D 0002/86 (Decisions in borderline cases) 07-05-1987
1. In examination matters the powers of the Disciplinary Board of Appeal are limited to reviewing Examination Committee and Examination Board decisions for infringement of the Regulation on the European Qualifying Examination (REE) of any provision relating to its implementation or of higher-ranking law (cf. D 05/82 in OJ EPO 5/1983, p. 175 et seq.). If the Board of Appeal considers the appeal admissible and well-founded, it is empowered under Article 23(4), 2nd sentence, REE to do no more than set the contested decision aside. To the extent that the Examination Board has exercised discretion the Board of Appeal cannot substitute its own (Reasons, point 2).
2. The Examination Board's decision in a borderline case under Article 5(3), 2nd sentence, in conjunction with Article 12(3) REE, although discretionary, may under Article 23(1) REE be reviewed for infringement of the rules, in particular, Article 12 REE and the Instructions to the Examination Committees for marking papers (OJ EPO 7/1983, p. 282 et seq. and p. 296 et seq. respectively). Discretion may be exercised only in a manner consistent with these rules, and not arbitrarily (see also D 01/85, OJ 11/1985, p. 341 et seq., Headnote II). Each borderline case decision must therefore be individually substantiated. The substantiation need not set out all details of the examination file; it may be limited to brief comments showing how the principles of Article 12 REE and the Instructions were applied in the specific case, thereby rendering it reviewable (Reasons points 3 and 4).
3. Members of the Examination Board may not abstain from voting on appealable decisions. If the votes are equal, the Chairman has the casting vote. The votes cast are kept secret (Reasons point 5).
Power of review - limited
Decisions in borderline cases - substantiation of
Voting by the Examination Board
I. The appellants sat the 6th European Qualifying Examination held from 17 to 19 April 1985. By registered letter dated 14 November 1985, despatched the following day and delivered in each case on 18 November 1985, the Chairman of the Examination Board for the European Qualifying Examination informed them of their performance in the four papers A, B, C and D (cf. OJ EPO 3/1984, p. 133 et seq.) under the marking scheme published in OJ EPO 7/1983, p. 296 et seq., namely that they had failed one paper (specified in each case) and their marks in the others were insufficient to bring their overall performance up to pass level. These are the decisions contested in the appeals filed on 7, 4 and 22 January 1986, in respect of which the appeal fees were duly paid and the statements of grounds submitted on 7 January and 3 and 19 February 1986 respectively.
II. The three appellants argue under Article 23(1) of the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office (OJ EPO 7/1983, p. 282 et seq.; hereinafter "REE") that the borderline case decision within the meaning of Articles 5(3), 2nd sentence, and 12(3) REE infringed the REE and the provisions relating to its implementation. All three appeals concern the 6th European Qualifying Examination. The appellants' submissions are largely the same and in accordance with Article 4 of the business distribution scheme of the Disciplinary Board of Appeal the same members were therefore appointed to consider them. The appellants have consented to consolidated proceedings under Article 11(2) of the Additional Rules of Procedure of the Disciplinary Board of Appeal (OJ EPO 1980, p. 188).
III. The appellants' grades and marks under the Instructions to the Examination Committees for marking papers (OJ EPO 7/1983, pp. 296 and 297; hereinafter "Instructions") were as follows:
For Papers A, B and C the candidate's marks were in the middle range of 4 ("pass"), the grade duly given for those papers. He became a borderline case because of the 5 ("slightly inadequate") awarded for Paper D, where the two examiners gave him 37/37.5 marks for Part I and 17/20 marks for Part II (totals: 54 and 57.5). 46 to 55 marks meant Grade 5, 56 to 65 Grade 4. The marks therefore had to be harmonised (cf. Decision D 05/82, OJ EPO 5/1983, pp. 175 and 180). As a result, his marks for Part II became 17/17, giving totals of 54 and 54.5, and so Grade 5 - "not quite" 4 - was awarded.
For Papers A, C and D the candidate was awarded Grade 4, in the lower to middle range for Paper A and in the upper range towards 3 for Papers C and D. He became a borderline case because of the 5 ("slightly inadequate") awarded for Paper B, where he received 19/21 marks. 14 to 20 marks meant Grade 5, 21 to 27 Grade 4. Once again a "not-quite-4" Grade 5 was awarded.
This candidate was awarded Grade 4 for Papers A and B (in the middle and lower ranges respectively) and Grade 3 ("good") - albeit in the lower range - for Paper D. He became a borderline case because of the 5 awarded for Paper C, where he received 37/38 marks (i.e. at the lower end of the 35 to 49 mark range).
