T 1474/19 - Carrying out a debit order with a mind willing to understand

Key points

•  The appellant pays the appeal fee at the reduced rate by mistake. The appellant is a large company.
• The Board: "Neither point 5.1.1 nor point 5.4.1 nor any other provision of the ADA 2017 requires that a fee amount be specified in the debit order." 
• As a comment, the software prescribed in the point 5.1.2 of the ADA only permits sending a debit order if the amount is specified, as far as I know.
• " The board in T 152/82 held that "A debit order must be carried out notwithstanding incorrect information given in it if the intention of the person giving the order is clear."' 
• The Board summarises the case law: "Notwithstanding formal deficiencies, a debit order in line with the prescribed (from 1 December 2017 only: electronic) 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. appeal fee) from an identifiable account. No fee amount needs to be specified. On this basis, the EPO is authorised to and must debit the intended fee in the applicable, i.e. correct, amount." 
• " The considerable number of cases before the boards regarding the question of the "correct", i.e. applicable appeal fee, in particular cases where the "wrong" option was unintentionally selected in EPO Form 1038E, is a strong indication that these difficulties have effectively materialised" 
• " The introduction of the fee reduction for natural persons and entities referred to in Rule 6(4) and (5) EPC clearly aimed to maintain access to justice for these persons and entities and not to introduce a new admissibility hurdle for other appellants. However, exactly the latter seems to have happened, perhaps in part because of the design of EPO Online Filing, which might be somewhat prone to errors. As a result, fee payment may not be smooth in every case, and this may have severe negative implications for appellants and their legal positions. ... In any case, the fee payment procedure should not be to the detriment of appellants whose clear intentions might be obscured by a system which also does not warn them when an incorrect amount is indicated in the debit order." 
• " As explained in T 170/83, it is the receipt of the debit order which authorises the EPO to avail themselves, for the debit order's specified purpose, of funds already deposited with the EPO and which thus completes the payment.' 
• " Since no amount needs to be specified, the EPO has to execute a debit order for a particular fee, for which the purpose of the payment is clear, in accordance with its substance, even if no or an incorrect amount is given (see again T 152/82, Reasons 7). The EPO has to establish from the debit order, the other documents on file and the circumstances of the case, which fee the appellant intended to pay and what the applicable fee amount is for the payment to be valid. As far as the determination of the applicable amount is concerned, this is similar to how the EPO processes payments under the automatic debiting procedure" 
• In practice, the debit orders are of course automatically processed by the EPO computer systems. That's precisely why they must be filed in the specific "electronically processable format (XML)". 
• "Article 2(1), item 11, RFees does not make the amount dependent on the filing of the declaration referred to in Rule 6(6) EPC (see also T 225/19), but its presence in the file may enable the EPO to determine if entitlement to the reduction exists, as might common-knowledge circumstances, e.g. the appellant being a natural person.' 
• " Thus, the appellant's clear intention was to pay the appeal fee to file a valid appeal, the applicable amount being EUR 2 255. The debit order was received by the EPO on 11 April 2019, together with the notice of appeal. As there were sufficient funds in the deposit account on 11 April 2019, this is to be considered the (full) payment date " 
• " Thus, there is no need for the board to take a stand on the jurisprudence on correction via Rule 139 EPC, in particular whether correction of a debit order with retroactive effect on the date of factual payment is an option. Even if it were an option, if a case does not pass the hurdle of the clear intention to pay a fee, in accordance with the jurisprudence of T 152/82 on the basis of the debit order, it might also not qualify for correction under Rule 139 EPC." 

EPO T 1474/19 - 

The link to the decision is provided after the jump.

https://www.epo.org/law-practice/case-law-appeals/recent/t191474eu1.html