Wednesday, February 09, 2022 On the interpretation of Pre-Exam Questions and on Pre-Exam appeals

Candidates often ask us questions on possibilities to file a Pre-Exam appeals based on an alleged unclarity, alleged ambiguity or alleged error in a Pre-Exam question or statement or in the Examiner's Report or based on a different understanding or interpretation of the question or statement.

Below, a recent decision from the Disciplinary Board of Appeal (which is the competent Board of Appeal for EQE appeals) is discussed that presents a nice overview of the (limited) extent of the competence of the DBA, and also addresses how Pre-Exam questions and statements need to be interpreted by candidates, the Pre-Exam Committee and the Examination Board. The decision answers substantially all questions that candidates ask us on Pre-Exam appeals, so we present it in this Pre-Exam blog rather than in our Case law Blog. 

Also, we present a (non-exhaustive) overview of neutralizations of Pre-Exam statements/questions and of Pre-Exam appeals.

Interpretation

D 2/21, reason 5 provides: “The questions to be answered and the statements to be evaluated in a multiple-choice test such as the pre-examination should therefore be formulated clearly and unambiguously (see also decisions D 5/16 and D 6/16). Therefore, when setting an examination question for the pre-examination, it must be ensured that only one answer can be given to the respective statement when taking an informed and objective view or interpretation of the wording of the facts and the respective statements in the question (D 15/16, point 2.3 of the Reasons). It is thus crucial to formulate the statements in such a way that clearly only one answer, i.e. either "True" or "False", is possible and "correct" under the given circumstances (see also decisions D 5/16 and D 6/16).”

D 2/21, reason 5 concludes from this that: “[…] in a pre-examination, unclear and confusing facts or statements constitute a serious and obvious mistake (see also D 3/19, point 2.3 of the Reasons with reference to D 13/02, point 4 of the Reasons).”

D 2/21, referring to D 5./16, r. 33,  also clarifies that candidates shall not dig for exotic exceptions and candidates cannot twist the interpretation tot their advantage, and that it is rather a question of the correct interpretation or general understanding, rather than looking for exceptions or far-fetched interpretations.

D 2/21, reason 5: “However, if a statement is logical and makes sense, so that, using common sense, it is clear what answer was expected, candidates cannot rely on exceptions to the rule or explore alternative interpretations with a view to showing that a different answer might also be conceivable in specific instances (see e.g. D 5/16, point 33 of the Reasons). It follows that in the case of a pre-examination, the review requested by the appellant does not concern the question of whether the evaluation of the assessment of the respective statement stricto sensu, i.e. the appellant's assessment of the statement concerned as "True" or "False", is correct. It is rather a question of the correct interpretation or the general understanding of the statement concerned, including the facts underlying the pre-examination question and the conclusion to be drawn therefrom as to whether the statement concerned is clearly to be assessed as "True" or "False". […]”

Although the decision does not give an example, I can imagine that examples could be where, when filing a PCT application, nationality and/or residence of an application or the language of the application are not given, one can strictly not confirm that the EPO is the competent rO while this is strictly speaking of relevance – but where it would be clear from the question as a whole that this is not an aspect tested (as in Pre-Exam 2021, Question 2. Note that in Pre-Exam 2018, the EB did take an expection into account, i.e. Art.25 EPC while the question was -in my view- clearly directed to pre-grant proceedings and neutralized 4.4; the Examiner;as Report even indicates “On account of this rare possibility the statement 4.4 has been neutralised and marks are awarded for both answers”)

Appeals

Before you sit the exam

Come well-prepared to the Pre-Exam. The Pre-Exam shows pass rates of 85% and higher, indicating that Pre-Exam is well doable for well-prepared candidates. Prepare for a good legal knowledge and a good understanding of claims analysis topics (e.g., taking our Pre-Exam Intergrated course and practicing from our L-book and P-book), learn how to read and understand exam questions, to recognize what is tested and to come to answer efficiently. Also get acquantained with the exam platform wit hits secure brower, Wiseflow, and get familiar with the way the questions and statements are presented to you in Wiseflow; also participate in the mock exams under exam situations where the exam platform is tested in full operation, including camera, microphon and proctoring/invigilation.

