2.2.2 Other circumstances

In D 2/95 (see above), the fact that certain candidates had been allowed to use normal as opposed to copy paper for the examination was held not to be in breach of the provisions governing its conduct. Some candidates might find copy paper more awkward, but others might well prefer it. In fact, only two candidates had been allowed to use normal paper, for medical reasons.

In D 14/95 the appellant was a specialist in biochemistry, whereas Paper C was taken from mechanical engineering. The board found against any breach of the principle of equal treatment; the appellant's position was no different from that of any other candidate whose specialist field did not happen to be used in the paper as set. True, the examination procedure did in effect involve a certain "inequality". The Examination Board set a limited number of papers, and therefore had to make a choice amongst the different technical fields. So there would always be candidates who happened to be more specialised than others in the particular field selected. This however was inherent in any general examination, and thus did not constitute arbitrary unequal treatment. Furthermore, Paper C was less concerned with testing specialist technical knowledge than the ability to draft a notice of opposition to a European patent.

The background to several appeals (D 10/97, D 15/97, D 17/97 and D 5/97) was that some (but not all) copies of Paper D did not contain Question 11 and that the Examination Board automatically gave all candidates full marks for that question. The DBA reaffirmed D 14/95, which had stated that equal treatment did not have to be absolute, provided that the nature and extent of any unequal treatment was justifiable in the circumstances. It would be wrong in law, however, if the examination conditions put certain candidates at a disadvantage for no good reason. The Examination Board had compensated the affected candidates in a way which appeared entirely appropriate. This necessarily involved a certain unequal treatment, which however was limited in its extent and acceptable in this special situation. In particular, it ensured that no candidate was worse off than if their answer had been marked objectively. The way in which the Examination Board had corrected the error did not constitute unlawfully unequal treatment.

The appeal in D 11/19 concerned the pilot project during the 2019 EQE session, in which 15 candidates selected at random were additionally permitted to use a laptop with a text editor during the examination. The appellant, who sat the examination under the regular conditions (cf. Art. 9(2)(b) REE and Instructions to candidates), submitted in his appeal that those candidates were given an unfair advantage. The board referred to the DBA's settled practice of reviewing whether the principle of equal treatment of EQE candidates has been adhered to as higher-ranking law (cf. D 2/95; D 14/95; D 10/97; D 5/99; D 19/04). It concluded that the arrangement of the pilot project was in breach of this principle because it meant that the respective groups of candidates were treated unequally without any objectively justifiable reason. See also D 15/19.