Strasbourg, 9 August 2006

Dear Mr X.,

On 5 October 2003, you made a complaint to the European Ombudsman concerning Open Competition COM/LA/2/02.

On 19 November 2003, I forwarded the complaint to the Director of the European Personnel Selection Office ("EPSO"). The opinion was submitted by the European Commission on 5 March 2004. I forwarded it to you with an invitation to make observations. On 4 June 2004, I informed you that your complaint would henceforth be dealt with by my legal officer Mr Peter Bonnor. On 8 June 2004, you replied to my letter of 4 June 2004, and made observations on the Commission's opinion.

On 30 September 2004, I decided to conduct further inquiries, and informed you accordingly. On 22 October 2004, the Commission and EPSO submitted their joint reply. I forwarded the reply to you with an invitation to make observations. On 3 November 2004, you submitted your observations.

On 24 February 2005, I made a proposal for a friendly solution regarding two aspects of your case, and informed you accordingly. On 12 April 2005, the Commission and EPSO submitted their joint reply to my proposal. I forwarded the reply to you with an invitation to make observations. You submitted your observations on 3 May 2005.

In these observations, it appeared that you made a new allegation. On 18 November 2005 I therefore requested an opinion on that allegation. The opinion was submitted by EPSO on 3 February 2006. I forwarded it to you with an invitation to make observations. You sent your observations on 20 March 2006.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant, an Italian citizen, participated in Open Competition COM/LA/2/02 organised to establish a reserve list of English-language assistant translators (LA 8). He obtained the mark 0 (pass mark 10) in test (b) of the pre-selection tests and was therefore excluded from the competition. Test (b) consisted of a translation into English of a text in Italian.

On 28 July 2003 the complainant contacted the European Commission and EPSO, asking for the following:

(a) the examination paper with annotations;

(b) the evaluation criteria;

(c) copies of the other candidates' examination papers;

(d) information on his ranking in the competition; and

(e) a model translation.

The complainant referred to Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents(1) and Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data(2).

On 17 September 2003, EPSO sent the complainant an evaluation sheet for test (b) as well as the complainant's examination paper (not containing annotations). EPSO stated that the examination paper had been reviewed and confirmed the mark given to the complainant.

On 5 October 2003, the complainant lodged a complaint with the Ombudsman. The complainant alleged that he had not been given all the information he had asked for on 28 July 2003 in order to understand the mark he had been awarded in test (b).

The complaint was sent to EPSO for an opinion. The opinion that the Ombudsman received was however written by the Commission.

THE INQUIRY

The Commission's opinion of 5 March 2004

In its opinion of 5 March 2004, the Commission stated, in summary, that the assessment of the complainant's examination paper had first been carried out by independent evaluators on the basis of evaluation criteria established by the Selection Board. These evaluators formulated their opinions on separate evaluation sheets which were submitted to the Board for the latter's own assessment. These evaluation sheets were not disclosed because they did not contain the assessment of the Board itself.

The final evaluation sheet contained seven boxes, each of which referred to a different type of error that the Selection Board could tick: sense, omission, grammar, lexis, spelling, punctuation and clarity. In the Commission's view, the information provided on this evaluation sheet sufficed to allow the complainant to know why he had been given a mark that was below the minimum mark required, and to enable him to take measures to try to avoid the errors in future competitions.

The complainant's observations

On 8 June 2004, the complainant stated that he failed to see how the evaluation sheet and a copy of his examination paper without annotations could suffice to allow him to know why he had been given a mark that was below the minimum mark required, and to enable him to take measures with a view to avoiding making errors in future competitions.

Further inquiries

After careful consideration of the Commission's opinion of 5 March 2004 and the complainant's observations, it appeared that further inquiries were necessary. The Ombudsman wrote a letter to the Commission in which he pointed out the request that the complainant had made in his letter of 28 July 2003 to EPSO (cf. above) and noted that the Commission's opinion had not addressed the separate items in this request. The Ombudsman therefore asked the Commission to address, in a second opinion, the information request made by the complainant in his letter of 28 July 2003.

