The Enlarged Board of Appeal issued opinion G 1/18 on 18.07.2019 on the distinction between an appeal deemed not to have been filed and an inadmissible appeal (where the appeal fee was paid late and/or the notice of appeal was filed late, i.e. outside the 2-month time limit of Art. 108 EPC), and on the consequences of this. A news message was posted on the website of the Boards of Appeal on the same day. The complete decision became available online on 31.07.2019, and is at this moment only available in French. We cite the complete news message and some selected parts of the decision below.
The (former) President of the EPO has referred a point of law concerning the interpretation of Article 108 EPC to the Enlarged Board of Appeal: Lorsque la formation d'un recours et/ou la taxe de paiement ont lieu après l'expiration du délai de deux mois prévu à l'article 108 CBE, le recours est-il irrecevable ou réputé non formé, et la taxe de recours doit-elle être remboursée ? (Provisional translation of the question into English (source): If notice of appeal is filed and/or the appeal fee is paid after expiry of the two month time limit under Article 108 EPC, is the appeal inadmissible or is it deemed not to have been filed, and must the appeal fee be reimbursed?Provisional translation of the question into German (source): Wenn erst nach Ablauf der in Artikel 108 EPÜ vorgesehenen Frist von zwei Monaten Beschwerde eingelegt und/oder die Beschwerdegebühr entrichtet wird, ist die Beschwerde dann unzulässig oder gilt sie als nicht eingelegt, und muss die Beschwerdegebühr zurückgezahlt werden?). The question concerns the same issue as earlier referrals G 1/14 and G 2/14, which did however not lead to an answer due to the referral being considered inadmissible or because the underlying case ceased to be in existence.
T 1325/15, issued shortly after G 1/14 and G 2/14 proceedings were ended, could have been seen by some to answer the question, but at least one other Board did not follow it - a final decision/opinion by the EBA will settle the issue. Note that T 1325/15 wrote in r.35. "Both referral decisions concentrated on the meaning of Art.108, second sentence, which reads "Notice of appeal shall not be deemed to have been filed until the fee for appeal has been paid". In numerous decisions the BoAs had interpreted this provision as meaning that an appeal did not come into existence, i.e. the notice of appeal was deemed not to have been filed, if the appeal fee was not paid within the two-month time limit of Art. 108, first sentence. In a smaller number of deviating decisions, the boards of appeal dismissed the appeal as inadmissible where the notice of appeal was filed and the appeal fee paid after expiry of the time limit." Also, in r.41. "Art.108, first sentence, requires that notice of appeal be filed within two months of notification of the decision. If no notice of appeal is filed, then no appeal comes into existence. Although the position that R.101(1) means that a late-filed notice of appeal brings into existence an inadmissible appeal may be not unreasonable, in view of the general rule that no distinction is to be made between the late filing and the non-filing of a document, the Board considers that no appeal exists where a notice of appeal was not (deemed to be) filed in due time." and "r.42. The Board notes that its approach, although it has not always consistently been applied in the jurisprudence of the boards of appeal, is also in line with the reasoning in earlier decisions which have argued that an appeal is deemed not to have been filed where the appeal fee was paid in time but the notice of appeal was filed only after expiry of the two-month period of Art.108(1) (see in particular decisions J 19/90, r.1.2.2 and 4; T 445/98, r.1.2, 5, 6 and 7; and T 778/00, section V of the facts and submissions and point 6 of the reasons)."
It may also be worthwhile to consider the observation made in T 2017/12, r.3.1.1 (the decision that led to the referral G 2/14):“The leading decision is J 21/80. In this case the appeal fee had been paid late. The board held that, "En raison de l'inexistence d'un recours valable, le montant de la taxe de recours payée tardivement doit être restitué.' There is no further reasoning. The order, originally in French, contains the following statement: 'Le recours contre la décision de la Section de dépôt du 12 mai 1980 est considéré comme non formé." The English translation of this, "The appeal against the Decision ... is inadmissible", is incorrect, whereas the German translation is accurate: "Die Beschwerde ... gilt als nicht eingelegt."”
