The background to the complaint

1. The complainant participated in a call for expressions of interest ('the Call') organised by the Commission's Directorate-General for Translation. The Call sought to establish a reserve list for the recruitment of translators having Maltese as their main language.

2. In November 2009, the Commission informed the complainant that, although he had obtained the pass mark in the written test, he did not qualify for the second stage of the selection procedure, namely, the oral examination.

3. The complainant requested a review of his application for the Call. He also asked for a copy of his "corrected examination paper" and for a copy of the notice of the Call.

4. In December 2009, the Commission provided him with a copy of his corrected written test. It also explained that "according to the Notice [of the Call] only the twenty best candidates who obtain a pass mark in the written tests will be admitted to the next stage of the selection." Finally, it pointed out that, although the complainant had obtained the pass mark in the written test, he was not among the 20 best candidates who were invited to the next stage of the selection procedure.

5. In reply to the Commission's above answer, the complainant asked to be provided with (i) the source examination paper and (ii) the mark of the 20th best candidate or the mark he had to obtain in order to be among the 20 best candidates admitted to the oral test.

6. In December 2009, the Commission provided the complainant with (i) a copy of the notice of competition and (ii) a copy of the source examination paper. The Commission pointed out that it could not provide the complainant with the mark of the 20th candidate selected for the oral examination. Finally, it informed the complainant about his final ranking on the written tests result list.

7. The complainant was not satisfied with the Commission's above position, and therefore turned to the Ombudsman.

The subject matter of the inquiry

8. The complainant alleged that the Commission failed properly to handle his request for review of his application for the Call.

9. When the Ombudsman opened the inquiry, he asked the Commission to clarify the total marks available and the pass mark for the written tests in the above competition, given that, according to the notice of competition, the written tests were marked on a zero to 40 scale (with a pass mark of 20), while the complainant's written test was marked on a zero to 20 scale.

The inquiry

10. On 1 February 2010, the Ombudsman opened an inquiry and asked the Commission to provide an opinion by 30 April 2010. On 3 May 2010, the Commission sent its opinion, which was forwarded to the complainant with an invitation to submit observations before 30 June 2010. The complainant did not submit observations.

11. The Ombudsman asked the Commission for further information regarding certain aspects of the case. The Commission replied to the Ombudsman's further inquiries on 16 December 2010.

12. The Commission's reply to the Ombudsman's request for further information was forwarded to the complainant. On 4 January 2011, he informed the Ombudsman's services that he did not wish to submit observations.

The Ombudsman's analysis and conclusions

A. Allegation of failure properly to handle the complainant's request for review of his application

Arguments presented to the Ombudsman

13. In support of his allegation, the complainant argued that the Commission (i) wrongly assessed his written test; (ii) did not explain why it could not provide him with the mark of the 20th candidate selected for the oral examination, and (iii) failed to provide him with a substantive reply to his request for review of his application. He pointed out that the evaluation sheet of his written test would have sufficed as regards point (iii).

14. In its opinion, the Commission pointed out that all written tests, including the complainant's, were assessed and reviewed by highly qualified professionals. It also explained that the complainant's written test was first assessed by two assessors. Given that the marks awarded by the two assessors were different, a third assessor reviewed the complainant's written test. "The final mark [the third assessor] gave was subsequently communicated to the complainant", along with a copy of his corrected written test.

15. The Commission also acknowledged that the information it first communicated to the complainant concerning his final ranking on the written tests result list was erroneous. This error occurred because of the number of multiple rankings, that is to say, the candidates who obtained the same marks were ranked "ex aequo". The Commission clarified the complainant's final ranking on the written tests result list. As already pointed out to the complainant, only the 20 best candidates were admitted to the oral examination.

