J 0006/21 - Computer says no, Legal Board says yes

 Key points

•  According to the Examining Division, a fee was not paid (incidentally, the fee for restoration of the right of priority payable to the EPO in the regional phase).
• The issue is that automatic debit orders in six unrelated applications were revoked by the account holder on the same day as the filing of the debit order for the payment of the fee in the present case. Moreover, on the same day the account was replenished as well and fees for those other applications were deducted.
• “ [The automatic debit order] revocation notice was received at 15:23 CET. The electronic receipt confirming the revocation indicated that "[t]he automatic debit order for the following application [...] ceased to be effective on the date of receipt of your instruction revoking it." Seven application numbers were mentioned on this receipt notice. However, at this point in time, according to the competent EPO department, "the EPO system could not react in time to prevent debiting of fees". The fees relating to six of the seven application numbers were therefore debited on 2 June 2020”
• “the appellant was informed that the revocation took effect on the same date as the request for revocation was received. This information is in line with ADA, points 6.2. and 6.3: the execution date of the debit orders was 2 June 2020 and the notice of revocation was received on 2 June 2020. Only if the notice of revocation were received after the execution date, would it be not effective. Accordingly, the appellant could assume that the automatic debit orders, which were revoked on 2 June 2020, would not be executed on that day. Decisively, had the six (of the seven) fees, which pertained to these wrongly executed automatic debit orders, not been debited on 2 June 2020, the account would have contained sufficient funds for the debit order mentioned above under (b).”
• “In these circumstances, it must be deemed in the appellant's favour that the deposit account had sufficient funds for the relevant fee on 2 June 2020, so that this date is considered as the date on which the payment was made”
• As a comment, this decision illustrates that it is the Examining Division (or Receiving Section or Opposition Division) who decides whether payment has been made and hence whether the debit order was effective, not the EPO Accounting Department or the EPO computer systems. Even if the EPO computer systems do not process the debit order correctly and the amount is not actually deducted from the deposit account, the Examining Division can still decide that the fee was paid and in fact, it is the Examining Division who decides that the fee was not paid and hence the relevance act was not validly performed. That decision is appealable. 

J 0006/21 

link  under "read more"

https://www.epo.org/law-practice/case-law-appeals/recent/j210006eu1.html