D 0004/89 (Borderline case - examination as a whole) 21-08-1989
1. Because of the obvious need to prevent proceedings from being protracted indefinitely, the Disciplinary Board of Appeal may be forced in borderline cases (Article 5(3) in conjunction with Article 12(3) REE) to decide the issue itself (cf. D 01-03/86, point 2 of the Reasons for the Decision, OJ EPO 1987, 489).
2. When the papers of a candidate who has scored grades 5, 4, 3 and 4 are considered as a whole in accordance with Article 12(3) REE, there is no legal basis for assuming that any results to be considered for offsetting a poor grade, including individual sections within the various papers, must be of at least grade 3 standard or have been awarded equivalent average marks (point 5 of the Reasons for the Decision).
Examination as a whole
I. The appellant sat the 8th European Qualifying Examination for professional representatives before the EPO held from 22 to 24 April 1987. His four papers were awarded the following marks:
Paper A: 5 (slightly inadequate)
Paper B: 4 (pass)
Paper C: 3 (good)
Paper D: 4 (pass)
II. The minutes of the Examination Board's meeting on 17 November 1987 contain the following remarks:
"The legal aspects were dealt with satisfactorily in papers C and D, but the treatment of the practical aspects in papers A, B and C taken together was not good enough to justify a pass, Sections I, V of the Instructions to the Examination Committees for marking papers (OJ EPO 1983, 296 ff)." On the same day the Chairman of the Examination Board informed the appellant by letter that he had failed the examination.
III. In a Decision dated 15 September 1988 (D 04/89) on an appeal against this finding, the Disciplinary Board of Appeal ruled that the Examination Board's decision be set aside and the matter referred back to the latter Board for further consideration. In the Reasons for the Decision the Board of Appeal, after analysing the legal position in the light of previous Disciplinary Board case law, concluded that, for a negative decision in this case to be plausible, the Examination Board would have to take particular trouble to state the specific reasons on which it was based. The Disciplinary Board did not consider that the brief comment in the Examination Board's minutes quoted under II above fulfilled this requirement. It was not sufficient to refer generally to "the treatment of the practical aspects in papers A, B and C". The Examination Board should have been more precise as to which practical aspects had in its opinion been dealt with so badly by the candidate that he had failed. Since no such explanations were given in the present case, the Board of Appeal - and the appellant too, apparently - could not reconstruct the Examination Board's thinking when exercising its discretion and therefore could not subject it to scrutiny. Consequently under Article 23(1) and (4) REE the contested decision had to be set aside as unsubstantiated.
IV. In its Decision of 15 September 1988 the Board of Appeal expressly stated that because of the obvious need to prevent proceedings from being protracted indefinitely it might be forced to decide the issue itself should the case be referred to it once more and should it turn out that the Examination Board's decision was still not adequately substantiated.
V. At a meeting on 11 October 1988 the Examination Board once more concluded that the appellant had not passed the Qualifying Examination, and it is against this decision that the further appeal filed on 9 December 1988 is directed. The Examination Board considered this appeal with a view to interlocutory revision under Article 23(3) of the Regulation on the European Qualifying Examination for professional representatives before the European Patent Office (REE), but decided not to allow it.
VI. Pursuant to Article 23(4) REE in conjunction with Article 12, second sentence, of the Regulation on discipline for professional representatives, the Board of Appeal gave the President of the European Patent Office and the President of the Council of the Institute of Professional Representatives an opportunity to comment on the appeal but neither of them in fact did so as to the substance.
VII. The pertinent passages in the Examination Board's statement of reasons in support of its new decision are as follows:
"3. The Examination Board's decision is based on Article 12(3) REE, under which it has to decide, taking your four papers as a whole, whether you have passed the 1987 examination. The object of looking at your four papers as a whole is to ascertain whether the grades you achieved in papers B, C and D are sufficient to offset the grade 5 in paper A. That does not automatically follow from the fact that you achieved a 3 in paper C. There is nothing in the "Instructions to the Examination Committees for marking papers" in the version applicable for the 1987 examination (OJ EPO 1983, 296 ff) to justify the conclusion that a 3 necessarily offsets a 5. The Instructions simply say "It should be borne in mind that a grade between 1 and 3 may offset even a 6 in another paper" (Instructions, Section VIII, last sentence). Nor is the 5 offset by the mere fact that you achieved a 4 in papers B and D. There is nothing in the Instructions to indicate that a 4 necessarily offsets a lower grade. What they do say is that the inadequacy of a paper given a 5 - in your case paper A - is not serious enough to prevent the candidate passing the examination "if his results in the other papers are favourable" (Instructions, Section V).
With a marking pattern such as in your case the Examination Board makes a distinction between your performance on the practical aspects (papers A and B and the categories "use of information supplied" and "argumentation" for Paper C) and on the legal aspects (paper D and the categories "formalities" and "legal aspects" for paper C). The Board considers whether the inadequacy of the paper awarded grade 5 can be offset by "favourable results" in the corresponding (practical or legal) aspects in the other papers. If the answer is "no" the Board considers the candidate unfit to practise as a professional representative before the European Patent Office (Instructions, Section I). A factor in weighing up whether to answer the question with a "yes" or a "no" is whether the 5 is in the upper, middle or lower range of the relevant marking scheme. In the case of a marking pattern such as that under consideration here, performance on aspects to be considered for offsetting a poor grade must have been awarded at least a clear 3 in order to be regarded as "favourable results".
