BOARDS OF APPEAL
Decisions of the Disciplinary Board of Appeal
Decision of the Disciplinary Board of Appeal dated 17 July 2006 - D 7/05
Composition of the board:
Headword: European qualifying examination
Rule: 68 EPC
Article: 2(1), 4(1), 7(3)(b), 8(b) and (c), 13(3), 16, 17(1), 24(1), 27(1)(3) REE
Rule: 4, 5, 6 REE
Article: 6 ECHR
I. Details of the marking within the meaning of Rule 6(1) of the implementing provisions (IP) to the Regulation on the European qualifying examination for professional representatives (REE) are deemed to include sufficient sub-division of the maximum achievable mark and the candidate's overall mark into sub-marks, and an indication of the substantive and legal issues for which those sub-marks were awarded (point 9 of the reasons).
II. In producing schedules of marks there has to be a trade-off between their purpose of ensuring uniform marking (Article 16 REE) and the need also to allow for fair marking of answers which deviate from the scheme but are at least reasonable and competently substantiated. The schedules must therefore leave some room for manoeuvre and - merely - be sufficiently detailed to constitute details of the marking within the meaning of Rule 6(1) IP allowing candidates to verify, on the basis of documents published or made accessible, whether the marking of their answers infringed marking principles the respect of which is subject to review by the Disciplinary Board of Appeal (point 13 of the reasons).
III. On the issue of whether the absence of an obligation to substantiate a negative examination decision other than as required by Rule 6(1) of the IP to the REE contravenes higher-ranking legal principles, see point 25 ff of the reasons.
Summary of facts and submissions
I. The appeal lies from the Examination Board's decision of 29 September 2004, conveyed to the appellant by letter of 8 October 2004, that he had not passed the European qualifying examination (EQE) held from 24 to 26 March 2004. Having already achieved pass grades in Papers A to C in previous years, the appellant sat only Paper D of the 2004 examination. For his performance in that paper he was awarded 44 of the maximum of 100 marks, 50 marks being required to pass the paper. The relevant marking sheets, containing details of the marking by two members of Examination Committee III, were enclosed with the decision.
II. By letter of 9 November 2004, received at the European Patent Office (EPO) on the same date, the appellant filed notice of appeal against the decision, together with a statement of grounds. The fee for appeal was paid on 10 November 2004.
III. The Examination Board did not allow the appeal, and by letter of 29 December 2004 remitted it to the EPO's Disciplinary Board of Appeal.
IV. The appellant had requested that the Examination Board communications of 8 October 2004 and 29 September 2004 be withdrawn, that the Examination Board be obliged to give duly substantiated reasons for the marking, that he then be given sufficient time to file observations on technical and examination-law aspects of the marking and grading, and that thereafter a further communication be issued; he had also requested accelerated prosecution of his appeal.
The Disciplinary Board of Appeal (hereinafter the Appeal Board) initiated proceedings by sending the appellant a first communication notifying him inter alia that appeals against examination decisions were prosecuted in chronological order because all unsuccessful candidates were equally affected. It referred to a number of issues relevant to his case and gave him an opportunity to add to his submission.
On receiving the appellant's reply, the Appeal Board asked the Examination Board to supply it with any other schedules of marks that existed for Part II of Paper D, the documents currently on file not showing which substantive and/or legal complexes in Paper D II came under Sections A, B, C and D on the marking sheet for Paper D. The Examination Board sent the Appeal Board an answer in which it explained how Sections A to D on the marking sheet related to the major substantive complexes of Part II of Paper D. It attached a schedule of marks for "DII 2004" ("detailed marking sheet"), which in comparison with the marking sheet sent to the appellant with the decision included further numbered sub-divisions of complexes A to D, but no other text. The Examination Board maintained that this detailed schedule of marks served merely to ensure that candidates' answers were marked in a uniform manner, but its content was strictly confidential.
In a further communication to the appellant in preparation for oral proceedings, the Appeal Board set out its provisional view of a number of aspects of the case.
V. On 29 May 2006 the Appeal Board held oral proceedings, to which it had summoned the secretary of Examination Committee III, which was responsible for marking Paper D. In the summons sent to the Examination Secretariat it had also indicated that it saw no justification in the present case for refusing to submit existing, more detailed documents relating to the actual marking of Part II of the appellant's Paper D. After discussion of the substantive and legal situation, at the Appeal Board's request the head of the Examination Secretariat, representing the President of the EPO in the proceedings, handed over the detailed DII 2004 schedules of marks for the appellant's paper. He also read out the President's statement, which had been placed on file, that the Office considered it appropriate to give candidates access to the detailed marking schemes as well, possibly in connection with publication of the Compendium, with a view to making the EQE marking system more transparent.
