D 0003/86 (Decisions in borderline cases) of 07.05.1987

1. In examination matters the powers of the Disciplinary Board of Appeal are limited to reviewing Examination Committee and Examination Board decisions for infringement of the Regulation on the European Qualifying Examination (REE) of any provision relating to its implementation or of higher-ranking law (cf. D 05/82 in OJ EPO 5/1983, p. 175 et seq.). If the Board of Appeal considers the appeal admissible and well-founded, it is empowered under Article 23(4), 2nd sentence, REE to do no more than set the contested decision aside. To the extent that the Examination Board has exercised discretion the Board of Appeal cannot substitute its own (Reasons, point 2).

2. The Examination Board's decision in a borderline case under Article 5(3), 2nd sentence, in conjunction with Article 12(3) REE, although discretionary, may under Article 23(1) be reviewed for infringement of the rules, in particular, Article 12 REE and the Instructions to the Examination Committees for marking papers (OJ EPO 7/1983, p. 282 et seq. and p. 296 et seq. respectively). Discretion may be exercised only in a manner consistent with these rules, and not arbitrarily (see also D 01/85, OJ 11/1985, p. 341 et seq., Headnote II). Each borderline case decision must therefore be individually substantiated. The substantiation need not set out all details of the examination file; it may be limited to brief comments showing how the principles of Article 12 REE and the Instructions were applied in the specific case, thereby rendering it reviewable (Reasons points 3 and 4).

3. Members of the Examination Board may not abstain from voting on appealable decisions. If the votes are equal, the Chairman has the casting vote. The votes cast are kept secret (Reasons point 5).