4. The following explanations refer to the marking sheet in your examination file. Paper A was awarded 16 marks by the Electronics/Mechanics Sub- Committee, which means that it is in the lower range of grade 5. Paper B cannot be considered for offsetting the 5 because it received a grade 4 marking. Performance on the practical aspects of paper C, which can be taken into consideration, was awarded 28 (out of 55) marks by one examiner and 30 by the other, corresponding to a grade 4 in both cases:
(18+10)x100:55= 51 marks
(21+9)x100:55= 55 marks
Your performance on the practical aspects of paper C likewise therefore was not sufficient to offset the grade 5.
5. As a result, the Examination Board regrets to have to say that in the 1987 European Qualifying Examination you have not sufficiently proved your fitness to practise as a professional representative before the European Patent Office (see Instructions, Section I)."
VIII. The appellant requests the Board of Appeal to rule that he has passed the 8th European Qualifying Examination and seeks a refund of the appeal fee. The essence of the grounds for appeal is that in this case, too, the Examination Board's decision was not adequately reasoned as required by the Disciplinary Board of Appeal in its Decision dated 15 September 1988, and that the Examination Board's discretionary decision must be regarded as arbitrary.
1. The appeal complies with Article 23(2) REE and is therefore admissible.
2. In this case the contested decision of the Examination Board is a borderline ruling under Article 5(3), second sentence, in conjunction with Article 12(3) REE. Over the past few years the Board of Appeal has dealt with a number of these decisions. Established Board of Appeal case law on this subject requires each borderline case decision to be individually substantiated so that it is possible to establish whether any of the provisions of Article 23(1) REE have been infringed. In a key Decision on cases D 01/86, D 02/86, D 03/86 dated 7 May 1987 (OJ EPO 1987, 489) the Board of Appeal scrutinised in detail the problem arising in connection with decisions in borderline cases. According to that decision the substantiation need not necessarily be lengthy but may be limited to brief comments. Naturally, how detailed the comments must be depends on the circumstances in each individual case. However, the substantiation must always make the Examination Board's exercise of discretion sufficiently comprehensible for the purposes of Article 23(1) REE to enable it to be established that the board's decision is not arbitrary but has been taken on the basis of the applicable rules of the REE and the Instructions to the Examination Committees for marking papers (Instructions). If the Examination Board were not compelled to substantiate its decisions there would obviously be no sense in being able to appeal and the Board of Appeal would also de facto be deprived of the possibility of verifying that legal certainty has been safeguarded.
3. In comparison with the Examination Board's first decision of 17 November 1987 the new decision is substantiated in great detail (see VII above). What is decisive, of course, is not the length of the reasoning but its substance. The argument underlying the new decision obviously centres on the view that "In the case of a marking pattern such as that under consideration here, performance on aspects to be considered for offsetting a poor grade must have been awarded at least a clear 3 in order to be regarded as "favourable results". On that principle papers B and D, in both of which the candidate was given a grade 4, could not be considered for offsetting the grade 5. The Board established by an arithmetical calculation that although paper C as a whole had been given a 3, the number of marks in two "practical" sections of the paper were only equivalent to a grade 4, so that this paper could not therefore be considered either.
4. In a previous unpublished decision (D 07/88 dated 20 December 1988) the Board of Appeal commented that weaknesses within individual sections of a paper may be considered, especially in cases where the Examination Board is debating whether the requirement for offsetting a poor grade laid down in Section VI of the Instructions, i.e. particularly good performances in the other papers, can be regarded as having been fulfilled. D 07/88, moreover, was also concerned with the same sections of paper C as in the present case, but the circumstances of the two cases are not comparable. In particular it should be noted that in D 07/88 the appellant had received a grade 6 and that the marks within paper C were also substantially lower than in the present case.
5. The Board of Appeal cannot agree with the Examination Board that in the case of a marking pattern such as that under consideration here (i.e. 5, 4, 3, 4), any results to be considered for offsetting a poor grade, including individual sections within the various papers, must be of at least a clear grade 3 standard or have been awarded equivalent average marks. Such a view is clearly incompatible with Article 12(3) REE and with the Instructions. There is no legal basis for applying such rigid criteria when assessing the candidate's papers as a whole as provided for under Article 12(3) REE. The line taken by the Examination Board is also manifestly at variance with the Board of Appeal's finding in the above-mentioned Decision of 7 May 1987 that in borderline cases the question whether or not the candidate's overall performance indicates fitness to practise cannot be answered in the purely arithmetical terms of marks and equivalent grades (see Reasons, 3.3). The Examination Board thus has not made the exercise of its discretion with regard to Article 12(3) REE and the Instructions comprehensible in this case and it must be regarded as arbitrary. Under Article 23(1) and (4) the contested decision is therefore to be set aside.
6. Since the Examination Board has again failed to give plausible grounds for its negative decision, the Board of Appeal has decided in accordance with its Decision dated 15 September 1988 (Reasons, 7) to decide the issue itself. In the Board of Appeal's opinion a correct assessment of the candidate's papers as a whole under Article 12(3) REE leads to the conclusion that the slightly inadequate performance in paper A, bearing in mind the appellant's grades in the other papers - good and pass - does not bar him from passing the examination.
For these reasons, it is decided that:
1. The contested decision is set aside.
2. The Board finds that the appellant has passed the 8th European Qualifying Examination.
3. Refund of the appeal fee is ordered.