a) Interpretation of debit orders 

In T 1474/19 the board summarised the jurisprudence of the boards concerning the validity of a debit order submitted under the ADA. According to one line of jurisprudence (see (i) below), notwithstanding formal deficiencies, a debit order in line with the prescribed filing requirements has to be assessed on its substance, in view of the party's clear intention objectively expressed in the order to pay a particular fee (e.g. the appeal fee) from an identifiable account. No fee amount needs to be specified. On this basis, the EPO is authorised to and has to debit the intended fee in the applicable, i.e. correct, amount. Another line of jurisprudence (see (ii) below) takes a "more literal" approach in the interpretation of a debit order, putting more emphasis on the incorrect amount specified in the order. According to yet another line of case law (see (b) below), correction of a debit order under R. 139 EPC is possible under the requirements set by G 1/12.

(i) Substance of a debit order – clear intention to pay

The EPO's long-standing practice of correcting debit orders of its own motion dates back to T 152/82 date: 1983-09-05 (Debit order I, OJ 1984, 301), according to which a debit order must be carried out notwithstanding incorrect information given in it (here the wrong fee amount), if the intention of the person giving the order is clear (see headnote II.).

In T 17/83 date: 1983-09-20 (Debit order II, OJ 1984, 306) the board concluded, with reference to T 152/82 date: 1983-09-05, that if a submission to the EPO stated that a debit order for payment of a fee had been issued, this statement could, if need be, itself be considered such a debit order in the absence of any record of the original (see headnote). These decisions were followed by T 170/83 (Debit order III, OJ 1984, 605), which held that for payment by debit order the question was whether the EPO was authorised in due time to avail itself for a clearly specified purpose of funds deposited with it, notwithstanding formal deficiencies (here use of a national form in error). Applying the same approach, the board in T 152/85 (OJ 1987, 191) concluded that no document had been timely filed which could be construed as a debit order.

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 T 152/82 date: 1983-09-05, T 152/85). 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.

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 submission 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 former point 6.3 ADA, as published in Supplement to OJ 3/2009). Hence, those renewal fees were timely paid and additional fees were not due.

In T 1474/19, the appellant had filed a debit order using Form 1038E which specified a reduced amount of the appeal fee to which the appellant was not entitled (see also in this chapter III.U.5.2). The amount lacking was paid outside the time limit. Following T 152/82, the board concluded that the appellant's clear intention was to pay the appeal fee to file a valid appeal, the applicable amount (here) being the full amount of the fee. That an incorrect, i.e. the inapplicable, reduced amount was specified in the debit order was irrelevant to the question of validity of the payment. As there were sufficient funds in the deposit account on the date the debit order was received by the EPO, such date was to be considered the (full) payment date.

According to the board in T 1678/21, both T 152/82 and the summary of the subsequent case law endorsing it given in T 1474/19 could be followed, but only under the condition that it was known to a board from the file as it stood at the end of the appeal period that the appellant, at the point in time of authorising the debit of the reduced appeal fee, was not entitled to the reduction of the appeal fee under R. 6(4) and (5) EPC. As this condition was not met in the case in hand, the statements made by the appellant in the notice of appeal and Form 1038E could not be assessed as reflecting a clear intention to pay the regular appeal fee. See also b) below on the appellant’s request for correction under R. 139 EPC.

(ii) More literal approach

Some decisions have put more emphasis on the incorrect amount specified in the order. This has led to appeals being considered not validly filed (see e.g. T 17/83 and T 79/01).

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 (which required that the fee amount be specified in the debit order). It was rather considered to be a mere statement that such a debit order was supposed to be given, and thus payment made, by means of a different document, i.e. form 1010. Deviating explicitly from T 1265/10, the board held that the intention to authorise debiting of the deposit account did not already allow the EPO to act on such authorisation and carry out such intent where the EPO, under the deposit account system, already holds such money in trust. T 1000/19 also rejected the approach in T 1265/10 in view of the ADA 2017, which required a debit order to be filed in a specific electronically processable format. However, the board in that case favoured a correction under R. 139 EPC and concluded that the fee had been validly paid (see b) below).

In T 1060/19 the appellant had filed a debit order using EPO Form 1038E which specified a reduced amount of the appeal fee to which the appellant was not entitled (see in this chapter III.U.5.2). The amount lacking was paid outside the time limit. The board held that an express instruction to debit the full fee had only been given outside the appeal period, and no declaration of entitlement to the reduced fee had been filed (see also T 1222/19 and T 333/20).