There is no legal basis for requiring a declaration of eligibility for reduced appeal fee be submitted within the time limit for paying the appeal fee.

In T 0553/25, the Board found that there is no legal basis in the EPC for requiring a declaration of eligibility as a prerequisite for paying the reduced fee for appeal. The case arose when the Examining Division (ED) incorrectly informed an Appellant (A) that a declaration was required, leading to an unnecessary request for re-establishment of rights. 

Background

A, a natural person, filed a notice of appeal and paid the reduced fee for appeal provided for in RFees 2(1), item 11 and Art. 108 EPC. The ED informed A that a declaration of eligibility was required according to the Notice from the EPO dated 18 December 2017 (Notice), and that failure to provide such declaration would result in the appeal being deemed inadmissible. This led A to file a request for re-establishment into the time-limit for paying the appeal fee on 11 February 2025 which led the ED to remit the case to the Board. A then filed the grounds of appeal on 7 April 2025.

The Board's reasoning

The Board determined that the Notice introduces a formal requirement for the valid payment of the appeal fee without any legal basis in the EPC, and noted that the Office has no provision empowering it to adopt such regulations. RFees 2(1), item 11 simply defines who is eligible for the reduced fee by referring to Rule 7a(2)(a) to (d) EPC, but does not reference Rule 7b(1) EPC, which establishes declaration requirements in a different context.

The Board explained that Rule 7b EPC applies only to fees for patent applications up to grant and does not apply to the payment of the reduced fee for appeal. While a declaration might serve as evidence supporting payment of the reduced fee, the Office has no power to define what evidence the Boards is to accept as evidence, and even less to limit such evidence to a declaration. 

The Board found that the requirements of Rule 7b(1) EPC cannot be applied by analogy to payment of the reduced fees under Rule 7a(2)(a) to (d) EPC. 

The Board found that A, being a natural person within the meaning of Rule 7a(2)(c) EPC, was entitled to pay the reduced fee without requiring further proof, and that the appeal was properly filed within the time-limit.

Decision of the Board

The Board found the appeal admissible and determined that no rights were lost by the appellant. The Board ordered reimbursement of the fee for re-establishment of rights, as it was paid without legal reason. The Board invited the Examining Division to consider interlocutory revision according to Article 109 EPC.

The Board emphasized that appellants eligible for reduced fees under Rule 7a(2)(a) to (d) EPC are not required to file declarations of eligibility within the time limit under Art. 108 EPC, and that the EPO's notice requiring such declarations lacks legal foundation.

For the footer: Summary written by the NLO EPO Case Law Team