VI. The Appeal Board allowed the appellant's request for a submission deadline extension until 30 June 2006 for commenting on the schedules of marks handed over during oral proceedings, as well as for further oral proceedings thereafter, but did not allow his written request, submitted immediately after the proceedings, to be sent further schedules for Part I of Paper D. On 3 July 2006 the appellant filed a "vorläufige fachliche Gegendarstellung", a provisional counterstatement setting out technical objections to the marking of his answer paper. Further oral proceedings were held on 17 July 2006.
VII. In his written and oral submissions the appellant essentially argued as follows:
1. The absence of any technical substantiation of the examination decision that would enable him to verify his grading in technical and legal terms was unlawful and unconstitutional under the German legal system; it was in breach of the principle of the rule of law and ordre public; it contravened Germany's Grundgesetz (Basic Law, Article 12(1) in conjunction with Article 3(1) and Article 20(3) in conjunction with Article 19(4)); and it also violated European law.
There were no marginal comments on the appellant's answer papers, the examiners had given no reasons for their marking, and there was no model solution. That was an open invitation to manipulation, and it left the candidate at the mercy of the examiners. Established Appeal Board case law to the effect that there was no obligation to substantiate decisions on failure of the EQE was a fundamental violation of the rule-of-law principle.
2. The Appeal Board had sent the appellant a decision (2 BvR 2368/99 of 4 April 2001) of the Fourth Chamber of the Second Senate of the Federal German Constitutional Court which ruled that the criteria of the Federal German Administrative Court for reasoned examination decisions could not at least for the present be deemed to constitute the structural elements of a system of fundamental rights envisaged by Germany's Grundgesetz, such as its Article 24(1) already guaranteed in relation to supranational organisations. This decision came as a surprise to someone specialising in the law governing examinations, in view of the central and fundamental landmark decisions of the Constitutional Court's entire First Senate on the constitutional requirements to be met by a professional qualifying examination. It was highly unlikely that an entire senate could uphold this Fourth Chamber ruling in a still more extreme case such as the present. The appellant in the cited case before the Fourth Chamber of the Second Senate had obviously not provided substantiated proof that legal protection against EQE decisions clearly and consistently fell below the level demanded by the Grundgesetz, as was the case in the present even more extreme instance where the lack of substantiation was persistent and obstinate, i.e. deliberate. The present appellant had already failed the EQE five times. For want of any substantiation, the marking of his answers had not given him the opportunity to which he was entitled to remedy any deficiencies in his knowledge and pass the examination at the next attempt. As a Dr. Ing. (doctor of engineering) and on the basis of his further training, he was essentially qualified to practise as a European Patent Attorney, and he had invested considerable amounts of money and learning time in his resits.
3. In his written and oral submissions the appellant further discussed the specific requirements governing the organisation of an examination marking system as set out in Administrative and Constitutional Court rulings on German examination law, looking in particular at the obligation to give reasons and the need to provide for review by the examining bodies when a candidate submitted duly substantiated objections. These requirements and criteria of German examination law were also internationally applicable because they derived from a minimum rule-of-law standard needed to prevent arbitrariness and abuse of the examiner's power.
The Regulation on the European qualifying examination (REE) was constitutionally defective. The absence of even minimal substantiation of the examination decision left it open to manipulation and made a mockery of the rule of law. There was no point in a system of marks that was logically unverifiable, there having been no indication of how many marks the candidate had received for individual elements, how high the overall mark had been mathematically speaking and how his marks compared with those of other candidates. The award of 44 marks and the sub-division into Sections 1-11 and Part II A-D according to the marking sheet he had been sent were just token gestures and had no function for purposes of explanation or review.
Only examination-specific parameters such as comparability or degree of difficulty were exempted from judicial review, not essentially technical differences of opinion between candidate and examiner. Nor could a reasonable solution logically backed up with significant arguments be marked as incorrect.
There was no regulatory provision for an EQE review procedure, and no technical provision either, given that the examiners were not openly named and were not obliged to give duly substantiated reasons for their marking. Thus all legal protection for the candidate was practically denied from the outset. It was unbelievable that such an authoritarian approach was taken in a supranational organisation subject to European law.
Decisions lacked transparency and fairness, and might conceivably be swayed by irrelevant factors: for example, the appellant, being German, might have been eliminated because the number of German professional representatives was already disproportionately high compared with other countries, especially as although answer papers were made anonymous, his nationality could be inferred from his answer's drafting in German. Since grading decisions were taken by the Examination Board, not by the examination committee that had marked the answers, results could be influenced in a way that seemed irreconcilable with the objectivity requirement, the equal treatment principle and the required procedural protection of fundamental rights in relation to a professional qualifying examination. This enabled examination decisions to be taken on the basis of pass quotas or national quotas.
4. These arguments did indeed constitute substantiation under European law, as the rule-of-law principle, the equal treatment principle, freedom of profession, general freedom of action and the right of recourse to the courts were very much fundamental principles of European law.
