Strasbourg, 1 July 2005

Dear Ms M.,

On 26 July 2004, you made a complaint to the European Ombudsman concerning the European Personnel Selection Office's correction of your written test d) in open competition EPSO/A/1/03.

On 4 October 2004, I forwarded the complaint to the Director of the European Personnel Selection Office (hereafter "EPSO"). EPSO sent its opinion on 22 December 2004 and I forwarded it to you with an invitation to make observations, if you so wished. No observations appear to have been received from you.

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

THE COMPLAINT

According to the complainant, the relevant facts are, in summary, the following:

She participated in open competition EPSO/A/1/03 in the field of law. Having received the result of her written test d), which was just below the pass mark (19/20), she made an appeal to the selection board against the mark obtained, since she strongly believed that the essay she had written was of high quality and should be awarded at least the pass mark.

According to the notice of competition, every candidate has the right to appeal against any decision of the selection board at any stage of the competition, including the mark obtained. In case a candidate disagrees with the mark awarded in any of the tests, it is clearly stated that the candidate may request a reassessment. During telephone conversations with various EPSO officials, the complainant was assured that her written test would be remarked by a new and independent marker. The term "reassessment" in the notice of competition was thus interpreted by the EPSO officials as constituting a "remarking" of the test. The complainant was told that a new marker would remark her written test d) and that the new mark would be communicated to the selection board, which would proceed to review her case.

On 9 July 2004, the complainant finally received a reply from the selection board to her appeal, giving the result of the appeal and "explaining" the decision of the selection board. The letter from the selection board clearly states that no remarking of the written test had been carried out. The selection board merely assessed whether the criteria set out for the correction of the test had been correctly applied by the markers. According to the complainant, this course of action deprived her of the proclaimed right, i.e., the right to have her written test reexamined by a third independent marker. By merely verifying whether the criteria set out for the marking had been correctly applied, the selection board followed a route substantially different from the one anticipated, proclaimed and communicated.

The procedure applied by the selection board clearly lacks transparency since the criteria for correction of the tests are not known to the candidates. Furthermore, this procedure assumes that the initial marker is the only individual able to assess the standard the candidate has achieved in a written test. This assumption is in complete contradiction to the fact that what the candidate challenges by lodging an appeal is precisely the decision by the marker. The complainant questions how it is possible to appeal against the mark awarded if a new marker does not correct the test. If the initial mark is merely reaffirmed, the judgement made by the initial marker is unchallengeable, depriving the candidate of her or his right to appeal.

Furthermore, according to the letter from the selection board, the written test was marked on a comparative basis, which, according to the complainant, is a procedure that is inherently unfair if not carried out properly. The comparative marking method would have been fair had a single marker marked all the written tests, since he or she would be able to compare all the answers. However, according to the selection board's letter, the same marker did not mark all the tests. In addition, the asserted application of objective criteria when marking the tests is contradictory to comparative marking, which is a subjective method of evaluation.

Finally, the complainant received a highly inadequate explanation of the mark obtained in her written test d) because the comments of the marker had not been written in a legible manner. Since the complainant has not been able to read the comments on the evaluation sheet, she has not received a valid explanation of her mark. On the same day she received the illegible comments, i.e., on 9 July 2004, she sent e-mails to various EPSO e-mail addresses asking for a more legible explanation. At the time of submitting her complaint to the Ombudsman, she has still not received any response, which constitutes both lack of justification of a decision and avoidable delay.

The complainant alleges that EPSO has failed to:

1. Provide her with a right to appeal by not having an independent marker remarking her written test d);
2. Make a fair evaluation of the tests in the competition by not having one single marker carrying out the comparative evaluation;
3. Make a fair evaluation of the tests by asserting that objective criteria were used to mark them at the same time as applying comparative marking, which is a subjective method of evaluation; and
4. Provide her, within a reasonable time, with a legible explanation of the mark she obtained in written test d).

The complainant claims that her written test d) should be remarked and that, if she obtains the pass mark, she should be admitted to the next stage of the competition.

THE INQUIRY

EPSO's opinion
Background

The complainant participated in open competition EPSO/A/1/03 and, since she passed tests a)-c) and fulfilled the conditions stipulated in the notice of competition, the selection board went on to mark her written test d). However, since she did not obtain the pass mark in test d) - she obtained 19 points out of 40, the pass mark being 20 - her test e) was not corrected and she was excluded from further participation in the selection procedure.

The complainant requested a reconsideration, based on the argument that she considered her essay to be of good quality and therefore fulfilling the high standard required. By letter of 17 June 2004, EPSO informed the complainant that after having carefully reviewed her file, the selection board had confirmed the mark she obtained in written test d). The complainant was reminded that the test was not a classic type of examination, but rather a competition in which the applicants' performance was appraised comparatively. The complainant was also informed that every written test was corrected by at least two markers according to detailed guidelines established by the selection board. The complainant was provided with a copy of her written exam d) as well as of the evaluation sheet completed by the selection board.