IV. The contested decisions concerning the candidates' results were taken at the Examination Board's meeting on 13 and 14 November 1985, when it reviewed the borderline cases' papers as a whole in accordance with Article 12(3) REE and the Instructions.
The Examination Board's decision to fail the candidates was taken unanimously in the case of Appellant I, by three votes to two with one abstention in that of Appellant II and by four votes to two in that of Appellant III. The Examination Board informed the appellants of its decision by letter of 14 November 1985, explaining the borderline ruling as follows in all three cases:
"You have failed examination paper ..., and your marks in the other papers were insufficient to bring your overall performance up to pass level."
The minutes of the Board's meeting record - again identically in each case - that "the candidate being a borderline case, the Board has carefully considered his papers as a whole. On the evidence of his overall performance the Board felt that the weaknesses revealed cast serious doubts on the candidate's fitness to practise. It has therefore regretfully decided that the candidate has failed the examination."
V. All the appellants argue in their statements of grounds that this represents an infringement of the REE and in particular of Article 12(3) in conjunction with the Instructions. The text reproduced above was a standard formulation which did not properly substantiate the decision. Appellant I points out that in Paper D he fell just short of the total marks necessary for Grade 4 ("pass"), scoring substantially above the pass mark in the other papers. His poorer mark in Paper D was due to his performance in Part II and in particular to Question 2 ("prior disclosure"), where he had not been awarded a single one of the eleven marks possible. However, his weakness on this question was attributable to an evident error early on in his answer. But in view of the knowledge he had shown of the relevant EPC provisions and of international exhibitions, there was no justification in giving him no marks at all out of the eleven available. The appellant also takes issue with other individual markings. Appellant II considers that the principle of uniformity of marking has been infringed. In Paper C the total marks awarded by the two examiners were the only ones that corresponded at all closely; the individual markings making up those totals varied considerably. Had these markings been harmonised, however, the result could easily have been a 3 ("good"). Giving examples of figures he contends that at least in borderline cases with widely different markings harmonisation cannot be dispensed with simply because the totals are similar. A further breach of the above principle of uniform marking under Article 12(1) REE is that comparable overall performances on either side of the boundary between Grades 4 and 5 are treated differently. A candidate who in all four papers scrapes the bare minimum needed for Grade 4 passes the examination without any review of his case, although a candidate with a 5 in one paper could have out- performed him considerably in the others. This inconsistency arose at random depending on whether or not the different marks awarded by the examiners within the same paper cancelled each other out.
Appellant III argues that the Examination Board omitted to indicate why it considered his shortcomings in Paper C so serious as to warrant failing him despite his passing the other three papers. He infers from point I, 3rd sentence, of the Instructions that the papers making up the examination are equivalent. As point VI of the Instructions indicated that even a 6 could be offset by better grades elsewhere, a 5 could certainly be offset by a 3.
VI. The Examination Board considered these appeals under Article 23(3) REE, without however rectifying any of the decisions. The appeals were remitted to the Board of Appeal by letters of 7 February and 3 and 7 March 1986.
VII. By communication of 7 November 1986 the rapporteur sent to each appellant the Examination Board's comments on his case, indicating facts and legal aspects of possible significance for the decision.
VIII. The appellants indicated in their replies that they did not want oral proceedings. Appellant II pointed out that under Article 12 REE a borderline case decision depended on a review of the answer papers as a whole, in which light the Examination Board's decision was incomprehensible. Appellant III maintained that a 3 could always offset a 5.
IX. The President of the European Patent Office forwarded the comments of the competent EPO department - endorsed by the President of the Institute of Professional Representatives before the EPO - contending that unlike its decision refusing enrolment for the examination (Article 18(1), 3rd sentence, REE), the Examination Board's decisions on passing or failure did not have to be substantiated (which would anyway be no help to those concerned). This was made clear by the wording of the REE and confirmed by the historical documentation. Nor did national law require such decisions to be substantiated.
X. A letter from the President of the EPO dated 23 December 1986 states that Appellant III has meanwhile passed the 1986 European Qualifying Examination.
XI. All three appellants request that the contested decisions be set aside. The main request by Appellant I is for the Board of Appeal to rule that he has passed the 1985 European Qualifying Examination; all the appellants (as an alternative request in the case of Appellant I) seek a new overall marking - clearly on the basis of referral back to the Examination Board - and a refund of the appeal fee.