5. Following the first oral proceedings before the Appeal Board the appellant submitted his provisional counterstatement (vorläufige fachliche Gegendarstellung), in which for each of his answers to Paper D he gave the reasons why he should have been given more marks than the two examiners had actually awarded.
VIII. At the end of the second oral proceedings the appellant submitted the following requests:
1. that the Office should seek a neutral expert opinion to demonstrate that the appellant's technical objections to his marking were justified and ought to result in his passing the examination because a number of correct and acceptable answers as shown in detail in his technical objections had been marked wrong, incorrect or inadequate;
2. that the contested decision that he had failed the examination be set aside, and the matter remitted to the Examination Board with instructions to decide again whether he had passed the examination on the basis of the counterstatement that he had submitted.
Reasons for the decision
EQE marking and decision-making procedure
1. EQE procedure is governed by the "Regulation on the European qualifying examination for professional representatives" (REE) adopted by the Administrative Council of the European Patent Organisation under Article 134(8)(a) EPC, and by the implementing provisions (IP) thereto drawn up by the Examination Board under Article 7(6) REE.
2. Application for enrolment to the EQE is open to those who have the educational and professional qualifications laid down in the REE. The purpose of the EQE is to establish whether candidates are fit to practise as professional representatives before the European Patent Office.
3. The EQE comprises four examination papers, A to D (Article 13(3) REE), each relating to specific knowledge and abilities that professional representatives need in order to practise their profession. A first-time candidate who fails to achieve the minimum grades required to pass the examination may resit failed papers any number of times, but is not deemed to have passed the EQE in its entirety until he has obtained a pass grade for each paper.
4. For the purpose of conducting the EQE the Examination Board appoints four examination committees (Article 4(1) REE). Responsibility for marking paper D, relating to the legal knowledge expected of the candidate and to his powers of legal assessment (Article 13(3)(d) REE), rests with Examination Committee III. Part I of Paper D consists of individual questions (11 in 2004), Part II of one or more interrelated situations on which the candidate is required to give an opinion, where appropriate by answering the questions formulated in the paper. In view of the large number of EQE candidates every year (around 1 000 for Paper D in 2004 (source: Statistics on the results of the 2004 EQE, on the internet under www.epo.org, click on European qualifying examination and Examination results)) and the fact that each answer paper is marked by two committee members ("examiners"), Examination Committee III likewise consists of a large number of examiners who are EPO employees or professional representatives. Two examiners on a committee each separately mark the individual answer papers. Under Article 24(1) REE, candidates' anonymity must be respected when their papers are marked. Consequently, the Examination Secretariat gives the answer papers to the examiners anonymously, encoding them with a number allocated to each candidate and answer paper. Only the Secretariat knows the candidates' names. To ensure that each of the two examiners marks the answer independently, each examiner too is assigned a number for the marking procedure. Once the examiners have marked the answers, the examination committee submits each of them together with its marking sheet - on which details of the marks awarded by each of the two examiners for the candidate's answers must be recorded - and a grading proposal to the Examination Board (Article 8(b) and (c) REE, Rule 6 IP). The Examination Board takes note of the grades proposed by the examination committees, determines the grade for each paper and decides whether the candidate has passed or failed (Article 7(3) REE). This decision too is taken anonymously. It is only after the Examination Board has taken its decisions that examination results are assigned to the names of the candidates by the Examination Secretariat, which notifies each candidate of the Examination Board's decision in his case. This notification is sent together with the marking sheets for the candidate's answer papers. Candidates have already received a copy of their own answer papers, after the examination.
5. The Examination Secretariat publishes an annual compendium of each of the four examination papers, which anyone can obtain from the EPO. The compendium for Paper D at issue here contains the examination paper itself together with a model solution (marked "Possible Solution"), a general report on the paper by the examiners ("Examiners' Report"), a marking sheet indicating the maximum marks awarded for the marking complexes it contains, and the answer of a successful candidate in each of the three official languages as an illustration of what is expected.
Allegedly unverifiable examination decisions
6. The appellant initially alleged that the EQE decision-making procedure contravened rule-of-law procedural principles because it made it impossible for candidates to verify their grading in technical and legal terms.
7. In the Appeal Board's view this allegation is structurally unjustified.
8. Rule 6(1) IP stipulates that the marking sheets must contain details of the marking. One of the purposes of this rule is specifically to make Examination Board decisions individually verifiable for the candidate (as already intimated in D 12/82, OJ EPO 1983, 233, point 4 of the reasons). As the Appeal Board put it in an earlier decision in a somewhat different context (D 1/01 of 23 April 2004, unpublished, point 2.1 of the reasons), Rule 6 IP despite constituting subordinate legislation is no mere formality, but an element of the examination procedure which is essential for candidates' rights, and its violation can constitute a defect in the examination procedure that may entail setting the contested decision aside.