While sitting the Pre-Exam, you can only answer with TRUE or FALSE and cannot hand-in any notes or comments. It is recommended to take some notes on paper as to how you came to an answer, such as your legal basis or your interpretation of special terms, notably the ones which you consider ambiguous, and where you sense or expect that they will be subject to discussion after the exam.

Try to prevent the need to appeal

You may possibly prevent an appeal by drawing the attention of the Pre-Exam Committee and the Examination Board to the issue via comments to our Pre-Exam blogs -where others may support and strenghten your point, and/or indicate why your reasoning is not convincing (yet)- and via e-mail to the Pre-Exam Committee and the Examination Board via the EQE secretariat (Art. 19(1) REE). If the Committee and he Examination Board are convinced that a statement must be neutralized before the results letters and the Examiner's Report are issued, the neutralization will be performed for all candidates and no appeals are necessary. The EQE Committees and the Examination Board have indicates at various occasions that they are considering the blogs and the comments posted there on when deciding whether neutralization of a statement needs to be considered (also considering otehr factors, such as statistics). The marking will thus immediately have included the neutralizations. This is presumably the most efficient, and certainly the quickest, way to get statements neutralized.

You can also file a formal complaint. For EQE 2023, the "Instructions to candidates concerning the conduct of the European qualifying examination" dd December 2022 (https://documents.epo.org/projects/babylon/eponot.nsf/0/0EBC9DA304DF20A4C125868100424C67/$FILE/Instructions_EN.pdf), item 8, provides: "Candidates wishing to lodge a complaint concerning the conduct of the examination must do, so at the latest by the end of the day on which the paper concerned takes place, by filling in the dedicated form made available by the Examination Secretariat."

For EQE 2022, the “ Instructions to candidates concerning the conduct of the EQE” (https://documents.epo.org/projects/babylon/eponot.nsf/0/0EBC9DA304DF20A4C125868100424C67/$FILE/Instructions%20to%20candidates%202022.pdf), item 8 provided: “Candidates wishing to lodge a complaint concerning the conduct of the pre-examination or the main examination can do so at the latest by the end of the day on which the examination takes place by sending an email with a written statement of the facts to the Examination Secretariat (helpdesk@eqe.org) and stating their full name and EQEReg number.” 

If that is not successful

If neither the "informal" way via the blogs or the formal way via complaints is not successful and the reasoning given in the Examiner’s Report does not make you reconsider, you may want to appeal if you obtained a FAIL – Art. 24(1) REE. If you do not individually appeal your individual FAIL decision within the 1-month appeal time limit, the individual FAIL decision in respect of your Pre-Exam becomes final and can in principle not be overturned anymore. However, in some cases, in particular where the appeal was granted quickly by the Examination Board in interlocutory revision, the neutralization that resulted from the appeal was applied widely; one should however not rely on this, and it is recommended to file your individual appeal.

A notice of appeal including the statement setting out the grounds for appeal must be filed in writing with the Examination Secretariat within one month of the date of notification of the decision appealed against – Article 24(2) REE. The appeal fee must also be paid within the same one month period - Article 24(2) REE. 

Note D 36/21, reasons 1.4.2-1.4.3 emphasized that the appeal needs to be filed according to the provisions of Art. 24(2) REE in conjunction with Article 6(1), second sentence, RPDBA, which sets out that the appeal "shall be signed by the appellant", and Article 6(2) RPDBA, which stipulates that a "notice of appeal and any written statement setting out the grounds of appeal may be filed by facsimile but a signed document reproducing the contents of every such notice and statement shall be filed within two weeks of the receipt of the facsimile". "[...] Consequently, the standard means of communication for filing an appeal [...] is an appeal document in paper form signed by the appellant;

• this document may be sent by postal services or delivered by hand to the Secretariat. 
• Article 6(2) RPDBA provides for the sole exception to this rule, namely the option to file the appeal by fax in due time provided that the original is subsequently filed within two weeks."\

An appeal filed solely by email within the time limit is not admissible - D 36.21, reason 2.

Note that, if the Board of Appeal allows the appeal, or the appeal is withdrawn, it shall order reimbursement in full or in part of the fee for appeal if this is equitable in the circumstances of the case - Article 24(4) REE. Unfortunately, no information is available (to my knowledge) in the public documentation woth respect tot he conditions and amounts of the refunds – it is e.g. not known whether whether the fee will be refunded in full or in (which) part if the appeal is withdrawn immediately after the EB forwarded the appeal tot he DBA, or when the DBA issued its preliminary opinion, just before oral proceedings (if requested), or during oral proceedings but before the decision is pronounced. Also, there is no public information as to how many appeals are withdrawn and at which moment; there is also no information published about the topics that have been raised in appeals that were withdrawn.

