3.4. Fiction of fee payment in due time – fail-safe arrangement

If payment of a fee is considered not to have been made until after expiry of the period for payment, the period is considered to have been observed upon evidence that the payer took certain steps to initiate the payment within the period (Art. 7(3), (4) RFees, as amended with effect from 1 April 2020, see OJ 2020, A3 and e.g. T 315/19). There is no longer a surcharge under Art. 7(3) RFees (T 842/90, J 20/00, J 25/12 concern the former surcharge).

Art. 7(3), (4) RFees also apply to the payment of a renewal fee, because in effect the due date for payment of this fee marks the last day of a period (R. 51(1) EPC; R. 37(1) EPC 1973) during which this fee can be validly paid (J 20/00).

Art. 7(3) RFees does not apply to key dates after which payments reaching the EPO are affected by a fee increase (J 18/85, OJ 1987, 356).

Art. 7(3) RFees does not apply where payment is made through (or, as in this case, a transfer order is given to) a banking establishment which is not in an EPC contracting state, even if the bank has a subsidiary in a contracting state (J 10/20, citing T 401/97).

A period for payment may be deemed to have been observed within the meaning of Art. 7(3) RFees (cf. Art. 8(3) RFees 1973) even if the receipt of the funds after the expiry of the period is no longer attributable to the original transfer order, but to another payment transaction initiated in the meantime (J 7/08; see also J 22/85, OJ 1987, 455).