility in every respect passes to the representative as soon as he is presented with the file for processing, and that to that extent he is not justified in relying on an assistant's calculation of a time limit (see in this chapter III.E.5.5.4 e) "Ultimate responsibility of the representative"). For a case where an unrepresented individual applicant entrusted a third person with the payment of renewal fees and other administrative tasks, see T 555/08.
Regarding the burden of proof in the form of an adequately detailed statement in connection with the duty of care in the selection, instruction and supervision of assistants, see J 18/98.