The second opinion of 22 October 2004

The second opinion, submitted jointly by the Commission and EPSO on 22 October 2004, contained the following points:

(a) The examination paper with annotations

The Commission and EPSO explained, in summary, that examination papers are sent to independent evaluators who note down their assessment on separate evaluation sheets. For this reason, there is no examination paper containing annotations.

The Commission and EPSO noted that the Ombudsman had in previous decisions stated that he was not aware of any rule that would oblige the Selection Board to write comments directly on the examination paper.

(b) Evaluation criteria

The Commission and EPSO stated that the Selection Board had established, as evaluation criteria, a list of errors to be penalised. These were the ones on the evaluation sheet of which the complainant had obtained a copy (cf. above).

The Commission and EPSO furthermore stated that, according to established case-law of the Community Court(3), the specific duty to state reasons for decisions to exclude applicants from recruitment competitions is satisfied when the final mark is communicated to the applicant concerned.

The Commission and EPSO furthermore stated that, according to established case-law(4), the work of the independent evaluators as well as the documents distributed to them are covered by the secrecy pertaining to the work of the Selection Board.

(c) Copies of the other candidates' examination papers

The Commission and EPSO considered that access could not be given to the other candidates' examination papers "without infringing the data protection rights of those candidates".

(d) Information on his ranking in the competition

The Commission and EPSO considered that informing the candidate about his ranking in the competition would infringe the other candidates' data protection rights. The Commission and EPSO had nevertheless concluded that they could inform the complainant that out of the 526 candidates who passed all the pre-selection tests, 106 candidates had obtained the minimum required points.

(e) A model translation

The Commission and EPSO stated that, in addition to providing the independent evaluators with evaluation criteria, the Selection Board had also given these evaluators other material to guide them in their work. However, this material was, in their view, covered by the secrecy pertaining to the work of the Board.

In addition to its specific remarks on points (a) to (e) above, the Commission and EPSO added that, with regard to the complainant's reference to Regulation 1049/2001 and Directive 95/46, it is established case-law(5) that the general principle of transparency cannot be used to negate the relevant provisions applicable in the field of recruitment competitions, the relevant provision in this case being the one establishing the secret nature of the work of the Selection Boards (Article 6 Annex III of the Staff Regulations).

The complainant's observations on the second opinion

The second opinion of 22 October 2004 was forwarded to the complainant who maintained his allegations and claims.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinions and observations, the Ombudsman was not satisfied that the Commission and EPSO had responded adequately to all parts of the complainant's request for information and documents.

The proposal for a friendly solution

Article 3(5) of the Statute of the Ombudsman(6) directs the Ombudsman to seek, as far as possible, a friendly solution with the institution concerned to eliminate the instance of maladministration and satisfy the complainant. The Ombudsman’s provisional conclusion was that the failure (i) to give the complainant information on his ranking in the competition, and (ii) a model translation, could be an instance of maladministration. The Ombudsman therefore made the following proposal for a friendly solution:

(1) EPSO could reconsider its refusal to provide the complainant with information on his ranking in the competition.

(2) EPSO could reconsider the complainant's request for access to a copy of the model translation.

This proposal was based on the following considerations:

1. The complainant, an Italian citizen, participated in Open Competition COM/LA/2/02 organised to establish a reserve list of English-language assistant translators (LA 8). The complainant failed the competition, following which he asked EPSO for information and documents. Part of the requested information and documents were (i) information on his ranking in the competition, and (ii) a model translation.

2. As regards the complainant's request for information on his ranking in the competition, the Commission and EPSO stated in the second opinion that access could not be given to the other candidates' examination papers "without infringing the data protection rights of those candidates".