9. Details of the marking are deemed to include sufficient sub-division of the maximum achievable mark and the candidate's overall mark into sub-marks, and an indication of the substantive and legal issues for which those sub-marks were awarded. Even without in extenso substantiation, this information together with the documents published in the compendium enables a candidate to verify the Examination Board's decision in his case. On the basis of his marking sheet he can compare his answers with the "Possible Solution" and the answers of his fellow candidates and thus establish whether and to what extent, i.e. for which sub-aspects of the paper, his answers were marked as correct/complete or incorrect/incomplete and also whether the marks awarded for his answer might have been the result of an incorrect evaluation that would be subject to review by the Appeal Board (see also D 3/03 of 23 April 2004, unpublished, point 4 of the reasons, in which the appellant had argued along similar lines).
10. With regard to Part I of Paper D, the marking sheet published in the EQE 2004 compendium and sent to the candidates satisfied the requirements of Rule 6(1) IP. Since it contains sub-divisions down to small numbers of marks for each of the 11 questions in that part and therefore cannot be objected to as a basis for the verifiability of the marking under Rule 6(1) IP, the appellant in the present case had no right to the inspection of further documents. On the other hand, the marking sheet for Part II of Paper D was inadequate, and indeed unusable for purposes of verifying the examination decision. Even in the light of the paper's structure and the compendium's "Possible Solution", an outsider would be unable to determine which elements of the candidate's answer for Part II of Paper D had been assigned the marks in Sections A, B, C and D of the marking sheet. That was particularly serious in the present case because just one of those sections, Section D, accounted for nearly half the marks available for Part II of Paper D.
11. However, with regard to the marking of the appellant's examination performance this defect was remedied in the appeal proceedings by the fact that the Appeal Board arranged for the appellant to be given access to his detailed schedule of marks for Paper D II, identified as "strictly confidential" by the Examination Board, and thereafter gave him the opportunity to file objections to this marking.
12. As the marking sheet sent to the appellant did not meet the requirements of Rule 6(1) IP, the appellant in the present case was entitled to inspect the detailed schedule of marks, which did satisfy those requirements. It may be true that Appeal Board decisions have on occasion indicated that the candidate is not entitled to the disclosure of "any schedules of marks used by the examiners" (D 13/02 of 11 November 2002, unpublished, point 6 of the reasons), even if "greater transparency would give the unsuccessful candidate more information about where and why he failed to meet the requirements" (D 12/82, loc. cit., point 6 of the reasons). Yet in the Appeal Board's view these arguments must not be taken out of context. They relate to situations in which the marking sheets made available to candidates evidently met the minimum legal requirements - if only just (D 12/82).
13. That does not imply that there is always an obligation on the examining bodies to produce and publish a schedule of marks with minute sub-divisions into as little as half a mark for individual aspects such as were included in the internal schedules ultimately handed over in the present case. Such fine sub-divisions of the marking are generally left to the discretion of the examining bodies as to the value of individual details of the answer papers, which is not subject to legal review, and are more likely to conflict with the examiners' obligation, when marking individual parts of a candidate's answers, to be mindful of their value in the overall context of the paper (D 3/00, OJ EPO 2003, 365, point 3 of the reasons). Furthermore, the schedules and their sub-divisions support the requirement enshrined in Article 16 REE for uniform marking of EQE candidates' answers. Thus in producing schedules of marks there has to be a trade-off between their purpose of ensuring uniform marking (Article 16 REE) and the need also to allow for fair marking of answers which deviate from the scheme but are at least reasonable and competently substantiated. The schedules must therefore leave some room for manoeuvre and - merely - be sufficiently detailed to constitute details of the marking within the meaning of Rule 6(1) IP allowing candidates to verify, on the basis of documents published or made accessible, whether the marking of their answers infringed marking principles the respect of which is subject to review by the Appeal Board (thus already in D 12/82, loc. cit., point 3 ff of the reasons).
14. However, in keeping with the statement of the President of the EPO which the head of the Examination Secretariat read out at oral proceedings, the Appeal Board is of the opinion that existing marking schemes that have actually formed the basis for marking a candidate's answers should also be made accessible to the candidate. The Appeal Board considers it inconsistent with rule-of-law principles to maintain "secret files" which are not accessible to examination candidates, containing documents which form the basis for marking those candidates' papers and may have a decisive impact on their opportunities for legal defence (similarly D 18/04 of 28 January 2005, unpublished, point 2.2 of the reasons, in that case in relation to relying on a secret "List B" for the purpose of refusing enrolment). Hence the schedules of marks complying with Rule 6(1) IP that are made accessible to the candidates should tally with those actually used for marking.
Absence of a more extensive obligation to substantiate
15. The appellant further argues that he is legally entitled to individual substantiation of the marks awarded for each of his answers, involving direct indications - possibly in the form of comments on the answer paper itself - of the reasons why the examiners had assigned (only) the marks actually awarded for the individual answers.
16. The REE and the IP do not provide for any obligation to substantiate a negative examination decision beyond sending the marking sheets with details of the marking.