In reply, the complainant requested a more legible copy of the evaluation sheet. At the same time she expressed discontent with the review of her results, since her written test had not been remarked. By letter of 3 August 2004, EPSO stressed that the selection board had re-examined the complainant's written test d) and that, after doing so, it had confirmed her initial mark. The complainant was also provided with a typed version of the evaluation sheet.

The complaint

As regards the correction procedure of the written tests, EPSO argues that, as the Court of Justice has consistently held, the selection board enjoys wide discretion in assessing tests(1). It is therefore entirely in the selection board's discretion, within the limits set out in the notice of competition, to decide how the tests will be marked and if there should be a third marking of some tests. According to the annex to the notice of competition in question, applicants could submit a request for their applications to be reconsidered by the selection board. However, nowhere does it state that applicants have a right to a third marking of their written exams. After re-examining an applicant's application, taking into consideration his or her claims, it is up to the selection board to decide whether it has all the necessary elements to take a decision or if it needs more information, namely a third marking of the test.

As to the use of markers by the selection board, it is again within the selection board's powers to decide if it needs the cooperation of assessors to correct the written tests. This is clearly set out in Article 3(3) of Annex III to the Staff Regulations, which states that "[t]he Selection Board may, for certain tests, be assisted by one or more examiners serving in an advisory capacity". A regards the role and the influence of the examiners, it is established case law that "Selection Boards may have recourse to the assistance of examiners whenever they consider this necessary. There is no irregularity if the methods of marking do not differ from one applicant to another and the Selection Board retains the power to make the final assessment."(2)

In the present case, the selection board acted within its powers by laying down objective guidelines to be followed by the assessors when correcting the tests. It is not correct, therefore, to say that there were no objective criteria. All the written tests were corrected anonymously by at least two different markers on the basis of detailed criteria and guidelines previously established by the selection board. In order to allow the selection board to supervise the work of the markers and to ensure consistency, a meeting was held before the marking of the written tests took place. During this meeting, the markers were provided with the correction criteria and received detailed instructions to enable them to carry out their work. The selection board subsequently verified whether these instructions were correctly followed and took careful note of all the comments made by the assessors.

EPSO further points out that it is the selection board alone that decides on the marks given to all applicants, therefore again ensuring that the evaluation criteria are applied in a uniform manner. Naturally, this same procedure was followed as regards the complainant. After having analysed the comments made by the correctors and the marks proposed by them, the selection board decided on the mark to be awarded.

EPSO also points out that the notice of competition laid down objective evaluation criteria for test d) in point B.2: specialist knowledge, comprehension skills and ability to analyse and summarise, and ability to draft.

As regards the complainant's allegation that the marking of the written test on a comparative basis was unfair, EPSO argues that it is the very nature of a competition to make a choice between applicants, which necessarily entails a comparison amongst them. The case law of the Community courts has consistently held that that the selection board's proceedings, in particular the stage regarding the examination of the abilities of the applicants for the post to be filled, involves tasks that are primarily comparative in character(3).

As regards the complainant's allegation that the written tests were not evaluated fairly since they were marked by different markers, EPSO again refers to the case law of the courts, according to which "there is no rule or higher principle of law requiring a Selection Board for a competition to have all the categories of test papers marked by the same examiner. There is no irregularity if the methods of marking do not differ from one to another applicant and the Selection Board retains the power to make the final assessment"(4). This principle was applied in the competition concerned since it was the selection board that established the marks for all applicants.

EPSO further recalls, in reply to the complainant's allegation as regards the legibility of the evaluation sheet, that the complainant was provided with a typed version by letter of 3 August 2004, which unfortunately did not reach her before she made her complaint to the Ombudsman.

As for the communication of the marking criteria established by the selection board to guide the work of the markers, EPSO recalls the rules concerning the obligation to state reasons which are laid down both in the Staff Regulations and in the case law of the Community courts. It is established case law that the obligation for a selection board to state reasons for its decisions has to be reconciled with the secrecy that has to be observed as regards its work, by virtue of Article 6 of Annex III to the Staff Regulations. Therefore, according to case law, the criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessment made of the applicants' respective merits and are therefore covered by the secrecy of the proceedings in the same way as the selection board's assessments(5). However, the complainant was provided with a copy of the evaluation sheet, which reflects the assessment made by the selection board on the basis of the comments from the markers.

The Ombudsman invited the complainant to submit observations on EPSO's opinion. No observations appear to have been submitted by the complainant.