3. It appeared that the complainant only wanted to know his own ranking in the competition and not that of the other candidates. The Ombudsman therefore failed to see how the data protection rights of the other candidates could be a valid reason for refusing to give him the information that he requested. The Ombudsman's preliminary finding was, therefore, that the failure to give the complainant the information that he requested could be an instance of maladministration. It had to be noted, however, that, in the absence of more specific information, the Ombudsman could not exclude the possibility that a ranking of the candidates did not yet exist and that preparing it could entail considerable efforts on the part of the Commission and EPSO.

4. As regards the complainant's request for a model translation, the Commission and EPSO stated in their second opinion that, in addition to providing the independent evaluators with evaluation criteria, the Selection Board had also given these evaluators other material to guide them in their work. However, in their view, this material was covered by the secrecy pertaining to the work of the Board.

5. The Commission and EPSO added that it was established case-law that the general principle of transparency could not be used to negate the provision establishing the secret nature of the work of the Selection Boards (Article 6 of Annex III of the Staff Regulations). In this context, the Commission and EPSO referred to the decision of the Court of First Instance in the Angioli case(7). That case concerned a temporary agent who had failed a recruitment competition and who had asked for information so as to enable her to understand the Board's decision. Referring to Article 255 of the EC Treaty, concerning public access to Parliament, Council and Commission documents, the Court stated that candidates in recruitment competitions cannot use the general principle of transparency to place in doubt the applicability of Article 6 of Annex III of the Staff Regulations ("...les candidats à un concours ne sauraient se prevaloir du principe général de transparence pour mettre en cause l'applicabilité de l'article 6 de l'annexe III du statut").

6. The Ombudsman noted that the statement of the Court of First Instance referred to by the Commission and EPSO pointed out that the secrecy provision contained in Article 6 of Annex III of the Staff Regulations was not rendered inapplicable by Article 255 of the EC Treaty. The present inquiry did not, however, concern the question of whether Article 6 was or was not applicable, but the scope of its application.

7. Article 6 of Annex III of the Staff Regulations provides that the "proceedings of the Selection Board shall be secret" (emphasis added). The aim of this provision is to secure the independence of the Board by protecting it from external interference and pressure(8). As pointed out by the Ombudsman in previous inquiries(9), Article 6 does not imply that all documents pertaining to the work of the Board must be kept secret. This finding had, furthermore, been confirmed in recent decisions of the Court of First Instance(10). In the present case, the Ombudsman considered that the model translation could not be regarded as a document reflecting the deliberations taking place with regard to individual applications during the proceedings of the Board. Instead, it was a document with neutral and objective information assisting the Board in its assessment. It was therefore difficult to see how the release of such a document could put the independence of the Board at risk. The Ombudsman's preliminary conclusion was therefore that it could be an instance of maladministration to refuse to give the complainant a copy of the model translation.

The Commission's and EPSO's reply of 12 April 2005

In their joint reply of 12 April 2005 to the Ombudsman's proposal for a friendly solution, the Commission and EPSO stated that no information on the complainant's ranking in the competition existed. They stated that such information in respect of those candidates who had failed the test was not useful to the work of the Selection Board.

The Commission and EPSO furthermore stated that the Selection Board had not made a model translation for this competition. The Board had merely given various instructions to the independent evaluators in order to guide them in their work. The Commission and EPSO pointed out that the use of model translations was generally not accepted as a good working method by professionals working in the field of translation.

The complainant's observations

In his observations on the opinion of 12 April 2005, the complainant stated, in summary, that he did not consider that he had received sufficient information to understand his marks. He referred to "an examination paper without annotations and an evaluation sheet full of crosses". He indicated that this did not enable him to sufficiently understand his mark and errors.

Further inquiries

In light of the complainant's observations on the Commission's and EPSO's joint reply to the Ombudsman's proposal for a friendly solution, the Ombudsman decided to request an opinion on the additional allegation that the information contained on the evaluation sheet did not enable him to sufficiently understand his mark and errors.

The opinion of 3 February 2006

The opinion on the additional allegation was submitted by EPSO only, which had in the meantime assumed full responsibility for dealing with the complaint in the context of the Ombudsman's inquiry.