17. Rule 68(2) EPC, under which decisions of the EPO which are open to appeal must be reasoned, is not applicable to EQE procedure because the decisions of the Examination Board do not constitute decisions of the EPO. According to Article 2 REE, the Examination Board is a mixed board made up of employees of the EPO and members of the Institute of Professional Representatives before the EPO. Although Article 134(8)(a) EPC empowers the Administrative Council of the European Patent Organisation to adopt provisions governing the conduct of the European qualifying examination, such provisions govern matters which do not stricto sensu fall within the sphere of application of the EPC, which according to its Article 1 establishes a system of law common to the contracting states for the grant of patents for invention. The REE and the IP are lex specialis for the EPC, and in connection with them the EPC therefore applies only where they expressly refer to it (established case law following D 12/97, OJ EPO 1999, 566, Headnote I and point 2 of the reasons, see e.g. again D 3/03, point 3(iii) of the reasons), which is not the case with regard to Rule 68 EPC.
18. This legal position - that there is no obligation to substantiate Examination Board decisions other than as required by Rule 6(1) IP - is based on the relevant legislation and is recognised in the Appeal Board's established case law as being applicable at least to Examination Board decisions in which the Examination Board cannot exercise any real discretion, the pass/fail decision being merely the arithmetical outcome of the marks achieved in the individual papers. As such examination decisions had already been the norm in the past, with only a few borderline cases in which the Examination Board was able to exercise discretion over whether the candidate in view of the overall picture provided by his answer papers appeared fit to practise as a professional representative despite failing to achieve the minimum grades, in D 12/97 the absence of an obligation to give reasons was held to be the rule, its presence the exception (D 12/97, loc. cit., point 2 of the reasons, but also D 1/93, OJ EPO 1995, 227, point 12 of the reasons, and D 18/04 of 28 January 2005, point 2.2 of the reasons). Under the examination law currently in force, the Examination Board no longer has any power of discretion. Article 17(1) REE and Rules 4 and 5 IP prescribe the marks that candidates have to achieve in order for the Examination Board to declare them to have passed.
Extent of the Appeal Board's power of review
19. Apart from the fact that the marking sheets under Rule 6(1) IP already have a decision substantiation function - though not to the extent claimed by the appellant - and that they were introduced into EQE procedure for that very purpose (D 12/82, point 5 of the reasons), in the Appeal Board's view - a view already underlying D 12/97 (point 3 of the reasons) - the extent to which the principles of rule-of-law process also demand individual substantiation of examination decisions cannot be assessed without consideration of the extent of the Appeal Board's powers of review under Article 27(1) REE. The absence of an obligation to provide individual substantiation is to be seen in connection with the fact that Examination Board decisions in EQE proceedings are subject to only limited judicial review. The Appeal Board's powers in that respect are far more limited than for example the power and duty of review of German administrative courts as portrayed by the appellant in his written and oral submissions. There is no statutory provision for an obligation to supply substantiation of examination decisions more extensive than that constituted by the marking sheets, and it would therefore have to be established as a precedent by the Appeal Board, which could only be appropriate in order to guarantee the candidate's existing right to have the decision reviewed by the Appeal Board or, as the appellant puts it, to guarantee the candidate's right to effective procedural protection of fundamental rights.
20. Under Article 27(1) REE, appeals against Examination Board decisions may be filed only on grounds of infringement of the REE or of any provision relating to its application. Article 27(1) REE thus in essence merely gives the Appeal Board the power to review the legality of the process, i.e. to consider whether the examination procedure complied with the relevant regulations and instructions. Hence the Appeal Board's powers of review according to the established case law of the boards of appeal (following D 1/92 and D 6/92, OJ EPO 1993, 357 and 361, see e.g. again D 3/00, loc. cit., point 1 of the reasons) are limited to examining whether the REE, the provisions relating to its application or higher-ranking law have been infringed. The Appeal Board does not have the power to reconsider the entire examination procedure on the merits and set its evaluation of the merits above that of the Examination Board. Technical review of the marking of an answer in terms of whether it is objectively correct or appropriate, as the appellant demands in the light of German law, is denied to the Appeal Board by Article 27(1) REE (D 20/96 of 22 July 1998, point 9 of the reasons). On appeal, the Board can only consider facts constituting a mistake in the examination procedure which can be established without re-opening the whole marking procedure, for example where the two examiners differ so widely in their marking that the difference in marks alone suggests an infringement of the principle of uniform marking, or where a question is inconsistently or incomprehensibly formulated (D 13/02, point 4 of the reasons), or where the examiners based their marking on a technically or legally false premise on which the contested decision is based (D 16/02 of 16 July 2003, point 3 of the reasons, D 6/04 of 16 July 2003, point 3). The actual marking of examination performance in terms of how many marks an answer deserves is not subject to review by the Appeal Board; nor are the Examination Board's criteria for determining the weighting of the expected answers to the examination questions (D 13/02, point 5 of the reasons).
