Tuesday, 30 September 2014

D 3/14 - Undo withdrawal of appeal?


This appeal lies from the decision of the Examination Board to award the appellant the grade "fail" in the pre-examination for the European qualifying examination 2014. The Examination Board remitted the appeal to the Disciplinary Board without rectifying its decision. In its statement setting out the grounds of appeal, the appellant stated that "if interlocutory revision is not successful, I request to withdraw my appeal and to have a full refund of the appeal fee." Following the remittance to the Board, the appellant nevertheless inquired whether it was possible to continue her appeal. The Board found the appeal to be pending, set aside the decision under appeal and granted a "pass" grade.

Reasons for the Decision

Pending appeal

1. The appeal lies from decisions of the Examination Board which adversely affect the appellant. A notice of appeal including the statement setting out the grounds of appeal was filed in writing with the Secretariat within one month of the date of notification of the contested decision (pursuant to Article 24(2) and (4) REE together with Articles 21(2) and 24(1) RDR and Rules 126(2), 131(2) and (4) and 134 EPC the time limit expired on 8 May 2014). The fee for appeal was also paid within said time limit. The appeal thus complies with Article 24(2) und (4) REE.

2. In its statement setting out the grounds of appeal, the appellant stated that "if interlocutory revision is not successful, I request to withdraw my appeal and to have a full refund of the appeal fee." With letter of 15 May 2014, the Examination Board remitted the appeal to the present board without rectifying its decision. With email dated 5 June 2014 the appellant nevertheless inquired whether it was possible to continue her appeal and to request accelerated proceedings. It emerges from this statement, which was received before a possible disposal of the appeal was ordered by the appeal board, that the appellant did not wish to be bound by her previous withdrawal. In the appeal board's judgement, this statement amounts to a retraction of the withdrawal. Such a retraction is considered allowable, according to general principles of procedural law in administrative procedures, if withdrawal is to the detriment of the party and if legal certainty is not at stake. In the present case, both conditions are fulfilled.

3. Moreover, the withdrawal was not effective, since it had been made on the condition that the appeal was not allowed within two months of notification of the contested decision. Indeed, according to general principles of procedural law in administrative procedures, the withdrawal of an appeal has to be explicit and unconditional, i.e. it should not depend on any decision to be made or discretion to be exercised by the competent authority. In the present case, the condition made by the appellant for the withdrawal was not fulfilled when the withdrawal was declared but depended on a decision of the Examination Board on whether or not to rectify its decision. Therefore, there was no valid and effective withdrawal.

4. For this reason, the appeal board found the appeal to be pending.


Request that the contested decision be set aside

5.-9. [...]

Request that the contested decision be corrected

10.-19. [...]

20. In view of the above, it is not necessary to hold the oral proceedings which were requested on an auxiliary basis.

ORDER
1. The decision under appeal is set aside.

[...]

This decision has European Case Law Identifier:  ECLI:EP:BA:2014:D000314.20140901. The whole decision can be found here. Photo (no changes made) by Thiago Ogoshi obtained via Flickr, CC-BY-2.0.



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