In its opinion, EPSO explained in some detail how the marking had been carried out. It emphasised that the Selection Board does not indicate, on the evaluation sheet, the number of errors for each category of error, and that only the final global mark decided by the Selection Board was valid.

The observations

In his observations on EPSO's opinion of 3 February 2006, the complainant stated that he had no further comments to make. He informed the Ombudsman that, as far as he was concerned, the inquiry could be closed.

THE DECISION

1 Introductory remarks

1.1 The complainant, an Italian citizen, participated in Open Competition COM/LA/2/02 organised to establish a reserve list of English-language assistant translators (LA 8). He obtained the mark 0 (pass mark 10) in test (b) of the pre-selection tests and was therefore excluded from the competition. Test (b) consisted of a translation into English of a text in Italian. He subsequently asked the European Personnel Selection Office ("EPSO") and the European Commission for access to documents and information. Not having received all the documents and information requested, the complainant lodged a complaint with the Ombudsman. The complainant alleged that he had not been given all the information that he had asked for on 28 July 2003 in order to understand the mark he had been given in test (b).

The complaint was made against EPSO and was therefore sent to EPSO for an opinion. However, the opinion was submitted by the Commission, that is, the Community institution initially responsible for the competition here concerned. In light of this fact, the Ombudsman addressed his proposal for a friendly solution to the Commission. After receiving the Commission's reply of 12 April 2005 to the Ombudsman's proposal for a friendly solution and the complainant's observations of 3 May 2005, the Ombudsman decided to conduct further inquiries. At that time, the Commission decided to transfer the handling of all complaints concerning open competitions to EPSO. Accordingly, it was EPSO which replied to the Ombudsman's further inquiries. Under these circumstances, the present decision is addressed to EPSO alone.

2 The requests for documents and information

2.1 By letter dated 28 July 2003, the complainant contacted EPSO, asking for the following:

(a) the examination paper with annotations;

(b) the evaluation criteria;

(c) copies of the other candidates' examination papers;

(d) information on his ranking in the competition; and

(e) a model translation.

2.2 In its first opinion of 5 March 2004, the Commission stated, in summary, that the assessment of the complainant's examination paper had first been carried out by independent evaluators on the basis of evaluation criteria established by the Selection Board. These evaluators formulated their opinions on separate evaluation sheets, which were submitted to the Board for its own assessment. These evaluation sheets were not disclosed because they did not contain the assessment of the Board itself. The final evaluation sheet contained seven boxes, each of which referred to a type of error that the Board could tick: sense, omission, grammar, lexis, spelling, punctuation and clarity. In the Commission's view, the information provided on this evaluation sheet sufficed to allow the complainant to know why he had been given a mark that was below the minimum mark required, and to enable him to take measures to try to avoid the errors in future competitions.

2.3 In response to the Ombudsman's request for a supplementary opinion, the Commission submitted an opinion on 22 October 2004, jointly with EPSO, in which it addressed the specific request for documents and information outlined in the complainant's letter of 28 July 2003.

2.4 As regards the request for a copy of the examination paper with annotations, the Commission and EPSO explained, in summary, that examination papers are sent to independent evaluators who note down their assessment on separate evaluation sheets. For this reason, there is no examination paper containing annotations. It also noted that the Ombudsman had in a previous decision stated that he was not aware of any rule that would oblige the Selection Board to write comments directly on the examination paper.

2.5 On 18 October 1999, the Ombudsman sent a special report to the European Parliament following his own-initiative inquiry into the secrecy which formed part of the Commission's recruitment procedure(11). The special report included a formal recommendation that, in future recruitment competitions, the Commission should give candidates access to their own marked examination papers on request. On 7 December 1999, the President of the Commission wrote to the Ombudsman to inform him that:

"The Commission welcomes the recommendations you made in this report and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination papers, upon request, from 1 July 2000 onwards."(12)

2.6 It is the Ombudsman's understanding that the Commission's commitment referred to in point 2.5 has been adopted by EPSO as part of its own practice.

