2.6.4 Review of the marking of the pre-examination

In D 3/14 the appellant had obtained the grade "fail" (with 68 marks) in the EQE pre-examination. She argued that the answer to statement 10.4 in the question paper should have been "false", rather than "true", as given in the examiners' report, and requested that the decision of the Examination Board be set aside and that she be awarded a "pass".

Applying the principles established in the case law on the EQE itself (e.g. D 1/92, see chapter V.C.2.6.3 above), the board examined whether the alleged mistake was so obvious that it could be established without reopening the entire marking procedure. It found that statement 10.4 should have been formulated differently in order to express the aim intended. Candidates could not be expected to make an assumption in this respect (cf. R. 22(3) IPREE, providing that candidates must limit themselves to the facts given). The appellant's understanding of statement 10.4 was justified from an objective point of view. The answer to it was "false" and not "true" as indicated in the examiner's report. The examiners had based their evaluation on an incorrect premise and therefore the contested decision was based on serious and obvious mistakes which could be established without reopening the entire marking procedure. The decision had to be set aside and the appeal fee reimbursed (Art. 24(4) REE).

Concerning the requested award of a "pass", it held that the appeal board was not empowered by Art. 24(4) REE, second sentence, REE to correct the decision, i.e. to review the marks and grade of an examination paper, and therefore considered whether special reasons provided a legal basis for not remitting the case to the Examination Board (cf. Art. 12 RPDBA). Only in a few exceptional cases had the DBA found such special reasons (D 5/86; D 11/91 date: 1994-09-14, OJ 1995, 721; D 8/08 and D 9/08), but in appeals against decisions of the Examination Board it had not made use of this power to review the contested decision on its merits. However, in the pre-examination, a multiple choice paper, the marks were awarded according to a strict scheme not involving any discretion and the award of a "pass" or "fail" was merely the arithmetical outcome of the marks achieved. From a limited review, the board was able to establish the correct marks on the basis of the appellant's answer paper without interfering with any value judgment of the examination committee or Examination Board. Also taken into account were the matter's urgency, since a "pass" in the pre-examination was a precondition for the main examination, and the fact that the Examination Board, by not rectifying its decision, even though the discrepancy had been comprehensively substantiated, had burdened the appellant with appeal proceedings. With the correction, the total marks rose from 68 to 70 and a "pass" was therefore awarded. See also D 3/19.

In D 1/15, too, the DBA considered that the settled jurisprudence (e.g. D 1/92; D 6/92; D 7/05 date: 2006-07-17, OJ 2007, 378) also applied to appeals on the pre-examination, even if the marking was hardly ever in dispute, given the simple marking scheme of a multiple-choice test. However, the review requested in this case was directed at the content of the examination as presented to the candidates. To decide on the issues, the board would have had to review at least a substantial part of the paper and perform a detailed, partly technical analysis of the facts presented. This exercise appeared to be well beyond the powers of the board. See also e.g. D 6/16.

See also the decisions in this chapter V.C.2.4.1 Setting and marking the pre-examination.