16. As regards the complainant's argument that the Commission failed to provide him with a substantive reply to his request for review, which could be the evaluation sheet, the Commission explained that it had instead provided the complainant with a copy of his corrected and evaluated paper. This corrected paper did not contain the marks awarded to the complainant. In the Commission's view, this was in line with its previous reasoning submitted in the Ombudsman own-initiative inquiry 1004/97/(PD)GG[1], namely, that there is a fundamental difference between examinations and competitions. Participants in examinations are judged against an objective standard, whereas candidates in competitions are judged against each other in a way that only the Selection Board can assess. Thus, "giving a candidate access to his/her marked test paper would in any case be meaningless since the appraisal only expresses a position relative to other candidates." As regards the present case, the Commission disclosed the comments/corrections (but not the marks) in order to allow the candidate better to prepare for future competitions. The Commission finally stated that it could not disclose to the complainant the evaluation sheet of his written test because "this would interfere with the secrecy imposed by Article 6 of Annex III of the Staff Regulations. In any event, such disclosure would not benefit to the complainant since the assessment essentially expresses a weighting relative to the other candidates".

17. The Commission clarified that the written tests were marked on a scale of zero to 20 (with a pass mark of 10), although the Call provided that they were to be marked on a scale of zero to 40 (with a pass mark of 20). Nevertheless, the pass mark remained 50% of the total, and the same marking was applied to all candidates. Therefore, this specific detail did not affect the final result.

18. The Commission further stated that, after the written tests, it established an initial list of 20 candidates (as mentioned in the notice of competition) to be invited to the oral examination. However, given the "outstanding performances" in the written tests of the 20 best ranked candidates, the Commission decided to establish a second list of candidates who were also invited to the oral examination. The candidates on the second list were informed that, if they were successful in the oral tests, they would be placed on another reserve list. The latter would be used after the first reserve list was exhausted.

19. Finally, the Commission stated that it did not, for confidentiality reasons, provide the complainant with the mark of the 20th candidate admitted to the oral examination. The confidentiality of the proceedings of the Selection Board is provided for in Article 6 of Annex III of the Staff Regulations. Maintaining this confidentiality means, in the Commission's view, "not divulging the standpoints adopted by individual members of Selection Board or revealing any information connected with personal or comparative assessment of candidates." However, when replying to the Ombudsman's request that it either inform the complainant of the minimum mark for candidates to be allowed to sit the oral tests, or explain why it could not do so, the Commission changed its mind. It stated that it would reassess whether "it would still be" contrary to the principle of secrecy to disclose the mark of the 20th candidate admitted to the oral examination. The Commission promised that it would inform the complainant about the outcome of its re-assessment and the reasons justifying its decision.

The Ombudsman's assessment

20. The Commission explained that the complainant's written test was first assessed by two assessors, then reviewed by a third. The final mark given by the latter was then communicated to the complainant. The Ombudsman finds this explanation reasonable and in accordance with the normal procedure governing EU competitions. Moreover, the complainant did not submit evidence to show that the evaluation of his written test was tainted by a manifest error of assessment. Thus, the complainant's argument that the Commission wrongly assessed his written test cannot be sustained.

21. The Ombudsman also notes that the Commission provided the complainant with a copy of his written test containing the assessors' corrections and comments. The Ombudsman agrees with the Commission that this offered the complainant enough information about the errors and weaknesses identified in his written test.

22. The Ombudsman is however puzzled by the Commission's refusal to grant access to the evaluation sheet containing the Selection Board's final assessment of the complainant's written test. In this respect, he recalls that EPSO, following the Ombudsman's own-initiative inquiry on the issue of transparency in EU recruitment[2], agreed that selection boards should use a model evaluation sheet for written tests containing (a) the evaluation criteria set out in the published notices of competition (including the various elements eventually evaluated by the board for each criterion) and the level of performance attained (ranging from excellent to insufficient) and (b) in addition to the global mark, the partial marks awarded by the board for each criterion specified in the notice of competition. Candidates who failed the written tests or who were not invited to an interview could obtain such evaluation sheets upon request. The Ombudsman does not see why EPSO considers that the secrecy of a selection board's deliberations is not jeopardised if the evaluation sheets are disclosed, but that the Commission does.

