Strasbourg, 23 May 2006

Dear Mr X.,

On 17 November 2004, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO"), concerning your exclusion from Open Competition COM/A/1/02 and EPSO's decision on your complaint under Article 90(2) of the Staff Regulations. I received your complaint on 3 December 2004.

On 12 January 2005, I forwarded the complaint to the Director of EPSO. The Commission and EPSO sent their joint opinion on 24 May 2005. I forwarded it to you with an invitation to make observations, which you sent on 14 July 2005.

On 21 October 2005, I wrote to you that your complaint had been transferred to another legal officer and that you would be informed of my decision on your complaint or of my next steps by no later than the end of November 2005.

After careful consideration of the Commission's and EPSO's opinion and of your observations, my services came to the preliminary conclusion that a friendly solution could be possible as regards one aspect of your complaint.

On 11 November 2005, my services contacted you by telephone in order to ascertain whether you would agree to a possible proposal for a friendly solution as regards this aspect of your case.

By e-mail of 16 November 2005, you rejected the suggestion to try to pursue a friendly solution that was limited to this aspect of the complaint. You made further comments concerning this and other aspects of the case.

It therefore appeared that further inquiries were necessary. On 6 December 2005, I asked EPSO for a supplementary opinion on four additional allegations and for further information.

On 6 February 2006, EPSO sent its comments, which I forwarded to you with an invitation to make observations, which you sent on 14 March 2006.

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

THE COMPLAINT

Background

On 11 July 2003, the complainant took part in the written test of Open Competition COM/A/1/02, the object of which was to constitute a reserve list of administrators in the fields of agriculture, fisheries and the environment(1). By letter of 30 October 2003, he was informed that the Selection Board had not admitted him to the oral test since, in written test (d), he had been awarded 23 points out of 40 and not 24 or more, as had the 210 candidates with the highest scores.

By letter of 15 November 2003, the complainant submitted a request for re-examination of his test (d) to the Selection Board. He stated that his mark did not correlate to his subjective assessment of his performance in the test, given his extensive background in the field and his proficiency in English, his second language. He asked the Commission to pay special attention to the comparability of the mark accorded to his test paper with those accorded to candidates who had taken the written test in a different language. Furthermore, he asked for access to his corrected test paper, to the assessment criteria for the written test and to statistical information on the candidates' marks broken down by language used in the test. He stated that he wished to receive this information in order to facilitate a possible complaint to the Ombudsman or possible legal proceedings.

On 25 November 2003, the European Personnel Selection Office ("EPSO") sent the candidate a copy of his written test and of the evaluation sheet completed by the Selection Board. It stated that the Board had re-examined his test and confirmed its decision not to admit him to the oral test.

On 11 December 2003, the complainant asked for a second time for access to his corrected test paper and to the assessment criteria, pointing out that the letter from EPSO of 25 November 2003 had not replied to his specific questions nor attached the statistical information he had requested. In addition, the complainant raised a further point. In its German version, the first question of written test (d) read as follows:

"Erläutern Sie das Vorsorgeprinzip im Umweltbereich und nennen Sie zwei konkrete Beispiele für die Anwendung dieses Prinzips. Nehmen Sie persönlich Stellung zu den Vor- und Nachteilen einer Anwendung dieses Prinzips."

The English version read:

"Explain the precautionary principle in the environmental field and give two concrete examples of application of the principle. Give your personal opinion of the advantages and disadvantages of applying the principle."

One of the comments of the Selection Board concerning this part of the test on the complainant's evaluation sheet was: "Candidate did not demonstrate wider knowledge by explaining PP [precautionary principle] examples. Barely satisfactory."

The complainant considered that, whereas the first sentence of the question clearly called for an explanation of the precautionary principle, it only required the naming of two examples ("nennen"). "Nennen", according to the complainant, was not an ambiguous word in German. He noted that he had apparently lost points by only naming and not explaining the examples, although he had strictly followed the instructions.

In a letter of 23 December 2003, EPSO stated that the Selection Board had studied the points the complainant had raised in his letter of 11 December 2003, had re-examined his test and had confirmed its decision. It pointed out that the "information contained in our previous letter follows recommendations made by the European Ombudsman in his special report to the European Parliament of 18 October 1999, in particular concerning the obligation of maintaining confidentiality of the Selection Board's proceedings, notably where the comparative appreciation of candidates' merits is concerned".

On 21 January 2004, the complainant submitted a complaint to the Commission under Article 90(2) of the Staff Regulations. On 25 February 2004, the Commission informed the complainant that his complaint had been registered by the responsible department on 13 February 2004.

The decision on that complaint was made by EPSO on 11 June 2004. On the same day, the decision (in French) was forwarded to the complainant. On 15 July 2005, the complainant wrote to the Commission to remind it that he had not yet received the translation of the decision. The Commission replied that it had sent him the translation on 13 July 2005.

In its decision, EPSO denied that there had been any errors in the assessment or in the review procedure. Under the heading "The Law" and marked "by way of introduction", it made the following statement:

"(...)[T]he assessments made by a selection board when appraising candidates' abilities may be subject to review only where there is a flagrant breach of the rules governing its work (judgment of the Court of First Instance of 15 July 1993 in Joined Cases T-17/90, T-28/91 and T-17/92, Camara Alloisio and Others v Commission [1993] ECR II-841, paragraph 90)."(2)

EPSO's conclusion concerning the substance of the complaint was based on the following considerations:

"The wording of question 1 required candidates, in identical terms in all languages, to perform the same task and it was then for the selection board to assess the extent to which the candidate had replied well or less well. The selection board cannot be replaced in conducting this assessment. At all events, it is obvious that all candidates faced the same 'theoretical' alternative as the complainant, namely that of deducing from the wording of question 1 the type of explanations required." (emphasis in the original).