An appeal is examined in two-steps:

First, the Examination Board (who issued the FAIL decision based on the marking done by the Pre-Exam Committee) will review their decision in view of the arguments submitted. If the Examination Board considers the appeal to be admissible and well-founded, it shall rectify its decision and order reimbursement of the fee for appeal – Art. 24(3), 1st sentence REE -, i.e. interlocutory revision is granted. The Examination Board can only consider arguments based on the grounds that the REE or any provision relating to its application has been infringed – Art.24(1) REE. Arguments will need to be convincing as the Examination Board also approved the original answers, so you will need to make them change their mind. The EB has not indicated what the scope of their competence and the extent of their examination as to, e.g., substantive arguments and interpreation is, but it seems that they follow the scheme set out by the DBA, albeit taking a less strict approach.

Then, if the appeal is not allowed by the EB within two months from notification of the decision -i.e., if the EB did not grant interlocutory revision-, it is remitted to the Disciplinary Board of Appeal of the EPO – Art. 24(3), 2nd sentence REE. In D 2/12, the DBA gives a nice overview as to how they apply the principle that appeal may only be on the grounds that the REE or any provision relating to its application has been infringed – Art.24(1) REE: their scope is quite limited by, in particular, Art. 24(1) REE and consistent case law of the DBA.

D 2/12 provides the following (emphasis added; line breaks added):

"3. The appellant requested that the contested decision be set aside. He alleged obvious and serious errors in the assessment of his answers to statement 12.4 in question 12 and statement 19.4 in question 19 of the pre-examination 2021. He essentially argued that in the Examiners' Report - Pre-examination 2021 (hereinafter "the report"), the answers to the statements 12.4 and 19.4 and the reasoning given for them were not correct.

4. In accordance with Article 24(4) REE and the consistent case law of the Disciplinary Board of Appeal (hereinafter "the DBA"), which followed decision D 1/92 (OJ EPO 1993, 357), decisions of the Examination Board may in principle only be reviewed for the purposes of establishing that they do not infringe the REE, the provisions relating to its application, or higher-ranking law. It is not the function of the DBA to reconsider the entire examination procedure on the merits. This is because the Examination Committees and the Examination Board have some latitude in their evaluation which is subject to only limited judicial review by the DBA. 

Only if the appellant can show that the contested decision is based on serious and obvious mistakes can the DBA take this into account. 

The alleged mistake must be so obvious that it can be established without reopening the entire marking procedure. 

This is for instance the case if an examiner is found to have based his evaluation on a technically or legally incorrect premise upon which the contested decision rests (D 2/14). 

Another example of an obvious mistake would be a question whose wording is ambiguous or incomprehensible (D 13/02). 

All other claims to the effect that the papers have been marked incorrectly are not the responsibility of the DBA. Value judgments are not, in principle, subject to judicial review (see e.g. D 1/92, supra, points 3 to 5 of the Reasons).

5. This established case law on the limitation of judicial review in relation to the European qualifying examination within the meaning of Article 1(1) REE (hereinafter: "the examination"), applies mutatis mutandis to the European qualifying pre-examination (hereinafter "the pre-examination"), just as the provisions of the REE apply mutatis mutandis to the pre-examination pursuant to Article 1(7) REE.

However, insofar as the award of points for the pre-examination paper is based on a pre-determined solution scheme (e.g. a multiple-choice test), the pre-examination leaves no room for discretionary marking. In the pre-examination, candidates are expected to respond to clearly defined statements in a multiple-choice mode, to which they can only answer "True" or "False" by ticking a box; they have no possibility to add any reasons or explanatory notes. Any such indications will not be taken into account (see Instructions for answering the pre-examination paper and marking scheme for the pre-examination 2021, No. 1.(d)). 

The formulation of the facts and the statements to be evaluated in a question are therefore of utmost importance in the pre-examination.  The questions to be answered and the statements to be evaluated in a multiple-choice test such as the pre-examination should therefore be formulated clearly and unambiguously (see also decisions D 5/16 and D 6/16). 

