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Case Law of the Boards of Appeal

 
 
2.3. Marking the answer papers

Art. 6(2)(c) REE requires the Examination Board to give the members of the examination committees instructions for marking candidates' answers consistently (cf. Art. 16 REE 1994).

Under Art. 8(1)(d) and (e) REE, the examination committees mark the answer papers, each paper being marked by two committee members (examiners) separately (cf. Art. 8(b) REE 1994).

In D 4/99 the appellant's complaint concerned the fact that the two examiners had marked Paper D differently. The board stated that the appellant's starting point that in case of non-identical marks only one value could be the correct one was irreconcilable with the fact that marking was an individual assessment of the candidate's work. Rather, more or less strict standards were possible and different aspects might be considered essential or less important even within the general instructions to the examiner for marking the papers contained in the IPREE 1994. Examiners must have some latitude of evaluation when awarding marks and individual examiners might arrive at different marks, both results being justifiable. Therefore, differences in marking did not violate the REE 1994 and its implementing regulations (D 5/94, D 6/98). In order to safeguard the principle of equal treatment, harmonisation of marking was provided for in the marking sheets. If the marking was different, the two examiners might revise their marks on the basis of a discussion between them. The examination committee recommended the grade, and the Examination Board adopted it or otherwise, in full knowledge of the different marks awarded by the two examiners. This system ensured uniformity of marking (Art. 16 REE 1994). See also 2.6.3 below.

In D 6/99 the DBA confirmed that small differences in marking did not, as such, violate the REE 1994 and its implementing regulations. They were an unavoidable consequence of the provision, in Art. 8(b) REE 1994, that each answer was marked separately by two examiners. The board was not aware of any provision supporting the appellant's submission that in such cases only the better mark awarded in each category of the paper should be counted.

In D 10/02 (OJ 2003, 275) it was noted that neither the REE 1994 nor its Implementing provisions regulated the procedure to follow in the exceptional cases where a committee was unable to agree on the marking; nor did they provide for calling in a third or fourth examiner. The DBA pointed out that those were the very cases in which an express provision was needed in order for a candidate to satisfy himself that his paper had not been marked arbitrarily or the procedure influenced by irrelevant circumstances. Hence the appointment of a third examiner without any basis in the REE 1994 or its Implementing provisions had to be deemed a substantial procedural violation.

In D 3/04 the appellant had complained about unsuitable conditions during the examination. The appealed decision, however, did not show that the appellant’s complaint had been taken into consideration by the Examination Board. In the view of the DBA, where the Examination Board found the circumstances referred to in a complaint not to justify the allocation of additional marks, brief reasons should be given explaining why this was so.

In D 7/05 (OJ 2007, 378) the DBA deemed that details of the marking include sufficient sub-division of the maximum achievable mark and the candidate's overall mark into sub-marks, and an indication of the substantive and legal issues for which those sub-marks were awarded. In producing schedules of marks there had to be a trade-off between their purpose of ensuring uniform marking (Art. 16 REE 1994) and the need also to allow for fair marking of answers which deviated from the scheme but were at least reasonable and competently substantiated. The schedules therefore had to leave some room for manoeuvre and - merely - be sufficiently detailed to constitute details of the marking within the meaning of R. 6(1) IPREE 1994 (cf. now R. 4(1) IPREE) allowing candidates to verify, on the basis of the documents published or made accessible, whether the marking of their answers infringed marking principles the respect of which was subject to review by the DBA. See also 2.5 below and decisions D 11/07 and D 23/08.