1. The appeals comply with Article 23(2) REE and are therefore admissible. Appellant III's appeal, like the others, was filed and substantiated in due time, the "ten-day rule" under Rule 78(3) EPC also covering notification of appealable decisions in disciplinary matters. This is clear from Article 23(4) REE in conjunction with Article 21(2) of the Regulation on discipline for professional representatives (OJ EPO 2/1978, pp. 91 and 97; see also Decision D 06/82 in OJ EPO 8/1983, pp. 337 and 338, Reasons, point 2).
2. Appellant I's main request is for the Disciplinary Board of Appeal to rule that he has passed the 1985 European Qualifying Examination. In examination matters, however, that Board's powers are limited to reviewing Examination Committee or Examination Board decisions for infringement of the REE, of any provision relating to its implementation or of higher-ranking law (cf. Decision D 05/82 in OJ EPO 5/1983, p. 175 et seq.). Under Article 23(4), 2nd sentence, REE the Board of Appeal can do no more than set the appealed decision aside. In discretionary matters it cannot substitute its own decision for that contested. This would be possible only in certain special circumstances, for example if the matter ceased to be a discretionary one (e.g. if a miscalculation of marks were established) or if the binding nature of a previous decision had been ignored (cf. Article 111(2) EPC in conjunction with Article 22(3) of the Regulation on discipline and Article 23(4) REE).
3. As requested by Appellants II and III, and in the alternative by Appellant I, however, the Board of Appeal must review the legality of the contested decisions in accordance with Article 23(4) REE. Despite the discretionary nature of the Examination Board's borderline case decisions under Article 5(3), 2nd sentence, in conjunction with 12(3) REE, that Board remains bound by the principles and rules directly inferrable from the Instructions (OJ EPO 7/1983, p. 296 et seq.).
3.1. As regards Article 12 REE itself, the first such principle is uniformity of marking, which must surely be understood as applying also to decisions on borderline cases. Article 12(3) REE also establishes two further principles: that answer papers may within certain limits offset one another and that the papers are to be considered as a whole in borderline cases.
3.2. In the Instructions the Examination Board has published guidelines for the Examination Committees, and indirectly for itself, which are both practical and in keeping with the principles of the REE. Accordingly, the exercise of discretion in borderline case decisions is governed not only by the principles enshrined in Article 12 REE but also by the specific provisions set out in the Instructions. On the limits within which papers may offset one another, for example, these specify in points VI and VII that a 7 can never be cancelled out, and a 6 only by exceptional results in the other papers. For a 5 the Instructions allow particularly wide discretion, under point V making unconditional provision for the results to be reviewed as a whole. The question posed in point I - whether the candidate is fit to practise as a professional representative before the EPO - is now asked again, this time in respect of his overall performance.
3.3. Certain logical inferences are also likely in applying the principles of Article 12 REE and the Instructions, for example that in borderline case decisions the question of fitness to practise posed in point I of the Instructions must be answered in the light of an appraisal of the results as a whole (cf. point V). The decisive question is thus whether or not the candidate's overall performance indicates fitness to practise. In borderline cases this question cannot be answered in the purely arithmetical terms of marks and equivalent grades. It is more a matter of whether the nature and extent of the candidate's deficiencies render him unfit to practise. In such cases it will be necessary to consider, for example, how relevant his failings are to professional practice. This conclusion is indicated both by the purpose of the examination and by the fact that any examination is bound to involve aspects with a greater or lesser degree of relevance to professional practice, a distinction lost in the equally unavoidable arithmetic of the marking process.
3.4. This does not mean that the borderline, which has to be drawn somewhere, is simply shifted, and with it the inevitable hardship cases. Article 12 REE in conjunction with the Instructions draws this line between 4 ("pass") and 5 ("slightly inadequate"). Around this borderline, the marking system automatically offsets poor and good aspects of a candidate's performance within individual papers, although if the grades have to be harmonised a further stage may be involved. A candidate passes the examination if he just manages a 4 in all the papers because the good and poor aspects offset one another arithmetically in each paper. However, it is doubtful whether he is necessarily better fitted to practise than a candidate who in one paper just fails to avoid a 5 but whose performance is otherwise fully satisfactory.
3.5. An oral examination to resolve the problem would hardly be practicable under the European Qualifying Examination system. Furthermore, Article 12(2) REE means that a candidate who scrapes a 4 in all the papers passes the examination, even if particularly weak in areas of greater relevance for professional practice than those where he did better. This however makes the candidate who just passes without being a borderline case the yardstick for the discretion to be exercised in borderline case decisions, where candidates must be put back on an equal footing and uniformity of appraisal restored. A borderline candidate should thus be failed only if likely to be less fit to practise than the kind of candidate just mentioned. If for example a candidate gets clear 4s ("pass") or better in three papers and his fourth paper is only just below the pass mark, then he should be failed only if he seems likely to be less fit to practise than the kind of candidate described.
