D 0003/89 (Vocational college qualification) of 5.3.1989

Summary of Facts and Submissions

I. In a letter dated 26 October 1988 the appellant requested enrolment for the 1989 European Qualifying Examination. As corroboration of his scientific or technical training within the meaning of Article 7(1)(a) of the Regulation on the European Qualifying Examination for professional representatives before the EPO dated 21 October 1977 (hereinafter referred to as "the Regulation", published in OJ EPO 1983, 282) and in accordance with the examination procedure relating thereto drawn up by the Examination Board (OJ EPO 1980, 220), the appellant submitted an engineering diploma ("Dipl.-Ing.") from the vocational college at H. To his application he also appended a certificate from ... dated 10 July 1974 showing that in the period from 1 September 1971 to 16 July 1974 he had been trained as a telecommunications fitter. He further submitted written confirmation dated 25 October 1988 from patent attorney Z., a professional representative, certifying that the appellant had been working for him full-time in activities pertaining to patent matters since 1 November 1984.

II. In a letter dated 9 February 1989 the Chairman of the Examination Board informed the appellant under Article 18(1) of the Regulation that the Examination Board had decided not to enrol him for the examination because he did not satisfy the requirements of point 5.4.1 of the examination procedure. Under that provision, a candidate must have worked full-time during a period of three years in a range of activities pertaining to patent matters in addition to the period of four years prescribed in Article 7(1)(b) of the Regulation. This corroboration was necessary because the diploma submitted had been awarded by an educational institution in the examination procedure's List B.

III. The appellant filed an appeal against that decision, claiming there was no reason to require him to have an additional period of three years' practice in the profession. Qualifications from German vocational colleges satisfied the requirements of Article 7(1)(a) of the Regulation and must be regarded as a university-level scientific or technical qualification within the meaning of that provision.

IV. On 16 December 1988 the European Community had issued an EC directive recognising all tertiary qualifications awarded on completion of at least three years' vocational training. Consequently, qualifications from German vocational colleges were equivalent to university-level qualifications within the meaning of Article 7(1) of the Regulation. As an official European body, the EPO was bound by this EC directive.

V. That universities and vocational colleges enjoyed equivalent status was also clear from the way they were regulated by law. The appellant referred by way of example to the legislation in the German states of Baden-Württemberg and North Rhine/Westphalia and to the law governing German universities.

VI. Qualifications from German vocational colleges were to be regarded as at least equivalent within the meaning of Article 7(1)(a), second alternative, of the Regulation, which meant that experience of at least four years was all that could be required. Instead, the Examination Board was demanding an additional three years' full-time experience on the basis of the examination procedure. Yet the latter was at most a recommendation without the force of law. Only the Administrative Council - not the Examination Board - was empowered to draw up procedures of this kind. Although the Examination Board had invoked the Disciplinary Board of Appeal's decision D 1/81 (OJ EPO 1982, 258), an additional period of three years' experience in activities pertaining to patent matters did not demonstrate equivalence in the scientific or technical field.

VII. At the appellant's request the Board delivered an interlocutory decision on 4 April 1989, refusing a preliminary ruling on the appellant's enrolment for the 1989 European Qualifying Examination on the grounds that the contested decision was in line with many years of precedents to which the Board had seen no reason to object in its previous decision (OJ EPO 1982, 258).

VIII. With an interlocutory communication dated 11 October 1989 the rapporteur sent the appellant a copy of decision D 5/89 (OJ EPO 1991, 218). The appellant maintained his request for oral proceedings, which took place on 5 March 1989 and during which he requested that the contested decision be set aside and that he be enrolled for the European Qualifying Examination.

Reasons for the Decision

1. The appeal is admissible under Article 23(2) of the Regulation.

2. Under Article 23(1) of the Regulation an appeal lies from decisions of the Examination Board only on grounds of infringement of the Regulation or of any provision relating to its application. The Disciplinary Board is unable to establish the occurrence of any such infringement within the meaning of Article 23(1) of the Regulation.

3. Article 7(1) of the Regulation, which lays down the conditions for enrolment for the European Qualifying Examination, stipulates that a candidate must

(a) possess a university-level scientific or technical qualification or be able to satisfy the Examination Board that he possesses an equivalent level of scientific or technical knowledge.