Therefore, when setting an examination question for the pre-examination, it must be ensured that only one answer can be given to the respective statement when taking an informed and objective view or interpretation of the wording of the facts and the respective statements in the question (D 15/16, point 2.3 of the Reasons). 

It is thus crucial to formulate the statements in such a way that clearly only one answer, i.e. either "True" or "False", is possible and "correct" under the given circumstances (see also decisions D 5/16 and D 6/16). 

In particular, terms and formulations are to be avoided which initially lead the candidates to an interpretation, which, as a result, partly leads them away from the answer and technical and/or legal assessment actually pursued by the authors of the paper, and which thus leads the candidates to considerations and results which do not do justice to the sense and purpose of the pre-examination (see e.g. D 5/16, point 32 of the Reasons; D 6/16, point 19 of the Reasons). 

Contradictory, misleading or ambiguously formulated facts and/or statements can have the consequence that candidates judge them differently from the solution scheme of the Examination Board without having the possibility to present a different opinion which is not wrong but justifiable. 

Unlike in the examination, such deficiencies in the pre-examination paper can therefore not already be recognised in the course of the correction of the papers and taken into account in the marking, but can only be corrected - if at all - in the course of an appeal (see also D 15/16, point 2.3 of the Reasons). 

Therefore, in a pre-examination, unclear and confusing facts or statements constitute a serious and obvious mistake (see also D 3/19, point 2.3 of the Reasons with reference to D 13/02, point 4 of the Reasons).

However, if a statement is logical and makes sense, so that, using common sense, it is clear what answer was expected, candidates cannot rely on exceptions to the rule or explore alternative interpretations with a view to showing that a different answer might also be conceivable in specific instances (see e.g. D 5/16, point 33 of the Reasons). 

It follows that in the case of a pre-examination, the review requested by the appellant does not concern the question of whether the evaluation of the assessment of the respective statement stricto sensu, i.e. the appellant's assessment of the statement concerned as "True" or "False", is correct.  It is rather a question of the correct interpretation or the general understanding of the statement concerned, including the facts underlying the pre-examination question and the conclusion to be drawn therefrom as to whether the statement concerned is clearly to be assessed as "True" or "False". 

The assessment itself, i.e. the awarding of points, is then usually carried out on the basis of the simple solution scheme of a multiple-choice test with solution statements that are either "True" or "False", i.e. on a completely objective basis (see also decision D 15/16, point 2.2 of the Reasons). […]

7. However, the Board of Appeal considers that statement 12.4, including the facts underlying the pre-examination question, cannot be answered clearly and unambiguously with "False" for the following reasons. […]

13. In view of the above, the expectation that candidates should be able to derive the clarity of the term "low temperature" in feature (vi) of claim I-8 from the term "high temperature" in feature (ii) of that claim is not considered justifiable by the Board of Appeal. […]

15. This further reasoning in the report also does not justify that the answer to statement 12.4 can be clearly and unambiguously stated as "False": […]

17. For the above reasons, the answer "False" cannot be considered to be the only correct answer that can be given to statement 12.4 when taking an informed and objective view or interpretation of the wording of the facts underlying the pre-examination question 12 and the statement 12.4. As a consequence, the question of whether or not statement 12.4 is correct cannot be answered with either "True" or "False" as required by a "multiple-choice" question in the pre-examination.

18. Since in a pre-examination unclear and confusing facts or statements constitute a serious and obvious mistake, the appeal is well founded and allowable. The further objection concerning statement 19.4 need not be dealt with in this decision. According to Article 24(4), second sentence, REE, the contested decision is to be set aside."

Examples of Pre-Exam appeals and neutralizations (not exhaustive)

• Examiners' Report - 2022, Pre-Exam 2022, complete Part 3 (Q.11 - Q.15) was immediately neutralized due to a translation error in the German version [005] of the description, second line (It should have read Poly-Y and not Poly-X).
  
  
• Examiners' Report - 2022, Pre-Exam 2022, Part 4: Q.20 was immediately neutralized as the question as presented in Wiseflow to the candidates missed the information in respect of which claim the (cloasest prior art) question had to be assessed.
  
