D 0010/02 (European qualifying examination) of 11.11.2002

Summary of Facts and Submissions

I. The appellant sat the European qualifying examination for the first time in 2001, and in accordance with Rule 4 of the implementing provisions to the Regulation on the European qualifying examination (REE) was awarded the following marks and grades:

Paper A: 44, FAIL Paper B: 60, PASS Paper C: 48, COMPENSABLE FAIL Paper D: 60, PASS

In a communication dated 27 September 2001 the appellant was notified of the Examination Board's decision of 19 September 2001 that he had failed the qualifying examination.

II. On 5 November 2001 the appellant filed a notice of appeal against the Examination Board's decision of 19 September 2001 and paid the appeal fee by bank transfer.

III. The appellant requests

- that the impugned decision be set aside and the appellant declared to have passed the 2001 European qualifying examination as a whole,

- auxiliarily that Paper A be marked by a fourth examiner,

- that the appeal fee and the enrolment fee already paid for 2002 be reimbursed.

IV. At the request of the Disciplinary Board of Appeal the Examination Board by letter of 8 October 2002 stated the following:

- The final mark for a paper was not simply the average of the marks awarded by the two examiners, but was the result of a discussion between the examiners. Marks for individual sections, especially for "independent claims" in Paper A, could also be a factor.

- Where examiners were unable to agree on the marking, the committee had to take action to resolve the conflict. That might for example involve other committee members marking the paper.

- If a third examiner was appointed, the mark he or she awarded was always taken into account, regardless of whether it was better or worse than that awarded by the two original examiners.

V. Both the President of the EPO and the epi President were invited to comment on the appeal.

VI. On 11 November 2002 oral proceedings took place before the Disciplinary Board of Appeal, with both the appellant and a representative of the President of the EPO in attendance.

VII. The appellant's statement of grounds may be summarised as follows:

- The two original examiners had awarded him 44 and 45 marks for Paper A. They had then been joined by a third examiner, who had awarded him 43 marks. As a result he had been awarded a FAIL. With 45 marks he would have got a COMPENSABLE FAIL, and under Rule 5 of the implementing provisions to REE 1994 he would have had to be declared to have passed the examination, as he had satisfied all the other conditions of that rule.

- There was no legal basis for appointing a third examiner. Article 8(b) REE referred only to a marking by two committee members. If it was considered necessary to appoint further examiners, the paper should be marked by two additional examiners, as suggested by the presence of four columns on the marking sheet. It was also apparent from the sheet that the two extra examiners had to be appointed at the same time, which ruled out merely appointing a third examiner.

- Lacking any legal basis, the act of appointing a third examiner constituted a substantial procedural violation. Hence he had to be declared to have passed, as the marks of the two original examiners averaged 44.5, which would have to be rounded up in the usual way to 45.

- If the Disciplinary Board were unable to declare him to have passed, he was entitled to have his paper marked by two further examiners.

- The basis for his request for reimbursement of an enrolment fee was that if he had already passed in 2001 he would have had greater earnings potential as a professional representative.

VIII. At the oral proceedings the President's representative essentially argued as follows:

- In all, there were three Article 4 REE examination committees, one for Papers A and B together and one each for Papers C and D. For chemistry and electronics/mechanics there were alternative Papers A and B. Accordingly there were two sub-committees for Papers A and B, performing the same functions as examination committees. Each committee had at least 30 members. Committees had to satisfy the Article 4 REE requirement for equal numbers of EPO employees and epi members, but the two or more examiners marking a paper could all be from the EPO only or from the epi only.

- It was true that neither the REE nor its implementing provisions said anything about calling in further examiners beyond the two prescribed by Article 8(b) REE; but Article 7 REE allowed the Examination Board to exercise a certain amount of discretion. That applied to the entire conduct of the qualifying examination, and included the power to decide to appoint a third examiner in borderline cases or to take further actions.

- A mark of 45 did not automatically mean a grade of COMPENSABLE FAIL under Rule 5 of the REE implementing provisions. In the light of the discretionary provision in Rule 4(4) ("can be considered"), the examination committee could even then propose a grading of FAIL to the Examination Board.

- The Examination Board was not bound by the examination committee's proposal or award of marks. As the Examination Board had already replied when questioned by the Disciplinary Board of Appeal, in the present case it was evidently the result for the 'Independent claims' section that had led to the award of the FAIL grade; and that section had probably also been the reason for the decision to appoint a third examiner.

