D 0012/97 (Obligation to give reasons) 25-06-1998

1. The appeal is admissible.

2. As the board pointed out in its communication of 16 April 1998, the REE and its IP are lex specialis for the EPC. In other words, unless they expressly refer to the EPC, then only they and not the EPC apply. But the REE neither requires that EQE decisions be reasoned nor refers to Rule 68(2) EPC, which therefore does not apply to them. Rule 9(2) IP stipulates merely that unsuccessful candidates be sent their answers and the marking sheets.

The only exception to the above principle in Disciplinary Board case law concerned "borderline cases" under the previous law. When the law was changed, these ceased to exist (D 8/96 [OJ EPO 1998, 302]), and the board's decisions on them can no longer be cited.

3. Also unfounded, in the board's view, are the appellant's constitutional arguments. In the oral proceedings he maintained that reasoned examination decisions were a fundamental procedural right in the EPC contracting states which also applied, via Article 125 EPC, to the EQE. This however overstates the case. A major element in any examination procedure is the examining bodies' discretion. Discretion is also essential in the marking process, and subject to only limited review by the courts; it is thus open to the legislator not to prescribe that examination decisions be reasoned, and to confine review to clear abuses of discretion in the marking procedure. The items sent to unsuccessful candidates under Rule 9(2) IP suffice for this purpose.

To support his view, the appellant cites in particular the legal position in the Federal Republic of Germany. The board would first point out that not even in that particular EPC contracting state is the alleged basic procedural right expressly enshrined in the law. True, the appellant has submitted a decision dated 9 December 1992 (Bay. VBl. 1993, 439) in which the Federal German Administrative Court, citing recent case law of the Federal German Constitutional Court, inferred from constitutional principles a general obligation to give written reasons for examination paper markings. However, not only is such national case law not binding on the board, but the court also refers to its earlier view, expressed in numerous judgments, that nothing in federal law requires regional legislators to stipulate that examination decisions be reasoned or the form they should take (loc. cit., page 441). So the principle that such decisions must be reasoned was not one accepted by the highest national court even in Germany, at least until very recently. The appellant's argument that the German legislator could not renounce this purported fundamental procedural right on accession to the EPC is therefore unsound. Nor has he shown this to be a principle generally recognised in the EPC contracting states (Article 125 EPC).

4. The appellant's objections to the way Paper D was marked are unfounded. As already explained in the communication referred to above, it cannot be the board's job to reopen the marking procedure and replace the markers' assessment with its own. For the markers to "weight" individual parts of a paper differently from the appellant lies within their discretion and does not breach either the REE or higher-ranking law.

5. Lastly, the appellant alleges that the markers contravened Article 8 REE by not marking the papers independently of each other. The representative of the President of the EPO has explained to the board's satisfaction how the marking procedure operates, and in particular the precautions taken to prevent one marker prematurely finding out the marks awarded by the other. Nothing in the present case suggests a departure from this procedure to the appellant's detriment.

6. The appeal must therefore be dismissed.