2.7 In the present case, EPSO gave the complainant an unmarked copy of his written examination paper and a copy of the Selection Board's final evaluation sheet. As held both by the Court of First Instance and by the Ombudsman(13), the Board is under no obligation to write its comments relating to the assessment of a candidate on the candidate's test paper itself. In light of his reasoning in his recommendation in Decision on complaint 1004/97/PD and his special report of 18 October 1999, following which the Commission committed to giving candidates access to their own marked test scripts upon request, the Ombudsman has found that a rule allowing a candidate to obtain a copy of his or her own test paper and, for written tests, of the Board's evaluation sheet, constitutes a satisfactory measure for implementing a draft recommendation, under which the complainant should be granted access to his or her own marked test paper(14). Relatedly, the Ombudsman has noted that, in principle, giving access to an evaluation sheet can be an adequate indication of the reasons of the mark of a candidate(15). In view of the foregoing, the Ombudsman cannot find that EPSO has failed to respect the abovementioned commitment. There has accordingly been no maladministration with regard to this aspect of the case.

2.8 As regards access to the evaluation criteria, the Commission and EPSO stated in the second opinion of 22 October 2004 that the Selection Board had established, as evaluation criteria, a list of errors to be penalised. These were the ones set out on the evaluation sheet of which the complainant had obtained a copy (cf. above). In his observations, the complainant did not make any specific comments on the propriety or adequacy of this part of the Commission's and EPSO's opinion.

2.9 On the basis of the above, the Ombudsman considers that, in the context of the present inquiry, EPSO took steps to settle this part of the complaint concerning access to the evaluation criteria. The Ombudsman also notes that the general issue of candidates' access to evaluation criteria is currently being dealt with in the framework of his own-initiative inquiry OI/5/2005/PB. Under these circumstances, no further inquiry into, or consideration of, this aspect of the case is justified.

2.10 As regards the request for copies of the other candidates' examination papers, the Commission and EPSO stated, in its opinion of 22 October 2004, that access could not be given to the other candidates' examination papers "without infringing the data protection rights of those candidates". In his observations of 3 November 2004, the complainant did not make any specific comments on the propriety or adequacy of this part of the Commission's and EPSO's opinion.

2.11 The complainant had made his requests with reference to Regulation 1049/2001, Article 4(1)(b) of which provides that "[t]he institutions shall refuse access to a document where disclosure would undermine the protection of: privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data". In his observations of 3 November 2004, the complainant did not make any specific comments on the propriety or adequacy of the statement made by the Commission and EPSO that access could not be given to the other candidates' examination papers "without infringing the data protection rights of those candidates", which appears to refer to the possibility of full access to the documents requested. In this regard, the Ombudsman considers that it was reasonable for the Commission and EPSO to conclude that it would infringe the other candidates' data protection rights if they were to give the complainant full access to these candidates' examination papers. Moreover, the complainant has not made specific comments on the possibility of partial access. In light of the above, it appears that there has been no maladministration with regard to this aspect of the complaint.

2.12 As regards the complainant's request for information on his ranking in the competition, the Commission and EPSO stated in the second opinion of 22 October 2004 that they considered that informing the candidate about his ranking in the competition would infringe the other candidates' data protection rights.

2.13 For the reasons summarised above under "The Ombudsman's efforts to achieve a friendly solution", the Ombudsman did not consider the Commission's and EPSO's position to be convincing. The Ombudsman therefore made a proposal for a friendly solution.

2.14 In their opinion of 12 April 2005, the Commission and EPSO stated that no information on the complainant's ranking in the competition existed. They stated that such information in respect of candidates who had failed the test was not useful to the work of the Selection Board.