21. Discretion being essential in the marking process, and subject to only limited judicial review by the Appeal Board, the Board has found it to be open to the legislator not to prescribe that examination decisions be reasoned other than as required by Rule 6(1) IP, and to confine review to clear abuses of discretion in the marking procedure (D 12/97, OJ EPO 1999, 566, point 3 of the reasons). In the latter decision, the Board as in the present case also found that the items sent to unsuccessful candidates under the then Rule 9(2) IP, now Rule 6(1) IP, sufficed for that purpose.
22. Under Article 125 EPC, in the absence of procedural provisions in the EPC the EPO takes into account the principles of procedural law generally recognised in the Contracting States. However, it is up to the party invoking the general applicability of such principles within the meaning of Article 125 EPC to demonstrate their existence and their substance (D 12/97, loc. cit.). The appellant has not expressly cited Article 125 EPC and has also invoked only German examination law. He has not commented on the Swiss Federal Court judgment of 31 August 2005 (2P.311/2004) forwarded to him by the Appeal Board, concerning a constitutional appeal against a decision of the bar examination board in Basle (Advokaten-Prüfungsbehörde Basel-Stadt).
23. The latter judgment does not support the appellant's legal position. On the contrary, it shows that in other legal systems among the EPC contracting states there are indeed examples of an appeal body with only limited power of review, which constitutes the internal justification for the absence of a more extensive obligation to substantiate examination decisions.
24. Thus from the Swiss Federal Court's judgment it is evident that in a "staatsrechtliche Beschwerde" the court will review the marking of examinations only to check that the relevant cantonal procedural provisions have been applied in a non-arbitrary manner with due allowance for minimum constitutional guarantees, and will exercise particular restraint as regards substantive evaluation, not intervening unless the authority has allowed itself to be swayed by irrelevant or otherwise quite obviously unsound considerations, such that its decision appears in constitutional terms to be no longer tenable and hence arbitrary (point 3.1 of the reasons).
Absence of a more extensive obligation to substantiate as a contravention of other, higher-ranking legal principles
25. The appellant above all relies on the fact that German examination law in keeping with the constitution prescribes that every candidate is entitled to substantiation of the examination decision in order to be able to exercise his right to subsequent review for the raising of substantiated technical objections to that decision, especially in view of the fundamental right to freedom of profession and his right to "effective procedural protection of fundamental rights". He maintains that only purely examination-specific parameters such as degree of difficulty or comparability with other candidates' performance are subject to the examiners' discretion and thus exempted from review; in the review procedure, on the other hand, the examiner has to address technical objections in a precise and duly substantiated manner. Yet what is not quite clear from the appellant's submissions is the extent to which all these details of German examination law are supposed to be directly derivable from constitutional requirements. However, that is not a determining factor in the present case.
26. German examination law is not relevant as such to the conduct of the EQE examining bodies. Yet to the Appeal Board it seems obvious that all administrative bodies and boards of appeal which can have an impact on the legal status of affected parties have to discharge their duties in accordance with the principles of the rule of law. This is a very general principle, however, and there may be differing perceptions of its implications in specific circumstances. In any case, the requirement for rule-of-law process in the context of an international legal system drawing upon the normative moral concepts of a large number of contracting states cannot be held to imply that only procedure specifically true to the details of German examination law would satisfy these principles.
27. In its first communication the Appeal Board had referred the appellant to a Federal German Constitutional Court decision of 4 April 2001 (2 BvR 2368/99) concerning a constitutional appeal against failure of the EQE which alleged that the absence of an obligation to substantiate decisions on failing the EQE was unconstitutional. In its decision the Constitutional Court questioned whether the requirement for an obligation to substantiate examination decisions, such as had been inferred in the case in point from a judgment of the Federal German Administrative Court, could actually be generalised to apply to professional examinations of all types in Germany. It concluded that the criteria cited by the constitutional appellant from the above Administrative Court decision, especially with regard to reasoned examination decisions, could not at least for the present be deemed to constitute the structural elements of a system of fundamental rights envisaged by Germany's Grundgesetz, such as its Article 24(1) also guaranteed in relation to supranational organisations (point 4(b) of the reasons). From this it may be inferred that the Constitutional Court does not regard every form of German case law (in this case the Administrative Court's) on examination decisions as an expression of such structural elements, especially in relation to the obligation to substantiate examination decisions.
28. The details which the appellant cites with regard to the elements that German case law requires in reasoned examination decisions are therefore, even from the perspective of that constitutional case law, not relevant to the rule-of-law requirements applicable to the conduct of the EQE. In the cited decision the Constitutional Court found the absence of an obligation to substantiate decisions under the REE not to be inconsistent with these structural elements of a system of fundamental rights.
