|European Case Law Identifier:||ECLI:EP:BA:1989:D000589.19890922|
|Date of decision:||22 September 1989|
|Case number:||D 0005/89|
|Language of proceedings:||DE|
|Download and more information:||
|Title of application:||-|
|Headnote:||1. When drawing up the examination procedure the Examining Board has discretionary powers whose exercise may be scrutinised only for possible misuse (confirmation of D 1/81, OJ EPO 1982,258).
2. If the examination procedure requires a candidate without a university-level qualification to have worked for three additional years as corroboration of an equivalent level of knowledge, this does not constitute a misuse of discretionary powers.
|Relevant legal provisions:||
|Keywords:||Extent of the powers of investigation and decision of the Disciplinary Board of Appeal
Examination Board - drawing up the examination procedure - discretionary powers
Summary of Facts and Submissions
I. In a letter dated 22 November 1988 the appellant requested enrolment for the European Qualifying Examination on 19-21 April 1989. As corroboration of his scientific or technical training within the meaning of Article 7(1)(a) of the Regulation on the European Qualifying Examination for professional representatives before the EPO dated 21 October 1977 (hereinafter referred to as "the Regulation", published in OJ EPO 1983, 282) and in accordance with the examination procedure relating thereto drawn up by the Examination Board (OJ EPO 1980, 220), the appellant submitted a diploma, a certificate and written confirmation from Juventus Zürich, Abend-Technikum Zürich, Höhere Technische Lehranstalt, stating that he had received the diploma awarded by the telecommunications department. He also attached to his application written confirmation from his employer stating that he had been employed full-time in the patent department from 1 April 1985.
II. In a letter dated 9 February 1989 the Chairman of the Examination Board informed the appellant under Article 18(1) of the Regulation that the Examination Board had decided not to enrol him for the examination because he did not satisfy the requirements of point 5.4.1 of the examination procedure. Under that provision, a candidate must have worked full-time during a period of three years in a range of activities pertaining to patent matters in addition to the period of four years prescribed in Article 7(1)(b) of the Regulation. This corroboration was necessary because the diploma submitted had been awarded by an educational institution in the examination procedure's List B.
III. The appellant filed an appeal against that decision, claiming that there was no reason to require him to have an additional period of three years' practice in the profession since the periods of study for graduates of educational institutions in Lists A and B did not differ by three years. Furthermore, the formal education of candidates from List B was not rendered equivalent by an additional three years' practice in the profession. Nor could an employer be expected to accept a seven-year training period, given that candidates in Lists A and B had the same academic objectives. No difference in the suitability of candidates from the two lists could be established from the results of the Qualifying Examination. The legislator had not intended differences in formal education to be compensated by practice in the profession. Finally, a client could not distinguish from the term "professional representative" whether a representative had undergone seven years' training or four years plus practice in the profession.
IV. The appellant stated that he was aggrieved by the decision, which prevented him from working in private practice for three years. He was not requesting oral proceedings.
Reasons for the Decision
1. The appeal is admissible under Article 23(2) of the Regulation.
2. Under Article 23(1) of the Regulation an appeal lies from decisions of the Examination Board only on grounds of infringement of the Regulation or of any provision relating to its application. The Disciplinary Board is unable to establish the occurrence of any such infringement within the meaning of Article 23(1) of the Regulation.
3. Article 7(1) of the Regulation, which lays down the conditions for enrolment for the European Qualifying Examination, stipulates that a candidate must
(a) possess a university-level scientific or technical qualification or be able to satisfy the Examination Board that he possesses an equivalent level of scientific or technical knowledge.
(b) have worked full-time for a period of at least four years. If the candidate does not possess a university-level scientific or technical qualification, point 5.4.1 of the examination procedure (OJ EPO 1980, 220) stipulates that to show he possesses an equivalent level of scientific or technical knowledge he must have worked full-time during a period of three years in a range of activities pertaining to patent matters in addition to the period of four years prescribed in Article 7(1)(b) of the Regulation. As the appellant failed to produce corroboration of these additional three years' experience, the Examination Board was obliged to bar him from the examination. Accordingly, the contested decision infringes neither the Regulation nor the examination procedure within the meaning of Article 23(1) of the Regulation. The decision was therefore justified.
4. If the appellant nonetheless holds that the contested decision barred him unjustly from the European Qualifying Examination on the grounds that an additional three years' experience cannot be required from him under the examination procedure, he is in effect claiming that the latter is invalid and therefore inapplicable. Were that the case, then the appellant could not be required to show that he possessed knowledge equivalent to that represented by a university-level qualification by demonstrating three years' additional experience. But that would not render his appeal successful, since there would then be no corroboration at all of the equivalence of his scientific or technical knowledge to that represented by a university-level scientific or technical qualification.
5. There was no need for a request to produce corroboration of the equivalence of the appellant's knowledge to that provided by a university-level qualification since the Board of Appeal has no doubts about the validity of the examination procedure. Under Article 5(2), 1st sentence, of the Regulation the Examination Board draws up the examination procedure, which means that the Administrative Council, as the legislator responsible for the Regulation, has delegated its powers to draw up provisions to that Board. In drawing up provisions concerning examinations the Examination Board is therefore exercising powers conferred on it for this purpose by the Administrative Council, whose involvement was therefore unnecessary. The Examination Board nevertheless made the examination procedure available to the Council, who raised no objections to its issue.
6. The validity of the examination procedure drawn up by the Administrative Council or by the Examination Board on its behalf can be scrutinised by the Disciplinary Board only to a very limited extent, since the relevant bodies have discretionary powers in drawing up such procedures. This is necessary, moreover, since the legislative organ must be empowered to select from among several possible solutions the one which in its view is appropriate to the situation. The Disciplinary Board is unable to review these discretionary powers, so the chosen solution may involve inconsistencies or hardship for the appellant. That can never be avoided where different circumstances are regulated by a general rule. But as long as the legislative organ has not misused its discretionary powers in drawing up a rule - which the appellant is not claiming, nor is there the slightest evidence of such misuse in this case - the Disciplinary Board can apply the provisions concerning examinations only to the case in point, even if the appellant takes the view that a different rule would be better than the existing one. The appellant would have to take a concern of that nature to the legislator, not bring an appeal before the Disciplinary Board.
7. The Disciplinary Board therefore concludes that the validity of the examination procedure is beyond doubt. It accordingly confirms its earlier decision of 4 February 1982 (OJ EPO 1982, 258) where it found no objection to the rule laid down in the examination procedure that the completion of certain courses outside the tertiary sector is to be regarded as adequate only if the candidate has an additional three years' professional experience. The appeal must therefore be dismissed.
For these reasons, it is decided that:
The appeal is dismissed.