In cases where the original application has been withdrawn, refused or deemed to be withdrawn and is thus no longer pending, Art. 61(1)(b) is applicable, thus allowing the third party to still file a new European patent application in respect of the same invention (see G 3/92).
Source: http://www.epo.org/law-practice/legal-texts/html/guidelines/e/c_ix_2_2.htm
Date retrieved: 17 May 2021