D 0001/85 (Substantial differences in marking) 25-07-1985
1. Marking of paper for the European Qualifying Examination must be done bearing in mind the basic principle of equality laid down in particular in Article 12(1) of the Regulation.
2. The fact that this requirement is subject to monitoring by the Disciplinary Board of Appeal, coupled with the principle of "transparency" of administrative actions make it necessary that where marks awarded by individual examiners differ substantially the latter should provide explanatory notes.
3. Where a candidate is a borderline case the Committee must make recommendations and the Examination Board specifically discuss the matter. Compliance with these requirements must be clear from a study of the file which is to be made known on request to the unsuccessful candidate, failing which the Examination Board's decision will be null and void.
Substantial Differences in marks proposed by examiners
Advisability of furnishing comments in borderline cases
Need for the Examination Committee's recommendations and consideration by the Examination Board
I. The appellant sat the fifth qualifying examination for professional representatives before the European Patent Office from 25 to 27 April 1984.
II. On 13 November 1984, she was informed that the Examination Board had decided that she had failed the examination since she had not passed in Papers C and D (both of which had been graded 5 or "Slightly inadequate") without having obtained in Papers A and B (for which she obtained a grading of 4 and 3, i.e. "Pass" and "Good" respectively) a grading sufficiently high to justify an overall "Pass".
II. On 3 January 1985 the candidate appealed against the Examination Board's decision and duly paid the appeal fee. In her statement dated 6 February 1985 she requested:
- that the Examination Board's decision of 13 November 1984 be set aside,
- that a third "examiner" be brought in as arbitrator in the case of Paper D,
- that a new overall grading be given on the basis of a new marking of the paper concerned. She also requested reimbursement of the appeal fee in the event of her being successful.
IV. The main argument contained in her statement was an alleged violation of Article 12(1) of the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office of 21 October 1977 in its amended form (OJ (EPO) 7/1983, p. 282). hereinafter referred to as the "Regulation on the European Qualifying Examination" or simply "the Regulation", which reads as follows: "The Board shall give the members of the Examination Committees the necessary, instructions to ensure that candidates' papers are marked in a uniform manner", said to constitute a basic disregard of the underlying principle of equality revealed by the substantial differences in the marks awarded by different examiners. The appellant pointed out particularly that in the case of Paper D, Part I, Question 2 examiner Ib had awarded 3 marks out of 6, and examiner III 5 out of 6 whereas in the case of Question 11 the marks had been 3 out of 4 and 1 out of 4 respectively. In the case of Part II of the same paper the differences in marks awarded by the same examiners were: Question 1, 4 out of 15 and 13 out of 15; Question 2, 5 out of 15 and 12 out of 15.
V. The appeal was forwarded to the Board of Appeal by the Examination Board secretariat on 28 February 1985 without any particular comments. Only when requested by the Registrar of the Board of Appeal did the secretariat explain on 19 March 1985 that at a meeting held on 26 February 1985 the Examination Board had not thought it necessary to allow the appeal in view of the provisions of Article 23(3) of the Regulation.
1. In order to judge the merits of the appeal it is essential briefly to summarise the functions under the Regulation of the various bodies successively involved in marking papers.
1.1. According to Article 6 (b), each paper is to be "marked" (French: "corrigée"; German: "bewertet") separately by two examiners and under Article 5 (3), subsequently "marked" by the Examination Committees (Commissions - Prüfungsausschüsse) who then pass them to the Examination Board (Jury - Prüfungskommission). The different words used in the French version of the Regulation namely "corriger" and "noter" are not paralleled in the German and English texts. There is, however, no doubt from Article 6 that the mark is given by the Examination Committee on the basis of what is clearly only a proposed mark by the examiners - a fact which the Board has had occasion to point out in a previous Decision (D 05/82 of 15 December 1982, OJ (EPO) 5/1983, p. 175) and which the appellant herself recognises in point 15 of her statement.
1.2. Under Article 5(3), the Examination Board is responsible, having considered the papers marked by the Examination Committees, for deciding whether a candidate has passed or failed, while in particular examining borderline cases. The ultimate decision undoubtedly lies with the Examination Board; this is stated both by Article 5(4) of the Regulation and also, in case this should still be necessary, by point III of the Instructions to the Examination Committees, at least this time in the German and English versions: "Die Prüfungskommission trifft ihre endgültige Entscheidung - The Examination Board takes its final decision", the French text is not explicit here (OJ (EPO) 7/1983, p. 296).
2. In the case in question a study of the papers in the file relating to the disputed marking of Paper D in fact confirms the appellant's claim of a considerable divergence between the marking of examiners Ib and III. These differences are reflected in the total marks as follows:
Part I
Examiner Ib: 30 marks
Examiner III: 31,5 marks
Part II
Examiner Ib: 13 marks
Examiner III: 30 marks
In fact, an error in addition that apparently went unnoticed at the various stages of marking and by the appellant herself resulted in the total number of marks for Part I given by examiner Ib being shown as 30 instead of the correct figure of 32.
