Brief outline of the case
The unsuccessful candidate to the EQE appealed the decision of the EQE Examination Board that he had not passed the EQE.
With decision D33/22, the Disciplinary Board of Appeal (DBA) rejected the appeal.
The candidate filed a petition for review against the decision of the DBA.
The petitioner’s point of view
The request is based on the fact that, pursuant to Art 112a(2,c), there has been a serious violation of Art 113(1).
The petitioner argues that Art 112a is applicable to proceedings before the DBA for the following reasons:
- Application of Article 112a is not restricted to certain BAs.
- The applicability of Art113(1) to proceedings before the DBA implies the applicability of Art 112a to the DBA.
- R 108(3) pursuant to Article 164(2) is to be interpreted in accordance with Article 112a. In this respect, the petitioner referred inter alia to Art 125.
The EBA’s decision
The petition for review was duly filed within the prescribed time limit.
For the benefit of the petitioner, the EBA considered that an objection under R 106 was not possible. The petition for review was thus not inadmissible for this reason alone.
The EBA did not agree with the petitioner that Art 112a is applicable to proceedings before the DBA, but agreed with decision D 3/20. D 3/20 dealt with a decision of the EQE Secretariate not admitting a person to sit the EQE.
The applicable procedural and substantive provisions are set out in the Regulations governing the European Qualifying Examination (REE), the Implementing Regulations thereto (IPREE), the Supplementary Rules of Procedure of the Disciplinary Board (RPBDA) and, by reference in Article 24 (4) sentence 1 REE, from Part IV (i.e. Articles 12 to 25) of the Regulations in Disciplinary Matters for Authorised Representatives (RDMAR).
The provisions of the EPC do not apply to proceedings before the DBA unless explicitly referred to. Such explicit references are found in Articles 13(2), 16, 21(2), 22(3), 24 and 25(1) REE and in Articles 8(1), 9(1) and 17 IPREE.
The regulations mentioned above do not provide for a “Enlarged Disciplinary Appeals Board” as an additional appeals body in disciplinary matters. It follows that an EQE candidate who challenges a decision of the Secretariat or the Examination Board has no possibility of appealing and the petition for review must therefore be held inadmissible.
After receiving the provisional opinion of the EBA, the petitioner made a reference to Art 6(1) ECHR.
All the arguments brought forward after receipt of the provisional opinion of the EBA were dismissed.
The EBA held that, Art 164(2) regulates the relationship between the EPC and the Implementing Regulations to the EPC, and thus between primary and secondary law, the former taking precedence over the latter. The examination regulations are not mentioned in this legal provision.
For the EBA, Art 164(2) cannot be applied mutatis mutandis to the effect that the examination regulations are to be classified as secondary law subordinate to the EPC. The starting point for their classification is the provision in the EPC according to which the Administrative Council is authorised to regulate the status of professional representatives.
The EBA argued that the composition of the DBA is of 3 LQM of the BA and 2 professional representatives, but that the competence in disciplinary matters could have been left to the epi alone.
The reference to the BA in Article 112a EPC 2000, without restriction to specific BAs provided for in the EPC and without explicit exclusion of the DBA, cannot – notwithstanding the fact that the DBA was established more than 20 years before the EPC 2000 came into force – as the applicant believes – be regarded as an indication that this provision applies to all boards, including the DBA.
The legislators of the EPC 2000 also did not adopt any provisions which could establish the competence of the EBA under Article 112 or 112a with regard to the DBA. In particular, the legislators did not include the DBA in Art 21, which is entitled “Boards of Appeal” and foresees specific compositions, but all without professional representatives.
Comments
In spite of the argumentation brought forward by the EBA, to consider the petition as inadmissible, the unsuccessful candidate has a point when he claims that, application of Art 112a is not restricted to certain BA, and that the applicability of Art113(1) to proceedings before the DBA implies the applicability of Art 112a to the DBA.
The EBA’s argumentation is therefore not convincing. It has the same probative value as when the EBA decided in G 1/21, that this decision was only applicable to the BA. To my knowledge, neither Art 116, nor R 105 and 106, make a distinction between BA and first instance divisions.
Firstly, to put in the same basket decisions of the EQE Secretariate, i.e. taken before a person sat the EQE, and a decision of the EQE Examination Board, i.e. after a candidate sat the EQE, goes too far. It is interesting to note that R 19/23 was formerly registered under R 01D/23. The EBA must have had second thoughts and wanted to find ways to get red of the problem.
Secondly, when a professional representative has been sanctioned by the Disciplinary Committee of the epi, he can appeal this decision to the DBA. That such an appellant would see a petition for review of a decision of the DBA not admissible up front, is difficult to follow.
The intention of the EBA was clearly that any petition for review following a decision of the DBA, should not be admissible up front. In spite of what the EBA argues, in remains to be seen in how far this position is compatible with Art 6(1) ECHR.
That when, Art 112a was entered in the EPC in 2000, situations like the present one were not considered, can be held as a mistake. Taking this mistake against an unsuccessful candidate to the EQE is, from a strict legal point of view, not correct.
That an unsuccessful candidate to the EQE should do better than going through all possible judicial instances, and make efforts to be successful at the EQE, is certain. But bereaving him of a legal means of redress is as bad as the candidate’s attitude.
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