2.15 In his proposal for a friendly solution, the Ombudsman noted that, in the absence of more specific information, he could not exclude the possibility that a ranking of the candidates did not yet exist and that preparing it could entail considerable efforts on the part of the Commission and EPSO. It appears from the Commission's reply that such a ranking does not, in fact, exist in respect of the candidates who failed the relevant competition. The Commission and EPSO have furthermore explained that such ranking would not be useful for the work of the Selection Board.

2.16 Principles of good administration, embodied in Articles 21(1) and 22 of the European Code of Good Administrative Behaviour(16) require that the Administration provide citizens with the information they have requested, unless it invokes valid and adequate grounds for not doing so. Simple reference to the usefulness of the information to the Administration cannot in itself constitute a valid and adequate reason for not providing the information requested.

2.17 In the present case, the Commission and EPSO merely noted, in the opinion of 12 April 2005, that a ranking of the candidates did not exist and that such a ranking would not be useful for the work of the Selection Board. Hence, the Ombudsman considers that no valid or adequate reasons were given for not providing the complainant with information on his ranking in the competition. There has accordingly been maladministration regarding this aspect of the case. In view of the complainant's express statement that, as far as he is concerned, the Ombudsman can close the present case, the Ombudsman does not consider it appropriate to make a draft recommendation regarding this aspect of the case. The Ombudsman will thus make a relevant critical remark.

2.18 As regards the complainant's request for a model translation, the Commission and EPSO stated, in the second opinion of 22 October 2004, that, in addition to providing the independent evaluators with evaluation criteria, the Selection Board had also given these evaluators other material to guide them in their work. However, in its view, this material was covered by the secrecy pertaining to the work of the Board.

2.19 For the reasons summarised above under "The Ombudsman's efforts to achieve a friendly solution", the Ombudsman did not consider the Commission's and EPSO's position to be convincing. The Ombudsman therefore made a proposal for a friendly solution.

2.20 In their reply of 12 April 2005, the Commission and EPSO stated that the Selection Board had not made a model translation for this competition. The Board had merely given various instructions to the independent evaluators in order to guide them in their work. The Commission and EPSO pointed out that the use of model translations was generally not accepted as a good working method by professionals working in the field of translation.

2.21 The Ombudsman notes that the complainant had applied for access to a specific document, namely, a model translation. In their reply to the Ombudsman's proposal for a friendly solution of 12 April 2005, the Commission and EPSO clarified that no model translation existed.

2.22 The Ombudsman points out that the rules on public access to documents only apply to documents that already exist(17). They do not contain a right to request that documents should be drawn up. Moreover, the Ombudsman notes that, in view of the wide margin of discretion that the Selection Board enjoys when it evaluates the performance of candidates, the Board is, in principle, under no obligation, as a matter of law(18), or under principles of good administration, to establish model translations. In light of the foregoing, there has been no maladministration regarding this aspect of the case.

3 The allegation of inadequate information on the evaluation sheet

3.1 In his observations on the Commission's and EPSO's reply of 12 April 2005 to the Ombudsman's proposal for a friendly solution, the complainant appeared to allege that the information contained on the evaluation sheet was inadequate and did not enable him to sufficiently understand his marks and errors.

3.2 The Ombudsman decided to request an opinion on the additional allegation that the information contained on the evaluation sheet did not enable the complainant to sufficiently understand his mark and errors.

3.3 The opinion was submitted by EPSO on 3 February 2006. EPSO explained in some detail how the marking had been carried out. It emphasised that the Selection Board does not indicate on the evaluation sheet the number of errors for each category of error and that only the final global mark decided by the Board is valid.

3.4 In his observations on EPSO's opinion of 3 February 2006, the complainant stated that he had no further comments to make. He informed the Ombudsman that, as far as he was concerned, the inquiry could be closed.

