D 0008/96 (Borderline case) 18-07-1997

Reasons for the Decision

1. Admissibility

The Disciplinary Board of Appeal has noted that the appellant passed the European Qualifying Examination in 1996. The question therefore arises whether or not the appellant can be said to be adversely affected by the decision under appeal. The Disciplinary Board of Appeal recognises that candidates who pass the examination before an appeal can be decided, still may have a legitimate interest in a review on appeal (see e.g. decision D 3/91 of 24 August 1992). Firstly, a candidate who would by virtue of his appeal be declared passed, may be entitled to a refund of the appeal fee and any examination fees he might in the meantime have had to pay. Secondly, and more importantly perhaps, a candidate's professional reputation and economical conditions may be affected by the time required for him to be entered on the list of professional representatives before the EPO. Thus, the Board concludes that the appellant has a genuine legitimate interest in having his case reviewed. As the appeal meets the other conditions under Article 27(2) REE 1994, it is admissible.

2. The development of the Regulation and its Implementing Provisions

The very first Regulation on the European Qualifying Examination for professional representatives before the European Patent Office was adopted in 1978 (REE 1978, OJ 1978, 101). In it, the basic areas of candidates' qualifications to be tested were decided (Article 10 REE 1978). Already from the start a system with four separate papers emerged. A candidate who had passed each paper was to be declared to have passed the examination, Article 12(2) REE 1978. A candidate who had passed at least half of the papers could still pass the examination, if the Examination Board in considering the papers as a whole so decided, Article 12(3) REE 1978. According to Article 5(3) REE 1978, the Examination Board was obliged to examine borderline cases and decide whether a candidate had passed or failed. A new REE was adopted in 1983, in which the above provisions were essentially maintained unamended.

With the REE adopted and put into force on 7 December 1990, REE 1991, a new system was introduced by which candidates who had failed the examination would be able in certain circumstances to resit only the failed papers. In order to pass the examination, however, such a candidate had to pass each of these papers, Article 12(3) REE 1991. For those candidates sitting all papers the possibility of passing in spite of one or two failed papers was kept, but only under the precise conditions laid down in the Implementing provisions to Article 12(2)(b), i.e. Item VII of the IP 1991 (OJ EPO 1991, 89). These conditions meant inter alia that a grade 5 in only one paper could be offset by a grade 3 or better in any other paper, regardless of the topic covered by these papers, whereas a grade 5 in two papers only could be offset if the first one had been obtained either in paper A or B and a grade 3 or better had been obtained in the other of those two, and the same was true for papers C and D. This shows that a candidate must be well qualified in both the main topics covered by the examination. Between A and B on the one side and C and D on the other side compensation was excluded (except as described above when a candidate only had failed one paper in which a grade 5 had been obtained). One could say that the two modules now existing by virtue of REE 1994 actually emerged already in 1991. The aim was obviously to ensure that the candidate's qualifications in each main topic would still be adequate.

By 1991, then, the overall assessment of candidates in borderline cases, as governed by REE 1978 and 1983 and the case law of the Disciplinary Board of Appeal, was meant to be abandoned. However, the Disciplinary Board of Appeal in decision D 1/93 recognised that problems could still remain with the new system, and decided that the then applicable Article 12(3) REE should be interpreted so as to leave the Examination Board the possibility to appreciate whether in a borderline case the candidate was fit to practise although he failed one paper at a partial resit. It should be noted here that the candidate in this case had sat the examination for the first time in 1991 and resat two papers in 1992, one of which he failed. Decision D 1/93 must thus be seen as an exception in the early days of the new system.

With effect from 1 January 1993, a clarification was made in added item XII of the IP that in case a candidate had made a partial resit he would only pass the examination if a grade 4 or better was awarded in each paper.

From this historical overview, it can be appreciated that the introduction of partial resits was combined with abandoning the overall assessment in borderline cases. By the 1993 examination, at the latest, no candidate could have been unaware of the new system and how it was meant to work.

The appellant claims that the absence of a possibility for him to sit the examination in modules should entitle him to have this overall assessment in borderline cases. The appellant was however entitled to sit only one module in the 1994 examination. Those candidates who had enrolled for the 1994 examination were informed by the Examination Board in a letter dated 20 December 1993 that first-sitters could still avail themselves of the possibility of modular sitting by notifying the Examination Board before 21 January 1994. This was made possible by making Article 14 REE on modular sitting applicable already from 10 December 1993 (Article 2(2) REE, OJ EPO 1994, 7).

