2.6.6 Complaints about the conduct of the examination – duties of the Examination Board

In several decisions, the DBA pointed out that, under point 7 of the former Instructions to candidates (OJ 1995, 145) and point 7 of the former Instructions to invigilators (OJ 1995, 153), a timely and formally correct complaint about the conduct of the examination was to be submitted to the Examination Board, which was then supposed 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; see D 17/96, D 2/97, D 2/99 and D 3/99).

The corresponding provisions of R. 19(3) and (4) IPREE were considered in case D 3/10, in which 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, as foreseen by 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).