(b) have worked full-time for a period of at least four years. If the candidate does not possess a university-level scientific or technical qualification, point 5.4.1 of the examination procedure (OJ EPO 1980, 220) stipulates that to show he possesses an equivalent level of scientific or technical knowledge he must have worked full-time during a period of three years in a range of activities pertaining to patent matters in addition to the period of four years prescribed in Article 7(1)(b) of the Regulation.

4. To satisfy the requirements of Article 7(1)(a) of the Regulation the candidate submitted a diploma from the vocational college at H. Since the latter is not a university, the candidate does not satisfy Article 7(1)(a), first alternative, of the Regulation of which the English and French versions ("university level", "niveau universitaire") clearly stipulate a university-level qualification.

Under the law currently applicable to the European Patent Organisation, however, a qualification from a vocational college cannot be accepted as corroboration of an equivalent level of scientific or technical knowledge within the meaning of Article 7(1)(a), second alternative, of the Regulation. Point 5.4.1 of the examination procedure puts German vocational colleges among the educational institutions included in List B, whose diplomas have to be supplemented by a period of three years' full-time experience in a range of activities pertaining to patent matters. The appellant has not shown that he has this additional experience.

The appellant, on the other hand, maintains that corroboration of an additional three years' experience is not necessary on the grounds that his qualification from a German vocational college is equivalent to a university-level qualification. That was clear from the law governing German universities, from the relevant legislation in the German states of Baden-Württemberg and North Rhine/Westphalia and, in particular, from the EC directive of 16 December 1988 by which the European Patent Office, as an official European body, was bound. The Disciplinary Board does not share this view. The European Patent Organisation is not a member of the European Community and therefore not bound by the Community's standards or directives. It is an independent organisation which cannot be bracketed with the European Community - if only because its Member States are not co-extensive with those of the EC. In proceedings before the European Patent Office, therefore, the only valid law is that enshrined in the European Patent Organisation's legal system and in particular that set out in the Convention establishing the Organisation or drawn up by the latter's competent organs. It includes neither the national laws of the Organisation's Member States nor any standards or directives drawn up by communities of States such as the European Community. At most these may give the competent legislative body of the European Patent Organisation grounds for reviewing the law applicable to the Organisation to see whether or not it should be adapted to divergent rulings in the Member States or in existing communities of States. If the European Patent Organisation's Member States were to accept qualifications from vocational colleges as equivalent to university-level qualifications, that would give the legislators who draw up the examination procedure, i.e. the Examination Board, adequate grounds for adapting the procedure to the changed attitudes in those States. But until any such adaptation comes into force the Examination Board and the Disciplinary Board must ensure equal treatment by applying the law as it stands, i.e. Article 7(1) of the Regulation and point 5.4.1 of the examination procedure.

5. The appellant finds the current system illogical on the grounds that it compels candidates to demonstrate an equivalent level of scientific or technical knowledge (Article 7(1)(a), second alternative, of the Regulation) by showing they have worked for an additional period of three years in a range of activities pertaining to patent matters. Experience of this kind could not make up for any shortfall in scientific or technical knowledge.

The Disciplinary Board cannot entirely ignore this argument. It does believe that an additional period of three years' experience in a range of activities pertaining to patent matters is a perfectly acceptable way of making up any shortfall in scientific or technical knowledge, since such experience requires, among other things, in-depth analysis of scientific and technical subject-matter. However, it does not interpret the Regulation as meaning that a shortfall of scientific or technical knowledge can be made up only by an additional three years' experience in a range of activities pertaining to patent matters. Provided a candidate can show he has relevant experience in another appropriate area, there seems to be no reason why this should not be acceptable. So if a candidate with a qualification from a vocational college and four years' experience within the meaning of Article 7(1)(b) of the Regulation can additionally show that, even if he has not worked in a range of activities pertaining to patent matters, he has nonetheless done so in a scientific or technical field involving, for instance, research, the Board considers he might then well satisfy the requirements for enrolment for the European Qualifying Examination under Article 7(1)(a), second alternative, of the Regulation. It would therefore be desirable for the examination procedure to provide for that eventuality in the interests of legal certainty. But even that interpretation would be inadequate for the purposes of the present appeal, because since 1 November 1984 - after receiving his vocational college qualification - the appellant has been working continuously and full-time for a professional representative in a range of activities pertaining to patent matters. In this connection he refers to his training as a telecommunications fitter from 1 September 1971 to 16 July 1974. The Disciplinary Board does not doubt that an apprenticeship of this kind provides knowledge that may be helpful and useful for a professional representative. However, an apprenticeship is not an acceptable means of showing that the candidate possesses scientific or technical knowledge equivalent to that obtained at university level within the meaning of Article 7(1) of the Regulation. The apprenticeship was also served before the candidate studied at a vocational college, and if only for that reason cannot have extended the scientific and technical knowledge gained from those studies.