29. The appellant further claims that the issuing of examination decisions without any obligation to substantiate them is in breach of fundamental principles of European law, in particular European administrative law, and that the protection of fundamental rights under the German constitution applies mutatis mutandis under European law. Despite the Appeal Board's request, the appellant has not specified the international legal sources to which he refers as "European law". He has not demonstrated the existence or substance of any international legal norms or recognised principles of international law which the absence of an obligation to substantiate EQE decisions other than as required by Rule 6(1) IP and the limitation of review to the checking of legal aspects might be held to contravene.
30. The European Court of Human Rights, in its judgment in Van Marle and others against the Netherlands of 26 June 1986, point 34 ff, deemed it reconcilable with Article 6(1) ECHR that the decision of an examining body can be reviewed by a judicial authority in respect only of objections to the proper conduct of the proceedings, e.g. that the decision was arbitrary, ultra vires or involved procedural irregularities, and to proper application of the requirements for registration, because the assessment of knowledge and experience for carrying on a profession under a particular title is so far removed from the exercise of the normal judicial function that the safeguards in Article 6 ECHR cannot be applied (end of point 36). The Court upheld this principle in its decision in San Juan against France of 28 February 2002 (end of decision), and the Swiss Federal Court also referred to these decisions in the cited decision with regard to the reconcilability of its limited power to review examination decisions with Article 6 ECHR (point 2.6 ff of the reasons).
31. Hence the limitation of the Appeal Board's power of review under Article 27(1) REE cannot be deemed contrary to international law, and the same is therefore true of the absence of an obligation to substantiate examination decisions other than as required by Rule 6(1) IP, as long as that obligation, as in the EQE procedure, relates to aspects of such decisions which are not subject to review by the Appeal Board.
Further general objections to EQE procedure
32. Article 7(3) REE, with which the appellant takes issue, gives the Examination Board the power to determine the final grading of each paper and decide whether the candidate has passed or failed. There can be no objection to that, as under Article 2(1) REE it is the Examination Board which conducts the examination, even if under Article 4(1) REE it appoints examination committees for that purpose. This arrangement of the examination procedure, with the delegation of (sub-)tasks, is essential in view of the number of EQE candidates every year (see point 4 of the reasons above). Above and beyond that, an overall decision by the Examination Board is also necessary because each of the examination committees is responsible only for the marking of certain examination papers.
33. The appellant has alleged that EQE procedure makes no provision for reconsideration by the Examination Board in the event of a candidate appealing against a decision. That is not the case, even if the procedure (interlocutory revision) is not organised in the same way as the German procedure portrayed by the appellant. Under Article 27(3) REE the Examination Board will rectify its decision if it considers an appeal admissible and well-founded. Thus before remitting the appeal to the Appeal Board it must itself consider whether the grounds given by the appellant justify setting the decision aside. If it finds that they do, it must allow the appeal, i.e. set its decision aside. If not, it remits the appeal to the Appeal Board, without comment as to its merit (for appeals under the EPC see Article 109 EPC, on which the provision is modelled). To understand this arrangement it must be borne in mind that, unlike administrative court procedure, the proceedings before the boards of appeal do not involve the first-instance department, the aim being to prevent the department which took the decision from influencing the appeal proceedings by setting out its grounds for not rectifying it.
34. The appellant's suggestion that results are open to manipulation, in particular on the basis of nationality, is unfounded, given the way in which the marking procedures are organised, because under Article 24(1) REE the entire procedure, even before the Examination Board, is anonymous (see point 4 of the reasons above).
35. The object of the qualifying examination is to establish whether the candidate is fit to practise as a professional representative, which essentially also involves acting as a legal adviser or lawyer. Possession of the requisite knowledge and abilities is demonstrated by the examination results alone, not by completion of the prescribed training or by paper qualifications. Paper D tests only the candidate's legal knowledge and his abilities as a legal adviser or lawyer. A candidate incapable of achieving a high enough mark to pass this paper is not fit to practise as a professional representative.
36. The EQE does not have a training function; it merely serves to determine the candidate's fitness to act as the professional representative of parties to proceedings before the EPO. Its purpose is to establish that the candidate is qualified, not to qualify or train him (D 12/82, loc. cit., point 6 of the reasons). Consequently it is up to the candidate to acquire the knowledge and ability needed to pass the examination, using the many resources available for that purpose. The publication of the compendia for past examinations among other things serves the purpose of helping future candidates by making illustrative materials available in preparation for the examination.
The appellant's "technical objections"
37. After the second oral proceedings the appellant filed an extensive opinion, to which he annexed a "Possible Solution to Part II of Paper D 2004", indicating that this solution had not been checked for correctness and served solely as an example of the approach proposed by the candidate, in particular for Sections A to C of Part II of Paper D 2004. This is evidently a hypothetical answer paper. Be that as it may, assessment of the appellant's examination performance can be based only on the answers he submitted on the day of the examination. Only those considerations that can be attributed to, i.e. derived from, the candidate's arguments in his answer can be made the basis for marking that answer. Subsequent explanations cannot be taken into account (D 16/02, point 3.2 of the reasons, at the end). It is not possible to mark an answer on the basis of a comparison with another answer, be it real or hypothetical, that the appellant could have formulated but did not formulate (D 13/02, point 3 of the reasons, D 17/05 of 19 July 2005, point 2 of the reasons). The Appeal Board has therefore not concerned itself with this annex to the appellant's submission.
