T 0047/88 (Payment of fees) of 17.10.1988

Summary of Facts and Submissions

I. Mention of the grant of European patent No. 98 564 was published on 9 April 1986.

II. On Friday 9 January 1987 the first opponents (Opponents I) filed a reasoned notice of opposition to the grant of this European patent, paying the appropriate fee.

III. The appellants (Opponents II) also filed opposition on 9 January 1987. On the same day the appropriate fee was paid into a Düsseldorf post office by payment order and the amount entered a giro account held by the EPO on Monday 12 January 1987.

IV. On 3 April 1987 the formalities officer informed the appellants that the opposition was deemed inadmissible because the opposition fee had not been paid in due time.

V. In response the appellants submitted that the opposition fee should be regarded as having been paid on time because it had been paid into a post office in cash on 9 January 1987. A decision under Rule 69(2) EPC was also requested. In a further letter the appellants asked the Opposition Division to declare the opposition admissible, referring to the Legal Board of Appeal's Decision J 24/86 (OJ EPO 1987, 399).

VI. On 24 November 1987 the formalities officer ruled that the opposition was deemed not to have been filed. Decisions J 26/80 (OJ EPO 1982, 7), T 214/83 (OJ EPO 1985, 10) and J 24/86 (cited above) were interpreted in the reasons given for this decision as meaning that the date of payment into a post office could be considered as the date on which payment was made if it were proved that the payer could not revoke his order. In accordance with Section 24 of the postal giro regulations of the Federal Republic of Germany's Posts and Telecommunications a payment order could be cancelled by the remitter as long as the amount had not entered the payee's account. In the present case, therefore, the proviso whereby the payer must no longer be in a position to revoke his order was not fulfilled. The date to be considered as the date on which payment was made was thus the day on which the amount of the money order entered the giro account held by the Office, i.e. 12 January 1987. The opposition was deemed not to have been filed because the opposition fee had not been paid in due time.

VII. The appellants filed an appeal against the formalities officer's decision on 22 January 1988, paying the prescribed fee at the same time, and on 18 March 1988 filed a statement of grounds. The appellants request that the contested decision be set aside, arguing as follows:

(a) Modern means of communication would have enabled the post office to credit the EPO's giro account direct on the same day with the cash sum paid in at the post office counter. Since the post office was able to credit the amount immediately, the payment should be considered as a cash payment into the EPO's giro account.

(b) The contested decision assumed that under Section 24 of the German postal giro regulations a payment could in principle be cancelled up to the moment when the sum was actually credited to the payee's giro account.

Comparing this article of the German postal giro regulations with Italian or other provisions, the contested decision laid down that the date of payment in cash at a German post office - in contrast to the situation at an Italian or other post office - was not the date to be considered as the date of payment. This meant that different nationalities were treated unequally. Applicants or opponents could not be held responsible for differences in national postal giro regulations.

(c) The German postal giro regulations were governed by the German Civil Code, Section 130 of which stipulated that a declaration of intention becomes effective at the moment when it reaches the party concerned, even if the latter is a public authority.

Since the payment in question was not revoked, the declaration of intention became effective on the date of payment.

(d) Even though the order could in theory have been revoked, this would in reality have been impossible because it would have taken longer to process a written request for return of the remittance than to credit the payment to the EPO's giro account the following Monday.

VIII. The respondents request that the appeal be dismissed, reasoning that payment of the opposition fee into an EPO giro account is not a payment in cash under Article 8(1) of the Rules relating to Fees. The respondents also contest the appellants' submission that of all the postal giro regulations in force in the EPC Contracting States the ones that apply are those which are most favourable in a given case. This claim was not borne out by the law. The respondents also believe that the required written request for return of the remittance could have been received before the giro account was credited.