4. To sum up, the exercise of discretion in decisions on borderline cases is to a certain extent governed by the principles laid down in Article 12 REE and the criteria apparent from the Instructions, and by the likely inferences from their implementation. In its Decisions D 12/82 (OJ EPO 6/1983, p. 233 et seq., Reasons, point 4) and D 01/85 (OJ EPO 11/1985, p. 341 et seq., Reasons, point 3) the Board required "consistency" and "transparency" in the discretionary decision under review. This means that each borderline case decision must be substantiated to the extent necessary to enable an appellant and the Board of Appeal to establish whether any infringement under Article 23(1) REE has occurred. This necessity is merely the consequence of the purport of Article 12 REE and the Instructions. No express provision is therefore necessary, nor is national law of any relevance (cf. comments of the EPO, summarised in point IX above).
4.1. In content, the substantiation required could be merely a note or brief comment making the exercise of discretion in the particular case sufficiently comprehensible for the purposes of Article 23(1) REE, and thus capable of review. An indication of a particularly serious mistake, for example, might suffice.
4.2. Nor therefore need it meet the formal standards of, say, a decision refusing enrolment under Article 18(1), 3rd sentence, REE. The explanation needed to make the discretionary decision easier to understand might also be included in the minutes of the Examination Board's meeting.
4.3. In the absence of such explanations in the present cases neither the appellants nor the Board of Appeal can reconstruct the Examination Board's thinking when exercising its discretion. Under Article 23(1) and (4), 2nd sentence, REE these decisions must therefore be set aside as unsubstantiated. In the case of Appellants I and II the matter is referred back to the Examination Board for a new decision. For Appellant III however no such new decision is necessary; he has since passed the examination, and so no longer has any obvious legal interest in the matter being reviewed.
5. The decision in respect of Appellant II must also be set aside because a ruling "by three votes to two with one abstention" is at odds with the essence of borderline case decisions under Article 12(3) REE.
5.1. The Examination Board has various duties involving various decisions. In certain cases it may be possible to abstain, as in the Administrative Council of the EPO. However, a decision under Article 12(3) REE is an appealable application of the law to an individual, and here - as in the disciplinary bodies and Boards of Appeal - abstention is out of the question. The Board would also draw attention to the Additional Rules of Procedure of the disciplinary bodies (OJ EPO 7/1980, p. 176 et seq.) and the Rules of Procedure of the Boards of Appeal (OJ EPO 9/1983, p. 7), in both of which the 2nd paragraph of the articles entitled "Order of voting" states that abstentions are not permitted. A further reason why abstentions cannot be allowed is that if they were the entire Board might exercise that option.
5.2. As the Examination Board takes borderline case decisions with an even number of members (6), arrangements in the event of a tie are also required. Whilst a decision in the candidate's favour cannot be made conditional on a numerical majority alone (i.e. 4 to 2), nor is there any basis in law for considering a tied vote to constitute such a decision. By analogy with Articles 18(2), 5th sentence, and 19(2), 6th sentence, EPC, it must be assumed that the Chairman then has the casting vote.
5.3. The Board of Appeal has had occasion to rule on abstentions and casting votes in Appellant II's case and therefore considers it appropriate to comment also on whether the number of votes cast for and against should continue to be disclosed to candidates. The Board's view is that the minutes should record the decision only, the number of votes for and against remaining secret. The secrecy of deliberations required by Article 22 REE must always be preserved, particularly if the Chairman has to use his casting vote. Furthermore, Article 13 of the Rules of Procedure of the Boards of Appeal and Article 15(3) of the Service Regulations stipulate secrecy of voting; and the provisions of the Additional Rules of Procedure of the disciplinary bodies governing deliberations and voting must also be understood in the same way.
6. The refund order is based on Article 23(4), 3rd sentence, REE.
For these reasons, it is decided that:
1. Appeal proceedings D 01/86, D 02/86 and D 03/86 are consolidated.
2. The decisions of the Examination Board for the European Qualifying Examination dated 14 November 1985 are set aside in respect of the three appellants. The cases of Appellants I and II are referred back to the Examination Board for further examination.
3. The appeal fee is refunded in all three cases.