  
• D 2/21, D 4/21, D 7/21 (EN),  D 6/21 (DE), D 5/21, D 3/21 (FR) - Pre-Exam 2021, statement  12.4 "Claim I-8 is unclear due to the use of the term low":
  "2. According to the report the question "Claim I-8 is unclear due to the use of the term low" had to be answered "FALSE". However, the Board holds that on the basis of this report the question "Claim I-8 is unclear due to the use of the term low" cannot clearly and unambiguously be answered "FALSE".";
  "3. [...] Case Law Book, II.A.3.1 and II.A.6.3.5, according to which "The clarity stipulation under Article 84 EPC 1973 concerned only the claims, and therefore ... required that they be clear in themselves, without there being any need for the skilled person to refer to the description." With regard to this case law there is a strong indication that the appellant's answer "TRUE" to question 12.4 may a priori not be evaluated as incorrect taking into account the examination questions as a whole, hence, a categorically "FALSE"-answer appears not to be justified."
  "4. The reasoning provided in the report does not justify the "FALSE"-answer either, since it is not comprehensible that "feature (vi) in claim I-8 is clearly distinguished from the term "high" in feature (ii) of claim I-8"."
  "5. Furthermore, as pointed out in the statement of grounds of appeal, the argumentation in the report "Although broad, the term is not necessarily unclear [GL 2019 F-IV 4.6.1]" explicitly concedes that the statement 12.4 cannot unambiguously be answered as FALSE or as TRUE. "Not necessarily unclear" does not allow an unambiguous clear or unambiguous unclear, which is required for a pre-examination statement (see D 3/19, point 2.3 of the reasons)."
  "6. The Board also agrees with the appellant that the statement in the report, referring to GL 2019 F-IV 4.6.1, "if a relative term is not the only feature to distinguish the subject- matter of a claim from the prior art", does not allow the conclusion that "the use of the relative term may not be objected to under Article 84 EPC". Rather,  the actual text of the GL 2019 F-IV 4.6.1 only states that ...[...] Hence, it is not tenable that the term "low" categorically "may not be objected to" as stated in the report."
   
• D 5/21 (FR) - Pre-Exam 2021, statement  19.4 "Conformément à l'article 123(2) CBE, il y a une base pour modifier comme suit la revendication IV.1 de la demande déposée initialement: [...]" / "Under Article 123(2) EPC, there is basis for amending claim IV.1 of the originally filed application as follows: [...]":
  "3.6 En ce qui concerne l'omission de la caractéristique 1, c'est à dire l'exigence que les charnières entre les trois sections parallèles de la couverture ne soient pas seulement parallèles entre eux, mais aussi parallèles à la charnière reliant la partie de couverture et la partie de réception, le rapport des Examinateurs ne donne aucune explication pourquoi cette omission serait conforme à l'article 123 (2) CBE. La Chambre considère qu'il est acceptable et justifié de soutenir que la caractéristique 1 se rapporte uniquement au deuxième mode de réalisation de l'invention et est liée de façon inextricable à la caractéristique extraite du paragraphe [05]. En effet, selon le paragraphe [05] les trois sections parallèles ne doivent pas seulement êtres plates et rigides, mais aussi parallèles à la charnière reliant la partie de couverture et la partie de réception afin de pouvoir former un prisme triangulaire qui peut servir de support incliné à la partie de réception. Par conséquent, la caractéristique 1 ne pourrait pas être omise sans enfreindre l'article 123 (2) CBE. L'affirmation 19.4 peut donc être considérée comme fausse."
  
  
• Examiner’s Report 2021: Q.10 was immediately neutralized due to an erroneous wording in the question introduced by a late amendment to the question. The issue was widely spotted and reported and no appeals were necessary.
   
• D 3/19, Pre-Exam 2019, statement 4.1 "If Didier files the application in Dutch, he must file a translation into one of the EPO's official languages within two months of filing the application.”: The Appeal Board agrees with the appellant that the term "must" in the first statement leads to ambiguity. It is not clear whether or not this term implies that the direct consequence of failure to observe the time limit is a loss of rights that can be remedied under Article 121 or 122 EPConly.

• Examiner’s Report - 2018, Pre-Exam 2018, statement 5.3: The Examiner’s Report as amended after interlocutory revision of Pre-Exam appeals indicates: “In view of arguments raised on appeal it appears that the statement 5.3 could be understood as referring to the concept of “entry” versus “early entry” into the European phase with regard to 26 February 2018. This would additionally require the lifting of the processing ban before the 31-month time limit has expired by filing a request for early entry (cf. GL E-IX, 2.8 and OJ EPO 2013, 156). Thus in view of this interpretation it was decided to neutralise the statement 5.3 and award marks for both answers.." 
  
