D 0002/88 (Reimbursement of the appeal fee) of 15.9.1988

Summary of Facts and Submissions

I. The appellant sat the seventh European Qualifying Examination in 1986. On 19 January 1987 he filed appeal No. D 02/87 against the decision of the Examination Board for the European Qualifying Examination dated 18 November 1986 which ruled that he had not passed that examination.

II. The decision regarding that appeal was deferred, as the appellant sat the eighth European Qualifying Examination in 1987. On 23 January 1988 he filed appeal No. D 02/88 against the decision of the Examination Board dated 17 November 1987 which ruled that he had not passed that examination either. At the same time he requested inter alia that the proceedings be consolidated.

III. The rapporteur pointed out to the appellant in a communication that there was very little possibility of the Board of Appeal setting aside the contested decision. In the case of appeal No. D 02/87 two examination papers were awarded the mark "5" and one was awarded a "6". Under Article 12(3) of the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office (OJ EPO 1983, 282; hereinafter "REE") in conjunction with No. VI of the Instructions to the Examination Committees (OJ EPO 1983, 296; hereinafter "Instructions"), this means that he had in any case not passed the examination on account of this marking pattern and a borderline-case decision by the Examination Board in accordance with the REE was not necessary. As no abuse of discretion could be perceived in the marking of the individual papers, it was not possible for the Board to set aside the contested decision and refer the matter back to the Examination Board for the papers to be re-marked. In the case of appeal No. D 02/88, a borderline-case did exist as a result of the better marking pattern (see Instructions No. V) but the borderline-case decision issued likewise gave no indication of an abuse of discretion. The reasons given by the Examination Board were also, with regard to Decisions D 01-03/86 (OJ EPO 1987, 489) and D 03/87 (OJ EPO 1988, 271) sufficient to enable an infringement of the REE and an abuse of discretion to be ruled out in view of the individual marks awarded.

IV. On the strength of this interim communication the appellant withdrew both appeals. He maintained his requests for reimbursement of the appeal fees and in the alternative requested reimbursement in part of these fees.

Reasons for the Decision

1. The admissible appeals have been settled in the main issue through their withdrawal. Only the decision on the reimbursement of the fees for appeal is still pending. Following settlement of the main issue such a decision can also be issued separately (as was last the case with J 12/86, "Shell cutter/LINVILLE", Reasons No. 5, not published). For the purpose of deciding on this question, appeal proceedings D 02/87 and D 02/88 are to be consolidated in accordance with Article 11 of the "Additional Rules of Procedure of the Disciplinary Board of Appeal of the European Patent Office" (OJ EPO 1980, 188), especially as the appellant has actually already requested that they be consolidated.

2. The rule governing the reimbursement of the fee for appeal, i.e. Article 23(4), third sentence, REE, reads as follows: "If the Board of Appeal allows the appeal, it shall order the reimbursement in full or in part of the fee for appeal if this is equitable in the circumstances of the case". Thus, the reimbursement of the fee for appeal is linked not only to the condition of "equity" but also to the appeal being "allowed".

3.1. It should be borne in mind, however, that there is no fee for appeal in the literal sense in "disciplinary" matters (see "Regulation on discipline for professional representatives" in OJ EPO 1978, 91). Accordingly, the appeal was originally also exempt from fees in examination matters. A fee for appeal was only introduced by the decision of the EPO Administrative Council of 10 June 1983 (OJ EPO 1983, 259). As justification (CA/37/82 - XIV of 31 August 1982, p. 12) it was stated that the fee for appeal was intended to cause the unsuccessful candidate to consider "whether his appeal is likely to be worthwhile". 3.2. The Board is therefore of the opinion that acknowledgement of the appellant's co-operative behaviour through reimbursement of part of the fee for appeal might be equitable.

4. The requirement that the appeal be "allowed", which is additionally called for in Article 23(4), second sentence, REE and is obviously taken from Rule 67 EPC, may however impede the settlement of an appeal in a manner befitting the circumstances and lead to an inequitable outcome. This applies in particular to the constantly recurring case in which - even before it has been possible to decide on the appellant's appeal - he has again sat the examination and passed it. It would therefore be desirable for the above-mentioned provision of Article 23(4) REE to be amended in such a way that, for reasons of equity, the Disciplinary Board could reimburse the appeal fee in full or in part, if the appeal is settled in a manner other than by being "allowed". In the present case, however, where even the appellant has seen the futility of the appeal, the situation cannot even be regarded as analogous to that in which an appeal is "allowed". A partial reimbursement is therefore also clearly out of the question, irrespective of any "equity".

ORDER

For these reasons, it is decided that:

1. Appeal proceedings D 02/87 and D 02/88 are consolidated.

2. The requests for reimbursement or partial reimbursement of the fees for appeal are refused.