6. The Disciplinary Board cannot agree with the appellant's objection that the Examination Board was not empowered to draw up the examination procedure and that point 5.4.1 of the procedure is therefore inapplicable. In its decision D 5/89 (OJ EPO 1991, 218), the Disciplinary Board found that the legal validity of the examination procedure was beyond doubt in this respect. Under Article 5(2), 1st sentence, of the Regulation the Examination Board draws up the examination procedure, which means that the Administrative Council, as the legislator responsible for the Regulation, has delegated its powers to draw up provisions to that Board. In drawing up provisions concerning examinations the Examination Board is therefore exercising powers conferred on it for this purpose by the Administrative Council and can thus dispense with the latter's involvement. The examination procedure may incorporate any provisions of importance to the running of the examination, including in particular a more specific interpretation of the general rule contained in Article 7(1)(a) of the Regulation. The purpose of that is to clarify the meaning of a university-level scientific or technical qualification and how an equivalent level of scientific or technical knowledge can be corroborated.

7. The validity of the examination procedure drawn up by the Administrative Council or by the Examination Board on its behalf can be scrutinised by the Disciplinary Board only to a very limited extent, since the relevant bodies have discretionary powers in drawing up such procedures. This is necessary, moreover, since the legislative organ must be empowered to select from among several possible solutions the one which in its view is appropriate to the situation. The Disciplinary Board is unable to review these discretionary powers, so the chosen solution may involve inconsistencies or hardship for the appellant. That can rarely be avoided where different circumstances are regulated by a general rule. But as long as the legislative organ has not misused its discretionary powers in drawing up a rule, the Disciplinary Board can apply the provisions concerning examinations only to the case in point, even if the appellant takes the view that a different rule would be better than the existing one. The appellant would have to take a concern of that nature to the legislator, not bring an appeal before the Disciplinary Board.

8. The Disciplinary Board cannot accede to the subsidiary request for an interview to show that the candidate possessed an equivalent level of scientific or technical knowledge, since neither the Regulation nor the examination procedure provides for such an option. The Disciplinary Board considers the principle of this correct, there being no way in which the Examination Board can regularly test the quality of candidates' scientific or technical knowledge as a substitute for the additional three years in professional practice in the absence of a university-level qualification. This would place too great a burden on the Examination Board both technically and in terms of staffing. But that does not mean that the Examination Board is bound to adhere strictly to the requirement for an additional three years' practice in the profession stipulated in point 5.4.1 of the examination procedure. In exceptional cases and to prevent inequitable hardship the Examination Board may, if it thinks fit, allow a candidate to enrol for the European Qualifying Examination even if he has not yet completed the entire additional three-year period. In such cases an interview might be appropriate.

9. The Disciplinary Board cannot accede to the appellant's suggestion in his notice of appeal that the points of law on which the proceedings are based be referred to the Enlarged Board of Appeal. For one thing, the present Board doubts whether under Article 112(1) EPC it is even entitled to refer a matter to the Enlarged Board of Appeal in order to ensure uniform application of the law or to decide an important legal point. That option, after all, was intended for the Boards of Appeal referred to there, i.e. those defined in Article 21 EPC, which do not include the Disciplinary Board. The latter was only created later by the Administrative Council under Article 134(8)(c) EPC and as laid down in Articles 5(c) and 10 of the Regulation on discipline for professional representatives dated 21 October 1977 (OJ EPO 1978, 91). But even if the Disciplinary Board were entitled to refer a matter to the Enlarged Board within the meaning of Article 112 EPC, there would be no need for it to do so since the present decision is consistent with its own case law (cf. OJ EPO 1982, 258, and OJ EPO 1991, 218). The appeal is therefore dismissed.

ORDER

For these reasons it is decided that: The appeal is dismissed.