THE DECISION

1 The alleged absence of a right to appeal

1.1 The complaint concerns the correction of the complainant's written test d) in open competition EPSO/A/1/03. The complainant, who did not obtain the pass mark in test d), requested a reassessment of her test, as provided for in the notice of competition. According to the complainant, various EPSO officials assured her that her written test would be remarked by a new and independent marker. The term "reassessment" in the notice of competition was thus interpreted by the EPSO officials as constituting a "remarking" of the test. However, the reply from the selection board to her appeal "explained" the decision of the selection board. The letter from the selection board clearly states that no remarking of the written test had been carried out. The selection board merely assessed whether the criteria set out for the correction of the test had been correctly applied by the markers. According to the complainant, this course of action deprived her of the proclaimed right, i.e., the right to have her written test reexamined by a third independent marker. The complainant questions how it is possible to appeal against the mark awarded if a new marker does not correct the test. If the initial mark is merely reaffirmed, the judgement made by the initial marker is unchallengeable, depriving the candidate of her or his right to appeal. The complainant thus alleges that EPSO has failed to provide her with a right to appeal by not having an independent marker remarking her written test d).

1.2 EPSO argues that the Court of Justice has consistently held that a selection board enjoys wide discretion in assessing tests(6). It is therefore entirely in the selection board's discretion, within the limits set out in the notice of competition, to decide how the tests will be marked and if there should be a third marking of some tests, which were all corrected by at least two different markers. According to the annex to the notice of competition in question, applicants could submit a request for their application to be reconsidered by the selection board. However, nowhere does it state that applicants have a right to a third marking of their written tests. After reexamining an applicant's application, taking into consideration his or her claims, it is up to the selection board to decide whether it has all the necessary elements to take a decision or if it needs more information, namely a third marking of the test. EPSO also points out that it is the selection board alone that decides on the mark to be awarded, after having analysed the comments made by the correctors and the marks proposed by them.

1.3 The Ombudsman notes that the annex to the notice of competition in question mentions that there are certain procedures available "[i]f, at any stage of the competition, [candidates] consider that [their] interests have been prejudiced by a particular decision". The complainant appears to have availed herself of one of these procedures, namely to submit a request for her application to be reconsidered by the selection board.

1.4 The Ombudsman notes EPSO's explanation that it is the selection board alone that decides on the mark to be awarded a candidate, after having analysed the comments made by at least two correctors and the marks proposed by them. The complainant does not appear to have questioned that this marking procedure was actually carried out in her case. Accordingly, and in light of the wording of the annex to the notice of competition, the Ombudsman considers that the "particular decision" in respect of which the complainant made what she describes as an appeal in the present case(7) was the selection board's decision on her mark in written test d), not the marks proposed by the correctors. The Ombudsman therefore does not consider that the procedure invoked by the complainant in the present case necessarily requires that a different corrector or correctors should have remarked the test.

1.5 As noted in point 1.3 above, the procedure used by the complainant in order to challenge the mark awarded to her by the selection board for written test d) was to make a request for her application to be reconsidered. The word reassessment, mentioned by the complainant in her complaint, does not appear to be used anywhere in the notice of competition or its annex. Nor has the complainant provided any evidence to support her assertion that EPSO officials promised her a remarking of the test in question.

1.6 In view of the above, and taking into account the wide discretion that the selection board enjoys when assessing tests, the Ombudsman considers reasonable the procedure applied by EPSO when dealing with requests for reconsideration as regards the marking, i.e., that it is up to the selection board to decide whether it needs a third marking of a test in order to deal properly with the request. In the present case, the Ombudsman does not consider the mere fact that the complainant believes that she did well in written test d) to constitute sufficient reason for requiring the selection board to arrange a remarking of the test by a third independent marker. The Ombudsman therefore finds no maladministration by EPSO as regards this aspect of the complaint.

2 The allegedly unfair marking

2.1 The complainant considers that to mark the written test on a comparative basis is a procedure that is inherently unfair if not carried out properly. According to the complainant, the comparative marking method would have been fair had a single marker marked all the written tests, since he or she would be able to compare all the answers. However, according to the selection board, the same marker did not mark all the tests. In addition, the asserted application of objective criteria when marking the tests is in contradiction to the concept of comparative marking, which is a subjective method of evaluation. The complainant alleges that EPSO failed to make a fair evaluation of the tests in the competition by not having one single marker carrying out the comparative evaluation and by asserting that objective criteria were used to mark the tests at the same time as applying comparative marking, which us a subjective method of evaluation.

