Under Art. 24(1) REE (cf. Art. 27(1) REE 1994), an appeal lies from decisions of the Examination Board and the Secretariat only on grounds of infringement of the Regulation or of any provision relating to its application.
However, the board of appeal has only very limited scope for reviewing the legal validity of implementing provisions drawn up by the Administrative Council or, in the case of delegation, by the relevant subsidiary body.
In D 3/89 (OJ 1991, 257) the board of appeal stated in justification of the limited scope of the examination that the relevant bodies had discretionary powers in drawing up such provisions. As long as the legislative organ and subsidiary bodies had not misused their discretionary powers, the DBA could apply the provisions concerning examinations only to the case in point (see also D 1/81, OJ 1982, 258, D 5/89, OJ 1991, 210, D 14/96, D 11/99 and D 7/05, OJ 2007, 378).