3. REE 1994

The new regime adopted by the Administrative Council on 9 December 1993 and entered into force on 1 May 1994, REE 1994, can be said to have brought the former system of an overall assessment in borderline cases to a final close. In the travaux préparatoires to the REE 1994, doc. CA/84/93, under Article 17 it is pointed out that the new system as a general rule stipulates that candidates have to pass each paper. In the Disciplinary Board's view, this can only mean that compensation, or "borderline assessment", is not possible, except where expressly provided for. All such exceptions are laid down in Rule 10 IP 1994, which essentially contain the same precise conditions as the IP 1991. But the focus of the regime had by 1991 already shifted from the "overall assessment" criterion to one of pure compensation of grades in certain circumstances. The conclusion by the appellant that the almost identical wording of Item XII of IP 1993 and the corresponding provision in REE 1994 must extend borderline case assessments to the present regime is therefore incorrect.

4. The interpretation of Article 17(1), Article 7(3) REE 1994, Rule 3 and Rule 10 IP 1994

The appellant claims that Rule 10 is not exhaustive, leaving room for borderline case assessments also under the 1994 regime.

Rule 10 is a result of the power given to the Examination Board by the Administrative Council through Article 17(1) REE 1994. This article expressly provides that candidates shall be declared to have passed the examination if they pass each of the papers or if the first time they sit the examination obtain the minimum grades required under the implementing provisions. Article 17(1) REE is in itself thus exhaustive, leaving room for only two possibilities to pass the examination, either that a candidate passes each paper or, when sitting for the first time, fulfils the conditions of Rule 10 IP 1994. Rule 10 IP 1994, therefore, cannot be interpreted as leaving room for further interpretation beyond its wording.

Article 17 REE being of a higher rank than Rule 3 IP 1994 takes precedence over this rule. This means that Rule 3 IP 1994 must be read as an indication only for the examiners on how to go about marking the papers and that this rule may not be interpreted in a sense not in conformity with the REE. The Board may also add with regard to Rule 3 IP that it does not contain any legal provision in the strict sense of the word, but rather constitutes a general statement for the guidance of the examiners. In fact, Rules 3 to 7 contain instructions to the members of the examination committees to ensure a uniform marking of candidates' papers (see Article 16 REE 1994). At REE level, the object of the examination is laid down in Article 12 REE, giving a concentrate of all the areas in which the candidate is expected to have a thorough knowledge. As can be seen here, each paper represents a major topic to ensure the candidate's abilities in accordance with this object.

The interpretation of Article 7(3) REE as contended by the appellant contrasts with the object of the new REE 1994 as explained above and also with the aim of the marking of papers and functions of the Examination Board in accordance with the REE read as a whole. As explained by the representative of the President of the EPO, there is a certain discretion when determining the grades for each paper, but none when it comes to deciding on a pass or fail result. The Disciplinary Board of Appeal, seeing that the latter interpretation is in conformity with the aim of the new regime and that it is not in conflict with any higher ranking provision or fundamental principle of law, therefore concludes that there is no room for borderline assessments in the case of a partial resit.

5. The relevance of decision D 1/93

Against the above history and interpretation of the new regulation, the system of overall assessments in borderline cases which was applied in D 1/93 to candidates sitting the examination in 1991 and 1992 cannot be recognised for partial resits in 1995. Decision D 1/93 must therefore be seen as an exception allowing for a margin in the early days of the new system. Even when considering that the Examination Board's exceptional passing of candidates who sat the examination in 1993 and 1994 may have resulted from D 1/93, as the appellant would have it, the applicability of this decision cannot extend to candidates who resat papers as late as 1995. The reasoning and outcome of D 1/93 consequently has no relevance for the present case.

6. Procedural violation

It follows from the above that the Examination Board by issuing an unreasoned decision did not commit any substantial procedural violation.

7. Combined points

It likewise follows from the above that the sum obtained by the appellant when combining the most favourable grades from the sittings in 1994 and 1995 is irrelevant to the examination result, as the appellant did not meet the requirements under Article 17(1) REE to be declared to have passed. Nor are the obtained marks in papers C and D of relevance for the appeal as no compensation is foreseen in the applicable regulation for a partial resitting.

8. Conclusions

For these reasons the requests that the appellant be declared to have passed the examination or that the case be remitted for review to the Examination Board cannot be allowed. Hence, the request for refund for the examination fee for the 1996 examination must be refused.