  
• Examiner’s Report - 2018, Pre-Exam 2018, statements 12.2 and 12.4 were immediately neutralized. 
  
  
• Examiner’s Report - 2018, Pre-Exam 2018, statement 13.1: Initially, the Examiner’s Report indicated False (indicating that "the dependency of claim II.3 is not correct (Article 84 EPC). Claim II.3 should be dependent only on claim II.1"). The Examiner's Report was revised after interlocutory revision to neutralize statement 13.1, including revised comments, and indicating "In view of these arguments both possible answers are considered to be correct. For this reason it was exceptionally decided to award marks for both answers."
  
  
• D 1/17 (EN), D 2/17 (DE), Pre-Exam 2017, statement 18.4: "2. It is undisputed and also admitted in the Examiner's Report that there is a 'slight difference' of the German language version compared to the French and English version in the third sentence of paragraph [003] of document D2.", "4. When resorting to the German version the Candidate in an attempt to solve any possible ambiguity emanating from the English and French versions could consider that the vibrations of the melody could be independent and not generated via the loudspeaker. A Candidate resorting only to the English or French version was therefore provided with different information compared to Candidates also referring to the German version."
   
• D 1/16 (DE), D 2/16 (DE), D 4/16 (EN), statement 5.4: German version different from English version; definite article ("der Vertreter") vs indefinite article ("a representative"): "3. The definite article "der" before "Vertreter" refers in this context to a specific individual. Contrary to the note of the Examination Board in its letter dated 15 June 2016, the definite article in the context of statement 5.4 cannot be interpreted in a generalised sense as "representatives in general". With regard to Rule 22(3) IPREE, which applies analogously to the pre-examination, the words "der Vertreter" can only be seen as a reference to the representative Hassan indicated in the introductory case."
• D 6/16 and D 10/16 were not successful. D 6/16: "3. The appellant's submissions regarding the alleged mistakes would require an in-depth review of the content of the examination material. In order to establish whether the alleged mistakes actually occurred, the board in fact would have to review if not all, then at least a substantial part of the examination paper and the corresponding part of Examiner's Report. The board would have to perform a detailed, partly technical analysis of the facts presented, e.g. of the description and the drawings of the client's European patent application, of the statements as such or of the claims and the state of the art mentioned in the statements. Therefore, the subject of the review requested in the present appeal appears to be the 'correct' interpretation of the contested statements for the assessment in the examination paper, and equally the examination of the corresponding solutions in the Examiner's report as to their correctness. Thus, an examination of the lines of argument put forward by the appellant would result in an exercise which obviously could not be carried out without a value judgment. In the board's view, the assessment of claim features on the one hand and their comparison with technical details of the disclosed invention and the prior art documents on the other hand would be such a value judgment, which inevitably would have to be based on at least a significant portion of the facts presented in the examination paper."
  "4. However, in accordance with the consistent jurisprudence of the Disciplinary Board of Appeal, value judgments are not, in principle, subject to judicial review (see Case Law of the Boards of Appeal, 8th Edition 2016, Chapter V.2.6.3). The board considers that this settled jurisprudence of the Disciplinary Boards of Appeal is also applicable to appeals concerning the pre-examination. This is so even though the marking of the papers, the latter being understood as the according of the marks on the basis of the answers, is hardly ever in dispute, given the simple marking scheme of a multiple choice test where the answers are merely 'True' or 'False', so that their evaluation is straightforward and objective. However, the review requested in the present case is clearly not directed to the marking itself, but to the content of the pre-examination as presented to the candidates. As explained above, deciding on the issues raised by the appellant (the application as filed and interpretation of the terms therein, analysis of claims and their scope in relation to novelty, extended subject-matter and choice of closest prior art) would result in an exercise which appears to be well beyond the powers of the board, as this would in fact be tantamount to reviewing the substantive content of the examination material."
  
