Key points
- The Board, in translation: "the Board finds that, with regard to the basis for determining whether an undertaking is a micro, small or medium-sized enterprise within the meaning of Rule 7a(2)(a) and (b) EPC, which may file an appeal by paying the reduced appeal fee [under Article 2(1), point 11 of the Rules on Fees], an unintended gap exists following the amendments to the Implementing Regulations by decision of the Administrative Council CA/D 16/23 of 14 December 2023 (OJ EPO 2024, A3). In the Board's view, this gap should be closed in accordance with the repealed Rule 6(5) EPC, i.e., by the integral application of Recommendation 2003/361/EC."
- "SME status for a current financial year is derived from the last approved annual accounts for the previous year. Article 2 of the Annex to Recommendation 2003/361/EC provides no basis for a change in SME status during a financial year or for a retrospective loss of SME status."
- Rule 7a(6), which provides that "The eligibility criteria laid down in paragraphs 1 to 3 shall be fulfilled on the date of the payment of the fee concerned," must probably be interpreted accordingly.
- The Board notes " an error in the German version of Article 4(2) of the Annex to Recommendation 2003/361/EC, which refers only to "the headcount or financial ceilings stated in Article 2". However, the English and French versions, which refer to "the headcount or financial ceilings stated in Article 2" and "des seuils de l'effectif ou des seuils financiers énoncés à l'article 2" respectively, make it unequivocally clear that all the financial ceilings listed in Article 2(1) of the Annex to Recommendation 2003/361/EC must be exceeded before SME status is lost. This was not the case for the applicant in the 2024 financial year.
- "Apart from that, a company only loses its SME status if it exceeds the employee threshold and/or both financial thresholds in two consecutive financial years (Article 4(2) of the Annex to Recommendation 2003/361/EC). "
- "The category of micro, small and medium-sized enterprises (SMEs) comprises undertakings that employ fewer than 250 persons and either have an annual turnover not exceeding EUR 50 million or whose annual balance sheet total does not exceed EUR 43 million."
EPO
The link to the decision is provided after the jump.
