D 0007/82 (Powers of investigation) 15-12-1982
1. In matters connected with examinations, the Disciplinary Board of Appeal is empowered, pursuant to Article 23(1) of the Regulation on the European Qualifying Examination for professional representatives before the EPO to investigate whether the provisions of that Regulation are in conformity with higherranking law, particularly the EPC, and whether the appealed decision rests on an infringement of such law or of the provisions of the Regulation. Consequently, responsibility for the conduct of the examination lies with the Examination Board and under no circumstances with the Disciplinary Board of Appeal in the former's stead.
2. Since each Committee of the Examination Board is composed of several examiners, the mark for each examination paper is awarded by the Committee as a whole. It follows that neither the method of the arithmetic means nor the "method of harmonising marks" is mandatory for the Committees.
3. The Disciplinary Board of Appeal has no power to refer questions to the Enlarged Board of Appeal.
Powers of investigation and decision of the Disciplinary Board
Marking by the Examination Committees, not by individual examiners
No jurisdiction of Enlarged Board of Appeal
II. Furthermore. the Examination Board was requested by the Board of Appeal to consider, firstly ..., and secondly, how the overall mark should be determined where results on the various papers differed.
III. ... The Examination Board furthermore gave the following replies to the Board of Appeal's two suggestions:
(b) "As a rule" it was not possible for a candidate obtaining different results on individual papers including a grade 7 (fail) on one paper to pass the examination as a whole. This principle was stated in the "Instructions to the Examination Committees regarding the marking scheme" and the Examination Board saw no reason to depart from it in the present case.
V. The following complaints are implicit in most of the claims:
(b) He also complains about the marking of papers A and D as follows:
paper A: ...
paper D: The marking scale used by Examination Committee III - in contrast to that used by the other Committees - was "non-linear", i.e. divided into unequal steps, and was not really a scale at all. Thus a candidate obtaining between 40 and 49% on a paper was given grade 5 (slightly inadequate) by Committees I and II, grade 7 (fail) by Committee III.
(c) The appellant also criticises the fact that his paper D was "quite obviously" marked by two examiners having English as their mother-tongue. Since 10 marks were available for intellectual presentation and style, this made the overall mark even more dubious. He felt there was every reason to doubt whether an examiner having a language other than German as his mother tongue was capable of judging the style of a text in a foreign language.
(d) Finally, as regards paper D, the fact that the grade "fail" meant an overall fail was arbitrary and unjustified especially as the Chairman of the Examination Board himself acknowledged that this principle merely applied "as a rule", so that the Board seemed to have a certain amount of discretion.
3. In the case of paper D, the appellant complains that the marking scale is not linear and is thus not really a scale at all and that it differs radically from the system applied by the other Examination Committees. The word scale, which comes from the Italian word for stairs or ladder, signifies a "table" in the present case, i.e. the examiner has to give the candidate a number of points corresponding to a given performance, thus ensuring equal treatment for all candidates. The term "scale" does not necessarily imply an arithmetical or geometric progression - and the terms "progressive" or "degressive" are apposite in the case of a table or scale.
As regards the substance and considering the discretionary powers of the Examination Board, as mentioned above, which may not of course be invoked to contravene the regulations in force, the mere fact that the Examination Committee used a non-linear table is at variance neither with the principle of equal treatment for all candidates nor any other principle whose observance has to be ensured by the Board of Appeal.
4. Although in his most recent claims the appellant no longer expressly requests that paper D be re-marked by "independent" examiners having German as their mother tongue, that complaint has to be examined because the appellant maintains his claim to have the papers concerned re-marked "independently". It should be noted in this connection that an examiner having, say, English as his mother-tongue may be perfectly capable of judging the structure, clarity and grammatical accuracy of a text in German and there is no reason to believe that this was not the case here. Moreover, a candidate who takes the trouble to write clearly and with an eye to stylistic simplicity can be perfectly well understood and assessed even by a foreign reader. On no account may a candidate object to an examiner on grounds of the latter's nationality, which usually also implies a given mother tongue. This principle is implicit from Article 24(3) EPC on objection to members of the Boards of Appeal.
5. There is nothing really unusual about the stipulation that a given grade implies a "fail" overall; it does not run counter to the maxim that all candidates are equal merely because a number of candidates who obtain a low grade on a particular paper fail, whereas others who obtain the same grade on another paper pass the examination.
In the present case, the Examination Board was quite right to stipulate that a candidate obtaining the grade "fail" in paper D, which tested his legal knowledge, could not be registered as a professional representative even if he did well on other subjects.
Unfortunately the German version of point VII of the Instructions to the Examination Committee, containing that stipulation, appears to allow exceptions: "Die Note 7 bedeutet, daß der Bewerber nach Auffassung des Prüfers die Prüfung keinesfalls bestehen sollte", a point confirmed by the Chairman of the Examination Board on 30 March 1982 as follows: "In particular the Board maintains that, as a rule, a candidate obtaining grade 7 on one paper has not passed the examination." The English, and in particular the French version could not be so interpreted:
"A mark 7 is an indication that the examiners consider that the candidate should not pass in any circumstances." "La note 7 signifie que les examinateurs estiment que le candidat ne doit en aucun cas être reçu." On the other hand, candidates ought to have been informed before the examination that a "fail" in the paper concerned would mean a fail overall. These deficiencies, however, do not affect the validity of the examination and do not require the case to be remitted to the Examination Board for review.
For these reasons, it is decided that:
1. The application to refer the case to the Enlarged Board of Appeal is refused.
2. The appeal against the Decision of the Examination Board for the European Qualifying Examination of the EPO dated 30 March 1982 is dismissed.