2.3. Complaints about the conduct of the examination – duties of the Examination Board

In D 17/96, D 2/97, D 2/99 and D 3/99, the DBA pointed out that, under the then applicable Instructions to candidates (OJ 1995, 145; see now OJ 2022, A20) and Instructions to invigilators (OJ 1995, 153; see now R. 19(3) IPREE), a timely and formally correct complaint about the conduct of the examination was to be submitted to the Examination Board, which was then to issue a provisional opinion, together with an invitation to comment. Failure to do so put it in breach of generally recognised principles of procedural law (Art. 125 EPC), notably the right to be heard (Art. 113(1) EPC).

According to D 3/04, the appealed decision did not show that the appellant's complaint about unsuitable conditions during the examination had been taken into consideration by the Examination Board. In the view of the DBA, where the Examination Board found the circumstances referred to in a complaint not to justify the allocation of additional marks, brief reasons should be given explaining why this was so. See now R. 19(4) IPREE.

In D 3/10 the appellant had raised a complaint about disturbances during the examination only with the appeal. The DBA held that it would be inadmissible to examine the alleged disturbances in the context of an appeal without any prior decision of the Examination Board in this regard. By not submitting a complaint immediately after the examination (cf. R. 19(3) IPREE), the appellant had deprived the Examination Board of the opportunity to determine the exact circumstances involved and to react accordingly, if necessary with a decision pursuant to R. 19(4) IPREE, or to deal with the allegations in its decision on the result of the examination under Art. 6(5) REE (cf. D 3/04 above).

The view taken in D 3/10 was endorsed in D 11/19. However, the board went on to examine the relevance of R. 19(3) IPREE to the case in hand. This concerned the special conditions of a pilot project in which 15 EQE candidates who had been selected at random (and did not include the appellant) were additionally permitted to use a laptop with a text editor during the examination. The board found that, as the pilot was conducted in a separate location, it had no adverse effect on the conduct of the examination according to the regular procedure, and the remaining candidates could not observe that it was taking place. Therefore R. 19(3) IPREE did not apply in the appellant's case. Moreover, since the appellant only became aware of the pilot at a later point, he could not have submitted, or reasonably have been expected to submit, an objection until filing the appeal. Indeed, in the context of the rectification procedure (Art. 24(3) REE), the Examination Board could and should have reconsidered its decision on the examination result in the light of the appellant's submissions.