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At issue in D 12/97 (OJ 1999, 566) was whether EQE Examination Board decisions informing candidates that they have failed the examination have to be reasoned. The DBA pointed out that this was not required by the REE 1994.
The board also found the appellant's constitutional arguments ‑ that substantiation of such decisions was a generally recognised principle of procedural law within the meaning of Art. 125 EPC 1973 ‑ to be unfounded. For this to be so, it had to be shown that substantiation of such decisions was required in the EPC contracting states.
In D 3/03 the board of appeal confirmed its case law (D 12/97, OJ 1999, 566), whereby the REE 1994 neither required EQE decisions to be reasoned nor made reference to R. 68(2) EPC 1973 (cf. now R. 111(2) EPC), which therefore did not apply. The Guidelines for Examination were likewise not applicable for the same reasons. The REE and its Implementing provisions were lex specialis for the EPC. In other words, unless they expressly referred to the EPC, then only they and not the EPC applied. The subsidiary nature of these provisions was justified by the fact that they governed a particular matter unrelated to the EPC stricto sensu, since their purpose was to establish whether a candidate was considered fit to practise as a professional representative before the EPO. With regard to the review by the courts of decisions concerning the European qualifying examination for professional representatives before the EPO, the Federal German Constitutional Court had also held that the obligation to give reasons for examination decisions cannot be regarded as an expression of the structural elements of any protection of basic rights intended by the Basic Law (see decision 2 BvR 2368/99 of 4 April 2001).
This case law was again confirmed by the DBA in D 7/05 (OJ 2007, 378). In its extensive reasoning the Board also held that, apart from the fact that the marking sheets under R. 6(1) IPREE 1994 already had a decision substantiation function, the extent to which the principles of rule-of-law process also demanded individual substantiation of examination decisions could not be assessed without consideration of the extent of the Board’s powers of review under Art. 27(1) REE 1994. The absence of an obligation to provide individual substantiation was to be seen in connection with the fact that Examination Board decisions in EQE proceedings were subject to only limited judicial review (as to this see also 2.6.1 and 2.6.3 below).