2.2.2 Whether there has been a decision

Whether a document constitutes a 'decision' or not depends on the substance of its content and not on its form (J 8/81, OJ 1982, 10; see also J 26/87, OJ 1989, 329; J 13/92, T 263/00). The criterion of substance has to be assessed in its procedural context (T 713/02, OJ 2006, 267, R 4/18). A "decision" needs to involve a reasoned choice between legally viable alternatives (T 934/91, OJ 1994, 184). According to T 165/07, the decisive question was whether the document (communication by a formalities officer), when objectively interpreted in its context, could have been understood by its addressees as a final, i.e. not merely preliminary, and binding determination of substantive or procedural issues by the department ("organ") of the EPO which had jurisdiction ("is competent"). In J 12/19 the board shared this view, with the proviso that even a document issued by a department of the EPO that does not have jurisdiction may constitute a decision.

On this point, see also chapter III.K.3. "When is there a decision?"