Applying the grading scheme on the basis of the marks they themselves had awarded, examiners Ib and III suggested a grading of 6 (inadequate) and 4 (pass) respectively for Paper D as a whole. It should be pointed out that but for the error in addition referred to the total number of marks awarded by examiner Ib would have been 45, which is on the borderline between an overall grade 6 (Inadequate) and 5 (Slightly inadequate), only one more mark being needed for the higher grade.
With one exception, the column reserved for "Remarks" by examiners on the summary marking sheets was left blank.
2.1. In view of these markings the Examination Committee recommended that the Examination Board award a grading of 5 (Slightly inadequate) and did not provide any further comment.
2.3. On a date not known to the Board of Appeal the Examination Board confirmed the grading proposed by the Examination Committee and notified the candidate of it on 13 November 1984. In no document contained in the examination file made available for inspection by the appellant in accordance with Article 21(2) of the Regulation and which the Board of Appeal could use as a basis for its deliberations is there mention of special consideration by the Examination Board.
3. Since an appeal under Article 23(1) is admissible only on grounds of infringement of the Regulation, the Board of Appeal clearly could not substitute its own assessment for the grading awarded for the papers by the Examination Board (D 05/82 dated 15 December 1982, OJ (EPO) 5/1983 p. 175).
3.1.There is,moreover,no doubt that Article 21 (2) provides that "Unsuccessful candidates may ask to inspect their examination file" because of the possibility of an appeal. This provision, introduced into the Regulation of 21 October 1977 by an amendment of 10 June 1983, adopts the principle laid down in a previous Board of Appeal decision that unless a candidate is allowed to inspect his examination file, he has little chance of effectively entering an appeal (D 02/80 dated 8 December 1981, OJ (EPO) 5/1982, p. 192).
3.2. In the present case the fact that the examination file showed practically no comments by the examiners or the Examination Committee or any reasoning on the part of the Examination Board made it difficult for the appellant to submit a more detailed statement of grounds and for the Board of Appeal effectively to ascertain whether the principle of uniform marking enshrined in Article 12 (1) which is in line with general legal principles had in fact been respected in both letter and spirit.
3.3. In an earlier decision the Board stated that it was not necessary for an examiner to submit annotated copies of marked papers since a system using separate marking sheets had been introduced. It did, however, point out that in its view a greater "transparency" was desirable although the candidate should not be entitled to appeal solely on the grounds of absence of more detailed marking (D 12/82 dated 24 February 1983, OJ (EPO) 6/1983, p. 233).
Moreover, given the striking differences in marks awarded by the examiners in the present case the Examination Committee should, both by reason of the principle of "transparency" and in order to comply with Article 6 (c) of the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office, have furnished some explanatory comments.
Where two judgements are contradictory the inevitable conclusion is that at least one of them is wrong. Consequently it is by no means certain that a correct result will be obtained simply by taking the arithmetical average of the two marks. Not for nothing and particularly with such cases as the present in mind do the above-mentioned regulations provide for marking to be carried out in three stages in an endeavour to assure a fair and uniform system.
3.4. Although and indeed because the concept of "borderline case" is only very vaguely defined in Article 12 (3) of the Regulation by "... if a candidate has passed at least half of the examination papers", the appellant would appear to have been in just such a situation because of the gradings given - one "Good" (3), one "Pass" (4), and two "Slighly inadequate" (5). The striking differences in the marks awarded for the questions in Paper D could only enhance the uncertainty in the final marking. In borderline cases of this kind Article 6 (c) of the Regulation obliges the Examination Committee to make its recommendations to the Examination Board. The full significance of this obligation is only revealed by a reading of Article 5 (3) which provides that the Examination Board "shall in particular examine borderline cases and decide whether a candidate has passed or failed". The importance attached to this procedure is also demonstrated by the fact that the same clause precludes any member of the Board who was a member of the Examination Committee which marked the papers of the candidate in question from taking part in this decision.
Nowhere is there evidence in the file that the important obligations devolving on the Examination Committee under Article 6 (c) and on the Examination Board under Article 5 (3) have been complied with. Moreover, the general principle that the rights of the individual should be safeguarded and the legality of administrative decisions assured requires that in cases such as the present the disputed decision should be duly substantiated. Here again, the decision is defective.
3.5. Since, therefore, a number of essential provisions of the Regulation have been disregarded there are grounds for allowing the main request and setting aside the Examination Board's decision of 13 November 1984.
3.6. On the other hand, the appellant's requests that a third examiner be brought in as arbitrator in order to review the marks awarded in the case of Paper D as part of the present procedure and the overall grading subsequently be reconsidered cannot in the circumstances be acceded to. It results from the foregoing that the only decision open to appeal is that of the Examination Board since the task of the examiners is simply to "mark", hence in the context of the Regulation to "propose" the marks to be awarded. Where the opinions of examiners differ the only arbitration provided for by the Regulation is that of the Examination Committee which by the marks it awards prepares the decision of the Examination Board.
3.7. Since the main request is allowed equity requires the ordering of reimbursement of the appeal fee in full under Article 23 (4) of the Regulation.
ORDER
For these reasons, it is decided that:
1. The decision of the Examination Board communicated on 13 November 1984 is set aside and the matter referred back to the Board for a new decision.
2. The appeal fee is to be reimbursed.
3. The appellant's other requests are rejected.