IX. The other party involved (Opponents I) made no response to the appeal.

Reasons for the Decision

1. The appeal complies with Articles 106 to 108 and Rule 64 EPC and is therefore admissible.

2. As explained in the formalities officer's decision, the cash payment at the post office in Düsseldorf on 9 January 1987 represented a "payment to a Giro account held by the Office" under Article 5(1)(b) of the Rules relating to Fees. The date to be considered as the date on which payment was made is therefore the day on which the amount of the payment order entered the Office's account (Article 8(1)(a) of the Rules relating to Fees).

3. The Boards of Appeal have interpreted Article 8(1)(a) of the Rules relating to Fees as meaning that the date of payment at a post office or bank where the Office holds an account is the date to be considered as the date on which payment is made so long as the payer can no longer revoke his order.

4. As explained in Decision J 24/86 referred to above, the question whether a payment can be considered as having been made in due time, having regard to the particular facts of a case, must be decided on an objective basis. The question is whether such facts create a situation which is legally equivalent to entry of the payment into the account.

5. In the case of Decision T 214/83 cited above the appellants had produced a declaration by the manager of the Milan giro office to the effect that the payment could not be revoked. Decision J 24/86, on which the appellants base their claim, refers to a letter signed by the "Inspecteur de direction" of the post office and stating that the payment could not have been withdrawn after the post office had closed at 5 pm on the day of payment.

6. In all the cases cited above the appellants had proved that there was no way in which they could have revoked their order, so the Board was able to decide that a situation existed which was legally equivalent to an entry of payment into the account. 7.In the present case the appellants have neither produced such evidence nor denied that in theory they could have revoked the payment. They have merely submitted that, since such revocation has to be requested in writing, it was unlikely that a request could have been granted before the amount was actually credited to the Office's account on Monday 12 January 1987.

8. In the absence of such evidence the Board can only conclude that, since the payment at the post office could have been revoked, the date to be considered as the date on which payment was made in accordance with Article 8(1)(a) of the Rules relating to Fees is the date on which the amount actually entered the Office's account (i.e. 12 January 1987). In particular, the Board is unable to take into consideration the fact that the post office could have credited the amount before any request for revocation had been processed. This would after all contravene Article 8(1)(a), which makes a clear distinction between the date of payment and the date on which the amount enters an account.

9. Nor does the Board agree with the appellants' submission that Section 24 of the German postal giro regulations should not be considered binding because it differs from equivalent requirements in other EPC Contracting States and the EPO ought to treat different nationalities equally. Firstly, postal giro regulations apply to all transactions carried out at a post office, no matter who carries them out. Secondly, ascertaining whether the payer is able to revoke his order so long as the amount has not yet entered an account is a purely objective procedure. What matters in the present case is not whether the EPO should apply the German postal giro regulations but whether the order could actually have been revoked on the basis of those regulations. The Board does not believe that establishing such facts would violate the principle of equal treatment.

10. Nor does the Board share the appellants' view that Section 130 of the German Civil Code applies, which stipulates that a declaration of intention takes effect at the moment at which it reaches the party concerned. Were it applicable, then the fact that the payer did not revoke the declaration of intention to credit the EPO's giro account - a declaration made by paying in the amount - would mean the declaration took effect on the date of payment. The provisions of the EPC are independent of the national laws of the Contracting States. Article 125 EPC stipulates that "in the absence of procedural provisions in (the) Convention, the European Patent Office shall take into account the principles of procedural law generally recognised in the Contracting States." Since Articles 5(1)(b) and 8(1)(a) of the Rules relating to Fees clearly contain procedural provisions, Article 125 EPC does not apply to the present case. Furthermore, Section 130 of the German Civil Code is not procedural law. In any case the Board doubts whether a payment order can be equated with a declaration of intention.

11. The Board therefore concludes that the formalities officer was right in deciding that the date to be considered as the date on which payment was made in the present case was that on which the amount of the payment order entered the Office's account, i.e. 12 January 1987. The appellants' opposition is therefore deemed under Article 99(1) EPC not to have been filed.

ORDER

For these reasons, it is decided that:

The appeal against the formalities officer's decision of 24 November 1987 is dismissed.