  
• D 2/15 (DE), Pre-Exam 2015, statements 16.3, 20.4 and 5.2 not successful
  
  
• Examiner's Report 2015, statement 20.2 was neutralized: "The formulation of 20.2 was however unnecessarily complex. Just by using the expression “D2 could be replaced by” instead of “D2 could replace” the solution would become “True”, since there is no teaching that solid wood could be replaced by the material of D1. For this reason, it is exceptionally decided to award marks for the answer “True” as well."
   
• Pre-Exam 2015, addendum to the Examiner's Report: the Examination Board allowed interlocutory revision in appeals based on 15.2 and 17.3. The EB informed the appellants at the end of March and this addendum was published on the Compendium pages,statements 15.2 and 17.3:
  "Since it can be argued (as it was done in some appeals) that the disclosure of D1 may not be sufficient for the candidate to conclude that cardboard generally comprises wood fibres, it was decided to award marks also for the answer “True” in statement 15.2 and for the answer “False” in statement 17.3 to the appellants (Art. 24(3) of the Regulation on the EQE for professional representatives). In addition, also candidates who did not file an appeal on this issue but in the light of these considerations would have passed, were upgraded and were informed accordingly."
  
• D 2/14 (DE), D 3/14 (EN), D 4/14 (FR), D 5/14 (DE), D 6/14 (DE), Pre-Exam 2014, statement 10.4: 
  "6. [...] Consequently, the examiner's evaluation of the examination papers rests upon a question that cannot, upon an objective reading, be derived from statement 10.4 of the pre-examination 2014."';"7. The appellant's understanding of statement 10.4 of question 10, on the basis of which she arrived at her answer, is justified from an objective point of view. [...] As a consequence, the answer to statement 10.4 was "false" and not "true" as indicated in the Examiner's Report for the pre-examination 2014. The discrepancy between the question underlying statement 10.4 and the expected answer according to the Examiner's Report was thus to the disadvantage of the appellant."; "8. As a result, the examiners of Examination Committee IV have based their evaluation of the pre-examination 2014 on an incorrect premise, since the Examiner's Report for that examination was based with respect to statement 10.4 on a different question from that inferable from said statement on an objective reading. Therefore, the contested decision is based on serious and obvious mistakes which can be established without reopening the entire marking procedure. The appeal is thus well founded and allowable. According to Article 24(4) REE, the contested decision has to be set aside and the appeal fee reimbursed."
  The DBA also commented on the need to get to a quick decision by interlocatory revision in clear and unequivocal cases:
  "9. Pursuant to Article 24(3) REE, the department whose decision was contested (in the present case the Examination Board) must rectify its decision if it considers the relevant requirements to be fulfilled. This also means that the Examination Board is obliged to assess carefully whether or not these requirements are met before deciding to grant or refuse rectification and, in the latter case, referring the matter to the board of appeal (D 38/05 of 17 January 2007, point 3 of the Reasons; D 4/06 of 29. November 2006, point 3 of the Reasons). In clear and unequivocal cases, rectification is a quick and simple way of cancelling flawed decisions and spares the parties the cost, in time and money, of appeal proceedings. Rectification is thus in the public interest and in particular in the interest of the appellant (D 38/05 of 17 January 2007, point 2 of the Reasons; D 4/06 of 29. November 2006, point 2 of the Reasons). Having regard to the obvious discrepancy between the question underlying statement 10.4 and the expected answer according to the Examiner's Report, rectification (Article 24(3) REE) was warranted in the present case, especially in view of the fact that candidates who apply to sit the European qualifying examination must first pass the pre-examination (Article 11(7), last sentence, REE)."

Decision D 2/21 of 3.2.2022 (pdf) has European Case Law Identifier: ECLI:EP:BA:2022:D000221.20220203. Photo "Red flags" by =Nahemoth= obtained via Flickr under CC BY 2.0 license (no changes made).
D 4/21 (in English) and D 6/21 (in German) have substantially the same content.

Posted 9/2/2022; Updated 10/2/22 in view of  D 4/21 and D 6/21; Updated 14/2/2022 in view of D 5/21 (12.4 & 19.4); Updated 19/2/2022 in view of D 7/21 (12.4); Updated 24/2/2022 in view of D 3/21 (12.4); Updated 25/4/2022 in view of Examiners' Report 2022 (Q.11-15, Q.20); updated 16/11/2022 in view of D 36/21 (how to file an appeal); updated 20/12/22 in view of Instructions to the candidates for EQE 2023 (amended compared to EQE 2022 version).