2.6.3 Objective review of the marks awarded in the examination

In accordance with the DBA's consistent case law (see in particular D 1/92, OJ 1993, 357 and D 6/92, OJ 1993, 361), decisions of the Examination Board may in principle only be reviewed for the purposes of establishing that they do not infringe the REE, the provisions relating to its application or higher-ranking law. In D 1/92 and D 6/92, the DBA therefore concluded that its functions did not include reconsidering the examination procedure on its merits. Accordingly, the Examination Board's value judgment concerning the number of marks that an examination paper deserved was not subject to review by the board. Only if the appellant could show that the contested decision was based on serious and obvious mistakes could the board take this into account. The alleged mistake must be so obvious that it could be established without re-opening the entire marking procedure, for instance if an examiner was alleged to have based his evaluation on a technically or legally incorrect premise on which the contested decision rested. Any further claims regarding alleged defects in the assessment of candidates' work fell outside the DBA's jurisdiction, since value judgments were not subject to judicial review. These findings were confirmed in D 7/05 date: 2006-07-17 (OJ 2007, 378). See also, for example, D 9/00, D 7/01, D 11/01, D 11/07, D 14/08, D 23/08, D 5/13, D 11/18 and D 11/19.

In D 6/98, the DBA added that these conditions were in line with those for correcting errors under R. 89 EPC 1973 (cf. now R. 140 EPC), particularly in the case of errors of transcription or calculation in the marking. Under Art. 27(1) REE 1994 (cf. Art. 24(1) REE), the DBA was not empowered to reopen the assessment procedure (D 15/97). The DBA was not intended to be a department of second instance empowered to examine whether the marks awarded for a candidate's examination were justified on their merits or correct, and thus to superimpose its own value judgment on that of the Examination Board (D 20/96 and D 6/02).

D 12/00 concerned a complaint about differences between the individual marks awarded by the two examiners. Relying on the principle of uniformity of marking (Art. 16 REE 1994; Art. 6(2)(c) REE, English text, now provides for consistency of marking), the appellant claimed that the higher number of marks should count. The board confirmed its established case law (cf. D 1/92, OJ 1993, 357, above): differences of opinion over the number of marks to be awarded for a given answer were a reflection of value judgments which were not, in principle, subject to judicial review. The fact that two independent examiners had arrived at different marks was not per se a violation of the applicable provisions. See also case summaries in this chapter V.C.2.4.3.

In D 13/02 the board stated that obvious mistakes as referred to above were those which could be identified without a re-evaluation of the examination paper. That would be the case, for instance, if one and the same paper had been marked very differently by the two examiners, since the marking discrepancy alone would indicate an infringement of the principle of uniform marking, irrespective of the level of the marks awarded. Another example of an obvious mistake would be a question whose wording was ambiguous or incomprehensible. That would be clear straight away, without any reference to marks awarded, from the meaning that common sense would ascribe to the wording of the question concerned.

D 17/05 cited D 13/02 to point out that the existence of a mistake within the meaning of D 1/92 could not be deduced from a comparison of the candidate's answer with another answer. The board also cited the statement that the disclosure of marking instructions which may have been used by the examiner was not required for a decision on an appeal and that under the established case law no other entitlement existed to any such disclosure.

D 6/13 concerned an alleged infringement by the Examination Board of R. 23(3) IPREE (regarding the content of Paper A). The Board agreed that the Examination Board has an implied obligation to prepare the examination papers and corresponding marking scheme correctly, in that the marking scheme should award the appropriate marks for correct solutions and this "correct" marking scheme should also be "correctly" applied in every case. However, the DBA may not be competent to determine whether the marking scheme or individual marking is correct from every possible aspect which may have adversely affected the marking of a candidate, given that Art. 24(1) REE excludes certain appeal grounds. Therefore, if the Examination Board did not "perfectly" fulfil this implied obligation, in that arguably correct solutions were not awarded any or enough marks, this could not qualify immediately as an infringement of R. 23(3) IPREE in the sense of Art. 24(1) REE, but was a question be decided on a case-by-case basis. If the DBA were to extend the examination of appeals to an in-depth technical examination, this would in effect reduce to zero the scope of the restriction on the possible appeal grounds stipulated in Art. 24(1) REE, and require value judgments to be made. See also e.g. D 10/19.

D 14/17 and D 20/17 concerned the candidates' inventive step attack in Paper C starting from Annex 6 as the closest prior art, for which they had received 0 out of 20 marks. Based on a summary examination and (at least) a figure filed by the appellant, it was evident for the board that, contrary to what was asserted in the examiners' report, no technical obstacle existed with regard to Annex 6, which was reasonably to be regarded as an alternative starting point (see also e.g. parallel case D 25/17). Furthermore, having concluded that there were special reasons not to remit the case to the Examination Board (cf. Art. 12 RPDBA; here: prima facie competent and logical answer, small number of marks involved, very short time between oral proceedings and next EQE session), the board in D 14/17 allowed the appellant's requests to be awarded a "compensable fail" for Paper C and, based on that, to be declared to have passed the EQE (Art. 14(1) REE). See also in this regard D 3/14, summarised in the next section, and D 5/14, both concerning the EQE pre-examination.

The burden of establishing serious and obvious mistakes necessarily lies with the appellant who alleges it (D 46/07). In D 24/17 the DBA found that on most issues the appellant did not substantiate in detail in what respect the solution of the examiners' report was incorrect, but left it to the board to establish of its own motion to what extent the official solution and the marking of her papers was or could have been wrong. This would go beyond the scope of the board's review. Only on the clarity-related issues in paper B were the appellant's submissions (partly) well-founded. It was evident that she had addressed at least some of them in her answers, and it was therefore incomprehensible that no point at all was awarded. This amounted to a serious and obvious mistake which affected the marking. The board remitted the case for paper B to be re-marked with respect to the aspect of clarity and ordered reimbursement of the appeal fee at 25%.