23. Furthermore, the Ombudsman recalls that the corrections made by the assessor(s), as shown on the corrected examination paper disclosed to the complainant, do not constitute the final assessment. In accordance with the provisions of the Staff Regulations[3], the final assessment can only be carried out by the Selection Board. Thus, if the Commission had granted access to the Selection Board's final evaluation sheet, the candidates would have been able to see the final evaluation of their tests.

24. As regards the Commission's argument that an evaluation sheet would be less useful for candidates than their corrected examination paper, this is a question that should rather be answered by the candidates themselves. Since the complainant did not wish to submit observations, the Ombudsman understands that he is satisfied with the corrected examination paper alone and does not need an evaluation sheet. The Ombudsman will thus not pursue this aspect of the case further. However, the Ombudsman will make a further remark in this respect below.

25. As regards the Commission's refusal to provide the complainant with the mark of the 20th candidate admitted to the oral examination, the Ombudsman understands that the complainant in fact asked to know the cut-off mark for sitting the oral tests in the above competition, that is to say, the mark of the least meritorious candidate, but not the identity of that candidate. The Ombudsman does not see why revealing such information would contravene the confidentiality of the Selection Board's proceedings. He recalls, in this respect, that EPSO discloses such information in the competitions it organises.

26. Nevertheless, he also notes that, in its reply to his further inquiries dated 16 December 2010, the Commission stated that it would reassess whether "it would still be" contrary to the principle of secrecy to disclose the mark of the 20th candidate admitted to the oral examination of the competition. It also stated that it would inform the complainant about the outcome of its re-assessment and the reasons justifying its decision. In light of this declaration, the Ombudsman's services contacted the complainant on 17 February 2011, who informed them that the Commission had not disclosed the cut-off mark for sitting the oral tests in the competition or properly explained why it could not do so. He also stated he did not intend to pursue his complaint any further.

27. In light of the above, the Ombudsman considers that, by failing to disclose the mark of the 20th candidate admitted to the oral examination of the competition or to explain properly why it could not do so, despite its promise in this respect, the Commission committed an instance of maladministration. Given the complainant's intention not to pursue his complaint any further, the Ombudsman will not make a friendly solution or a draft recommendation, but will close the case with a critical remark.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

By failing to disclose the mark of the 20th candidate admitted to the oral examination of the competition, or properly to explain why it could not do so, despite its promise in this respect, the Commission committed an instance of maladministration.

The complainant and the Commission will be informed of this decision.

Further remark

The Ombudsman recalls that, as shown on the corrected examination paper disclosed to the complainant, the corrections made by the assessor(s) in competitions do not constitute the final assessment. In accordance with the provisions of the Staff Regulations, the final assessment can only be carried out by the Selection Board. Thus, if, in the future, the Commission grants access to the Selection Board's final evaluation sheet, the candidates will be able to see the final evaluation of their tests.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 3 March 2011

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[1] Available on the Ombudsman's website.

[2] Decision of the European Ombudsman closing his own-initiative inquiry OI/5/2005/PB, available on the Ombudsman's website.

[3] Article 5 of Annex III of the Staff Regulations reads as follows: "After examining these files, the Selection Board shall draw up a list of candidates, who meet the requirements set out in the notice of competition.

Where the competition is on the basis of tests, all candidates on the list shall be admitted to the tests.

Where the competition is on the basis of qualifications, the Selection Board shall, after determining how

candidates' qualifications are to be assessed, consider the qualifications of the candidates appearing on the list provided for in the first paragraph.

Where the competition is on the basis of both tests and qualifications, the Selection Board shall state which of the candidates on the list shall be admitted to the tests.

On completion of its proceedings, the Selection Board shall draw up the list of suitable candidates provided for in Article 30 of the Staff Regulations; the list shall wherever possible contain at least twice as many names as the number of posts to be filled.

The Selection Board shall forward this list to the appointing authority, together with a reasoned report by the Selection Board including any comments its members may wish to make."