Reasons for the Decision

1. The appeal is admissible.

2. As far as is relevant to the present decision, under Article 7 REE the Examination Board has the following powers:

It conducts the qualifying examination, giving the members of the examination committees the necessary instructions, examining the drafts of the examination papers and making the final selection of the texts (Article 7(1) REE). Further, when the candidates' papers have been marked, it takes note of the grades proposed to it by the examination committees, determines the grades for each paper and decides whether a candidate has passed or failed (Article 7(3) REE). Lastly it also has the power to draw up implementing provisions to the REE (Article 7(6) REE).

Under Article 8(b) REE, the examination committees are responsible for marking the answers to the examination papers, each answer being marked separately by two committee members (the "examiners"). The committees are then also responsible for submitting the answers to the Board with proposals for the grades to be awarded (Article 8(c) REE).

3. These powers indicate that the Examination Board is indeed granted discretion over the entire conduct of the examination, including the power to take further actions.

4. However, this does not mean that the Examination Board is free to make any arrangement without a basis in law, particularly since it expressly has the power to draw up implementing provisions.

5. One of the fundamental principles of a fair procedure is legal certainty, ie the right of parties to a procedure to know its ground rules in advance. Under Article 8(b) REE the answer to each paper must be marked separately by two examiners. Neither the REE nor its implementing provisions regulate the procedure to follow in the exceptional cases where a committee is unable to agree on the marking. Nor do they provide for calling in an additional examiner. Yet those are the very cases in which an express provision would be needed for a candidate to satisfy himself that his paper has not been marked arbitrarily or the procedure influenced by irrelevant circumstances.

6. Hence the appointment of a third examiner without any basis in the REE or its implementing provisions must be deemed a substantial procedural violation. When a third examiner is appointed, as a committee member he is already aware that there have been problems with the marking, and that alone might influence him, and all the more so if he knows what marks the first two examiners have given. This is a further reason why such action must be deemed in breach of fundamental principles of fair procedure.

7. Under the currently applicable provisions, in order not to make the marking procedure too complicated and time-consuming, it would for example be conceivable for the committee first to use the marking of the first of the two examiners as the basis for its discussions and then to refer to the second examiner's marking if it fails to agree on a mark and a proposed grade. In that case the second examiner should not have sat on the committee when it first discussed the matter with the first examiner.

This would avoid both a third examiner and the objection that the second examiner had already been influenced by the preceding discussion.

8. Amending Article 8 REE to accommodate such a simplified but predictable procedure does not seem necessary to the Disciplinary Board of Appeal; but an amendment would be necessary to accommodate the appointment of more than the two prescribed examiners. In any case it is not sufficient that recourse to two further examiners is merely suggested on the marking form so long as more specific conditions and rules of procedure for doing so are absent.

9. To enable a candidate to establish that a third examiner has not been appointed arbitrarily, any such provision would have to define both the conditions for the examiner's appointment and the significance of his marking in terms of the examination as a whole.

10. Thus the appellant's request that the impugned decision be set aside must be allowed. However, the Board cannot allow the main request, because the nature of the substantial procedural violation is not such that it is directly correctable, not being due to a miscalculation or a similar error. It is not clear that either one of the two original examiners or the third examiner has made an error so obvious that it could be identified without re-opening the marking procedure.

11. Hence the Disciplinary Board of Appeal refers the matter back to the Examination Board for review of the grade for Paper A. In doing so it is aware that the appellant has passed the 2002 qualifying examination, so that such a review might seem redundant. Yet from the appellant's viewpoint the year in which he could have been added to the EPO's list of professional representatives is not irrelevant.

12. In having the grade for Paper A reviewed, the Examination Board must disregard the fact that the third examiner has marked it, and how. Furthermore, in view of the principle of the impartiality of the members of a decision-making body it seems necessary that the third examiner should not be a member of the committee convened to discuss and decide on the final grade to be proposed to the Examination Board under Article 8(c) REE.

13. The request for reimbursement of an enrolment fee cannot be allowed, for want of a basis in law. However, since the paper has been referred back for review, the request for reimbursement of the appeal fee is equitable.

14. As the matter is being referred back to the Examination Board, the Disciplinary Board of Appeal does not need to consider the auxiliary request. However, the reasons and conclusions it has given above would also apply to a fourth examiner.

ORDER

For these reasons it is decided that:

1. The decision under appeal is set aside.

2. The request that the appellant be declared to have passed the 2001 European qualifying examination is rejected.

3. The case is referred back to the Examination Board with the instruction to take a decision pursuant to Article 7(3) REE on the basis of the marking of the two original examiners for Paper A 2001.

4. The appeal fee is reimbursed.

5. The request for reimbursement of an enrolment fee is rejected.