3.5 The Ombudsman notes that this part of the complaint essentially concerns the issue of candidates' access to information indicating the seriousness and the extent of the separate types of error identified by the Selection Board in competitions for translators. This issue has also been addressed in the Ombudsman's inquiry into complaint 674/2004/(MF)PB. In his draft recommendation in that case, the Ombudsman concluded that, where the evaluation sheet prepared by the Board concerns a translation test (as in the present case), it must provide information not only on the types, but also on the seriousness and the extent, of the errors or weaknesses identified by the Board in the candidates' paper, without, however, imposing an unreasonable administrative burden on Boards. Relatedly, the Ombudsman pointed out that there is no obligation, deriving from principles of good administration, that would require the Board to provide candidates with a detailed opinion on the specific errors or weaknesses that it has identified. EPSO responded to the draft recommendation by providing more information on the types of errors committed by the complainant in the test. However, it stated that it is not the Board's responsibility to indicate the gravity and importance of the different types of errors identified during the correction of the paper concerned. EPSO, thus, did not accept the Ombudsman's draft recommendation. Considering that EPSO had not indicated any valid reasons for its failure to give the relevant information to the complainant, the Ombudsman maintained his finding of maladministration and made a critical remark in his closing decision.

3.6 In the present case, EPSO has emphasised that the Selection Board does not indicate on the evaluation sheet the number of errors for each category of error, and that only the final global mark decided by the Board is valid. In addition, EPSO has failed to give information as to the seriousness and the extent of the errors or weaknesses identified by the Board in the complainant's test paper, and has, in the Ombudsman's view, failed to give any valid reasons for this failure. This constitutes an instance of maladministration.

3.7 In light of EPSO's position in case 674/2004/(MF)PB referred to above, as well as the complainant's express statement that, as far as he is concerned, the Ombudsman can close the present case, the Ombudsman does not consider it appropriate to make a draft recommendation regarding this aspect of the case. The Ombudsman will thus make a relevant critical remark(19).

4 Conclusion

4.1 On the basis of the Ombudsman's findings in point 3 above, it is necessary to make the following critical remarks:

First critical remark

Principles of good administration, embodied in Articles 12(1) and 22 of the European Code of Good Administrative Behaviour(20) require that the Administration provide citizens with the information they have requested, unless it invokes valid and adequate grounds for not doing so. Simple reference to the usefulness of the information to the Administration cannot in itself constitute a valid and adequate reason for not providing the information requested. In the present case, the Commission and EPSO merely noted, in the opinion of 12 April 2005, that a ranking of the candidates did not exist, and that such a ranking would not be useful for the work of the Selection Board. Hence, the Ombudsman considers that no valid or adequate reasons were given for not providing the complainant with information on his ranking in the competition. There has accordingly been maladministration regarding this aspect of the case.

Second critical remark

Providing candidates with a copy of the Selection Board's final evaluation sheet can be an adequate indication of the Board's assessment regarding the errors and weaknesses it identified in a candidate's examination paper. The adequacy of the information provided in the evaluation sheet is to be appraised in view of the purposes of providing a candidate with a copy of his or her marked examination paper. These purposes were set out in the Ombudsman's special report of 18 October 1999 to Parliament. This report was accepted by the Commission. Hence, the evaluation sheet should provide the candidate concerned with sufficiently clear and detailed information in light of those purposes. This requirement implies that, where the evaluation sheet concerns a translation test, it must provide information not only on the types, but also on the seriousness and the extent of the errors or weaknesses identified by the Board in the candidates' paper, without, however, imposing an unreasonable administrative burden on Boards.

In the present case, the evaluation sheet given to the complainant cannot be viewed as having provided the complainant with information that was sufficiently clear and detailed in light of the purposes that were expressed in the Ombudsman's special report of 18 October 1999, since no information was given to the complainant as to how many errors had been found for each of the individual types of errors identified by the Selection Board, and as to whether serious or only minor errors had been committed. This was an instance of maladministration.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) OJ 2001 L 145, p. 43.

(2) OJ 1995 L 281, p. 31.

(3) Case T-291/94 Pimley-Smith v Commission [1995] ECR-SC I-A-209 and II-637.

(4) Case T-33/00 Martinez Paramo and Others v Commission [2003] ECR-SC I-A-105 and II-541.

