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Case Law of the Boards of Appeal

2.2. Examination conditions

In D 2/95 the DBA found against an appellant alleging discrimination; the fact that certain other candidates had been allowed to use normal as opposed to copy paper for the examination was not in breach of the provisions governing its conduct. Some candidates might find copy paper more awkward, but others might well prefer it. Nor did other arguments along similar lines - e.g. that too little time was allowed for the papers, or that candidates whose mother tongue was not an EPO official language were at a disadvantage and should therefore be given more time than the others - convince the DBA that the relevant provisions had been infringed (D 11/00).

In D 1/94 (OJ 1996, 468) the board did however rule that a translation error might constitute a violation of Art. 11(3) REE 1991 (cf. Art. 12(3) REE, R. 5 IPREE), since this provision assumed that the translation from the language selected by the candidate into one of the EPO official languages was totally correct. In its decision, the Examination Board therefore had to give reasons why the translation errors had not been found to be serious.

In D 14/95 the appellant alleged infringement of the principle of equal treatment because he, as a specialist in biochemistry, had been placed at a disadvantage in Paper C (taken from mechanical engineering) compared with a specialist in that field. The board found against any breach of equal treatment; the appellant's position was no different from that of any other candidate whose specialist field did not happen to be used in the paper as set. True, the examination procedure did in effect involve a certain "inequality". The Examination Board set a limited number of papers, and therefore had to make a choice amongst the different technical fields. So there would always be candidates who happened to be more specialised than others in the particular field selected. This however was inherent in any general examination, and thus did not constitute arbitrary unequal treatment. Furthermore, Paper C was less concerned with testing specialist technical knowledge than the ability to draft a notice of opposition to a European patent.

In D 9/96 a candidate alleged unequal treatment in connection with the language rules under Art. 15 REE 1994 (cf. Art. 12 REE). The board conceded that not all candidates were treated equally since not all of them received examination papers in their mother tongue. However, this differentiation was a direct consequence of the linguistic regime of the EPC 1973 itself. According to Art. 14(1) EPC 1973 the official languages of the EPO were English, French and German. Each professional representative was inevitably confronted with documents and notifications in one of the three official languages of the EPO. Thus, any professional representative had to be expected, in the public interest and the interest of his clients, to understand at least one of the official languages and to be able to work on documents and notifications drafted in this language.

The background to several appeals (D 10/97, D 15/97, D 17/97 and D 5/97) against Examination Board decisions failing candidates in Paper D of the 1996 EQE was that some (but not all) of the copies of the paper given to candidates did not contain Question 11. The Examination Board therefore automatically gave all candidates full marks for Question 11. On this point the DBA reaffirmed D 14/95, which had stated that equal treatment did not have to be absolute, provided the nature and extent of any unequal treatment was justifiable in the circumstances. It would be wrong in law, however, if the examination conditions put certain candidates at a disadvantage for no good reason. The Examination Board had compensated the affected candidates in a way which appeared entirely appropriate given the circumstances. This necessarily involved a certain unequal treatment, which however was limited in its extent and acceptable in this special situation. In particular, it ensured that no candidate was worse off than if his answer had been marked objectively. So, in the DBA's view, the way in which the Examination Board had corrected the error was appropriate to the circumstances and did not constitute unlawfully unequal treatment.