2.2 EPSO argues that it is within the selection board's powers to decide if it needs the cooperation of assessors to correct the written tests. This is clearly set out in the Staff Regulations. All the written tests were corrected anonymously by at least two different markers on the basis of detailed criteria and guidelines previously established by the selection board. The case law of the courts provides that "there is no rule or higher principle of law requiring a Selection Board for a competition to have all the categories of test papers marked by the same examiner. There is no irregularity if the methods of marking do not differ from one to another applicant and the Selection Board retains the power to make the final assessment"(8). The selection board subsequently verified whether the criteria and guidelines were correctly followed and took careful note of all the comments made by the assessors. It is the selection board alone that decides on the marks given to all applicants, therefore ensuring that the evaluation criteria are applied in a uniform manner. After having analysed the comments made by the correctors and the marks proposed by them, the selection board decided on the mark to be awarded.

2.3 EPSO further argues that it is the very nature of a competition to make a choice between applicants, which necessarily entails a comparison amongst them. EPSO argues that the case law of the Community courts has consistently held that that the selection board's proceedings, in particular the stage regarding the examination of the abilities of the applicants for the post to be filled, involves tasks that are primarily comparative in character(9).

2.4 The Ombudsman recalls that, as pointed out by EPSO, the case law of the Community courts allows for different markers to correct the tests in a competition, as long as the methods of marking are the same for all candidates and the selection board retains the power to make the final assessment. The case law also acknowledges that the selection board's analysis of the candidates' merits involves tasks that are primarily comparative in character.

2.5 The Ombudsman takes the view that the objective criteria are laid down in order to ensure that the methods of marking are the same for all candidates when their tests are corrected by different markers, whereas the selection board, in making the final assessment for each candidate, carries out the comparative analysis. The Ombudsman does not, therefore, consider that there is any inconsistency or contradiction in the marking practices described by EPSO. The complainant has not provided the Ombudsman with any reasons to doubt that objective criteria were in fact applied by the different markers in the present case. Nor has the complainant questioned EPSO's statement that it was the selection board alone that decided on the marks to be awarded to the candidates and thereby made the final assessment. The Ombudsman therefore finds no maladministration by EPSO as regards this aspect of the complaint.

3 The alleged failure to provide a legible explanation of the obtained mark

3.1 The complainant considers that she received a highly inadequate explanation of the mark obtained in her written test d) because the comments of the marker had not been written in a legible manner. On the same day she received the illegible comments, i.e., on 9 July 2004, she sent e-mails to various EPSO e-mail addresses asking for a more legible explanation. At the time of submitting her complaint to the Ombudsman, she had still not received any response. The complainant alleges that EPSO has failed to provide her, within a reasonable time, with a legible explanation of the mark she obtained in written test d).

3.2 EPSO argues that the complainant was provided with a typed version of the evaluation sheet by letter of 3 August 2004, which unfortunately did not reach her before she made her complaint to the Ombudsman.

3.3 The Ombudsman notes that, according to the complainant, she requested a more legible explanation of the obtained mark by e-mail sent on the same say as she received the original version of the evaluation sheet, i.e., on 9 July 2004. The Ombudsman further notes that EPSO appears to have provided the complainant with a typed version of the evaluation sheet by letter of 3 August 2004. The Ombudsman thus considers EPSO to have provided the complainant with a legible explanation of the mark obtained within a reasonable time. The Ombudsman therefore finds no maladministration by EPSO as regards this aspect of the complaint.

4 The complainant's claim

4.1 The complainant claims that her written test d) should be re-marked and that, if she obtains the pass mark, she should be admitted to the next stage of the competition.

4.2 On the basis of the findings in points 1.6 and 2.5 above, the Ombudsman finds no basis to pursue the complainant's claim.

5 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO. The Ombudsman therefore closes the case.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case 40/86, Kolivas v. Commission, [1987] ECR 2643.

(2) Case T-132/89, Vincenzo Gallone v. Council, [1990] ECR II-549, Case 122/77, Agneessens v. Commission, [1978] ECR 2085 and Case 40/86, Kolivas v. Commission, [1987] ECR 2643.

(3) Case C-254/95 P, Parliament v. Innamorati, [1996] ECR I-3423 and Case T-277/02, Athanacia-Nancy Pascall v. Council, not yet reported.

(4) Case 40/86, Kolivas v. Commission, [1987] ECR 2643.

(5) Case C-254/95 P, Parliament v. Innamorati, [1996] ECR I-3423.

(6) Case 40/86, Kolivas v. Commission, [1987] ECR 2643.

(7) The Ombudsman points out that the procedure of appeal mentioned in the annex is a different procedure from a request for reconsideration.

(8) Case 40/86, Kolivas v. Commission, [1987] ECR 2643.

(9) Case C-254/95 P, Parliament v. Innamorati, [1996] ECR I-3423 and Case T-277/02, Athanacia-Nancy Pascall v. Council, not yet reported.