38. Of the appellant's extensive arguments in the rest of the submission, only the three marking issues dealt with below might originally be attributable to mistakes which might as such be subject to review by the Appeal Board. They relate to details of points A.7, A.8 and D.7 of the schedule of marks or the "Possible Solution" and an error in the addition of the marks awarded in Section B of the marking sheet by one of the examiners, who is supposed to have miscalculated by 0.5 marks to the detriment of the appellant.
39. The corresponding upgrades, if justified, might give the appellant a maximum of 4.5 extra marks, still leaving him short of a total good enough to pass Paper D. He obtained 44 marks in Paper D, and 50 are needed to pass the examination.
40. Aside from the "error in addition", which in the appellant's favour may be assumed to have been present and not to be the result of a subsequent change of mind before the examiner filled in the final more general marking sheet intended for the appellant, the appellant has failed to show that one or both of the examiners made a mistake in the marking that had an impact on the marks awarded for the appellant's answer.
41. As regards the omission of Slovenia in Section D.7 of the detailed schedule of marks, which mentions certain EPC Contracting States as being covered by the EP designation in the Leda PCT application but does not include Slovenia, which at the relevant time had likewise already been an EPC Contracting State, the appellant conceded at oral proceedings that this omission was totally irrelevant to the marking of his answer, as he himself had not specifically mentioned any EPC Contracting States in his answer. On the contrary, in his answer he stated categorically and thus inaccurately that the Zeus EP application was prejudicial to the novelty of the Leda PCT application and that Leda could therefore not be granted a patent in Europe. The legal peculiarity of this aspect of the situation, as reflected in the marks assigned for D.7 and D.8, is that the earlier Zeus EP application did not form prior art with effect for the Contracting States mentioned there because when the application was filed it was not yet possible to designate those states, so patent protection could indeed have been obtained for them through the Leda PCT application. The appellant made no mention of this peculiarity whatsoever in his answer, so could not be deemed to have identified it.
42. The appellant further alleges that the marginal comment made by one of the examiners on his schedule of marks for points A.8 and A.9 - that the appellant had made a "serious priority error" - was "incorrect", but he offers no substantiation, and the Appeal Board cannot see that this judgment is clearly untenable in legal terms. On the contrary, the appellant again in relation to this aspect of Part II of Paper D failed to identify the problem involved, which in the detailed schedule of marks is sub-divided into the answer elements of Sections A.8 ff. The "Possible Solution", under "Basic software" (Compendium, p. 68/69), states that the disclosure of the basic software at the conference "will be prior art for later applications for any matter that cannot claim priority of Oedipus-EP". It later says that there might be a priority problem if the Oedipus EP application were to be assigned to Electra before priority was claimed for Electra, because with Electra as applicant the Electra-FI application might be considered to be the first application within the meaning of Article 87 EPC. One answer proposed in the "Possible Solution" is that the problem could be avoided by not (or not yet) assigning the Oedipus EP application to Electra. On this point the appellant under "Status und Rechtsstand der Oedipus-EP" (status and legal position of the Oedipus EP application) first argues that Oedipus-EP provides priority for the basic software (item (3)) because Oedipus-EP is Oedipus' first filing for this basic software. Under "Schutz der Erfindungen" (protection of the inventions, transcribed in the submission of 30 June 2006, p. 49) the appellant then recommends filing a new - international - application for (inter alia) the basic software and claiming the priority of the Oedipus EP application; this would entail transferring this application to Electra. The problem discussed in the "Possible Solution" is not mentioned at all in the appellant's answer and was therefore rightly deemed not to have been identified.
43. Otherwise the appellant's arguments are confined to a detailed presentation of his view of the meaning and the degree of correctness and completeness or at least acceptability of his answers to Paper D and to substantiating why they deserved more marks than the examiners had actually awarded.
44. As these aspects of the marking of the answer paper are not subject to review by the Appeal Board (see point 20 of the reasons above), the Board cannot concern itself with the substance of these arguments, with the exception of the points mentioned earlier. For that reason the appellant's request for an expert opinion to be sought must also be rejected. In any case, the Appeal Board itself would have the necessary expert knowledge if it were within its legal power to reconsider the marking of the appellant's examination performance on the merits. At the second oral proceedings, in relation to the request for a submission deadline extension, the Appeal Board had pointed out that its powers of review were limited, and the appellant had stated in person that he was already aware of that.
45. For all the above reasons the appeal must be dismissed.
For these reasons it is decided that:
The appeal is dismissed.