(5) Case T-53/00 Angiolo v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 84.

(6) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(7) Case T-53/00 Angiolo v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 84.

(8) Case T-277/02 Pascall v Council, judgment of 28 April 2004, not yet reported, paragraph 20.

(9) Cf. the Ombudsman's draft recommendation in 2028/2003/(MF)PB.

(10) Case T-72/01 Pyres v Commission [2003] ECR-SC I-A-169 and II-861, paragraphs 70-71; Case T-233/02 Alexandratos and Panagiotou v Commission, judgment of 17 September 2003, not yet reported, paragraph 31.

(11) Special Report of the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedure (http://www.ombudsman.europa.eu/special/en/default.htm).

(12) See press release no 16/99 of the European Ombudsman of 15 December 1999.

(13) See Case T-19/03 Konstantopoulou, op.cit., para. 61, and Decisions on complaints 324/2003/MF and 774/2003/ELB, which can be found at the Ombudsman's website: http://www.ombudsman.europa.eu

(14) See Decision on complaint 2059/2002/IP, which can be found at the Ombudsman's website: http://www.ombudsman.europa.eu.

(15) See Decision on complaint 774/2003/ELB, which can be found at the Ombudsman's website: http://www.ombudsman.europa.eu

As indicated in part A of the present decision, the Ombudsman does not take a position on the adequacy of the observations made in the evaluation sheet communicated to the complainant in the case at hand.

(16) Article 12(1) of the Code provides: "The official shall be service-minded, correct, courteous and accessible in relations with the public. When answering correspondence, [...] the official shall try to be as helpful as possible and shall reply as completely and accurately as possible to questions which are asked."

Article 22 of the Code provides, inter alia: "1. The official shall [...] provide members of the public with the information that they request. [...] The official shall take care that the information communicated is clear and understandable. [...] 3. If, because of its confidentiality, an official may not disclose the information requested, he or she shall, in accordance with Article 18 of this Code, indicate to the person concerned the reasons why he cannot communicate the information."

(17) Article 255 of the Treaty establishing the European Community, and Regulation 1049/2001 regarding public access to Parliament, Council and Commission documents, OJ 2001 L 145, p. 43.

(18) See Case T-291/94 Pimley-Smith v Commission [1995] ECR-SC I-A-209 and II-637, paragraph 64; Case T-19/03 Konstantopoulou v Court of Justice, judgment of 19 February 2004, not yet reported, paragraph 34; and Case T-375/02 Cavallaro v Commission, judgment of 7 June 2005, not yet reported, paragraph 85.

(19) Relatedly, the Ombudsman points out that, in case 674/2004/(MF)PB, referred to above, he took the view that it was not appropriate to submit a special report to the European Parliament on that same issue. The Ombudsman stated that he would consider whether the issue dealt with in this case could usefully be included in his own-initiative inquiry on access to the evaluation criteria established by Boards for written examinations (OI/5/2005/PB). The Ombudsman stated that he might also consider whether it would be relevant to open a separate own-initiative inquiry. Furthermore, as noted above, the complainant in the present case has expressly stated that, as far as he is concerned, the Ombudsman can now close the present case. In light of the foregoing, the Ombudsman does not consider that it would be appropriate to make a draft recommendation in relation to this issue in the present case. The Ombudsman therefore closes the case.

(20) Article 12(1) of the Code provides: "The official shall be service-minded, correct, courteous and accessible in relations with the public. When answering correspondence, [...] the official shall try to be as helpful as possible and shall reply as completely and accurately as possible to questions which are asked."

Article 22 of the Code provides, inter alia: "1. The official shall [...] provide members of the public with the information that they request. [...] The official shall take care that the information communicated is clear and understandable. [...] 3. If, because of its confidentiality, an official may not disclose the information requested, he or she shall, in accordance with Article 18 of this Code, indicate to the person concerned the reasons why he cannot communicate the information."