Concerning the statistical information the complainant had requested EPSO noted, among other things, "that an examination of such data might have been considered useful in order, for example, to assess the impact of a translation error or other mistake detected during the tests. However, as there was no such error in the case in point, the statistical data requested by the complainant were not compiled, and those which do exist were drawn up only for internal purposes in order to make it easier to monitor ongoing procedures and plan future competitions."

Therefore, EPSO rejected the complaint.

The complaint to the Ombudsman

In his complaint to the Ombudsman, the complainant maintained that the Selection Board had wrongly concluded that the two examples requested in question 1 should be explained and that it had therefore wrongly assessed his reply to that question. He considered that this was discriminatory, as the English phrasing of the question ("give examples") might have been understood as "refer to and explain", which meant that the question had not been translated accurately into German.

Furthermore, the complainant criticised the Commission's and EPSO's handling of his complaint. He stated that he believed that the handling of his complaint so far had been marked by a lack of any intention genuinely to consider the substance of his complaint. He made, in summary, the following points:

EPSO's initial reply of 25 November 2003 was inappropriate in light of his express request for a review of the evaluation of his test paper and his specific information requests. The letter was clearly a standard letter that implied a lack of individual consideration of his request. Furthermore, EPSO had not provided him with (i) a copy of the evaluation criteria applied to all parts of the written test; (ii) information on how the Commission attempted to ensure consistency in the marks of tests completed in different languages; and (iii) statistical information on the success in candidates' different tests broken down according to their choice of first language.

The complainant considered that EPSO had failed to give legitimate reasons for not supplying the requested information.

Furthermore, the reference to the Ombudsman's Special Report in EPSO's letter of 23 December 2003 was irrelevant in this context. The complainant considered that this Special Report did not make any recommendations regarding the maintenance of confidentiality but regarding the converse obligations of openness and transparency. He suspected that EPSO's reference to the Special Report was "negligently - if not wilfully - misleading" so as to "deter candidates from pursuing complaints or requesting information which EPSO would be uncomfortable about supplying".

The complainant also alleged maladministration in that he had received the decision on his complaint under Article 90(2) of the Staff Regulations four and a half months after having submitted it, and because, more than four weeks after having received the original version, he, not having received a translation, had had to make a request for it.

In addition, the complainant alleged that the assessment of his complaint had been wrongly limited to the level of review applied by the Community courts in their review of appeals against decisions relating to recruitment and that the decision on his complaint "deliberately misquoted" a passage of a judgment of the Court of First Instance to give him the impression that no control could be exercised over the Selection Board in the absence of a "flagrant breach of the rules governing its work".

On the basis of the above, the complainant's allegations can be summarised as follows.

1. The Selection Board wrongly concluded that the two examples requested in question 1 should be explained and therefore wrongly assessed his reply to that question;
2. EPSO failed to provide appropriate replies to his requests for information and for review of the Selection Board's assessment: (i) EPSO's replies did not respond adequately to the content of his letters; (ii) EPSO failed to give legitimate reasons for not supplying the information he had requested; and (iii) EPSO's reference to the Ombudsman's Special Report was irrelevant;
3. There was maladministration in respect of EPSO's decision on his complaint under Article 90(2) of the Staff Regulations (i) because he received the decision four and a half months after having submitted it; (ii) because, more than four weeks after having received the original version, he, not having received a translation, had had to make a request for it; and (iii) because the assessment of his complaint was wrongly limited to the level of review applied by the Community courts.

The complainant claimed that EPSO should give him the information requested or state legitimate reasons for not supplying it.

THE INQUIRY

The Commission's and EPSO's opinion

In their joint opinion, the Commission and EPSO made the following comments:

(1) Concerning the substance of the complaint

Contrary to the complainant's view, the terms used in the German, French and English versions of the test ("nennen Sie zwei konkrete Beispiele", "donnez deux exemples concrets" and "give two concrete examples") did not differ fundamentally, as none of these terms was the equivalent of "give reasons for your choice" or "explain". If the Selection Board had only wanted candidates to give a simple list of examples, a more appropriate term would have been used, such as "zitieren" in German, "citer" in French or "quote" in English.

The Selection Board was perfectly entitled to expect from candidates an explanation as to the choice made and the appropriateness of the examples requested. Contrary to the complainant's conviction, there was no discrimination based on the language used; all candidates had been put in the same situation and had been presented with the same case study and the same terms.

(2) Concerning the alleged procedural irregularities
(a) Concerning the evaluation criteria

In order to be able to compare the standard of the test results, the Selection Board drew up rules concerning its working method in advance, which were applied in each marking. Those criteria were covered by the secrecy of the proceedings in the same way as the Board's assessments. Divulging these documents, which formed part of the preparatory work of the Board and were used as part of its deliberations, would violate Article 6 of Annex III to the Staff Regulations, as well as the Board's decision-making process. They were therefore covered by the exception laid down in Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(3). The assessment of the Selection Board did not only relate to the above criteria but was also the result of a comparison of the performance of all candidates who took part in the competition, which was a question of judgment and, as such, came within the Board's wide powers of discretion.

(b) Information on how the Commission ensured consistency

The procedure applied in the context of correcting the tests was intended to ensure a fair and uniform comparison of all candidates, regardless of their nationality. In setting objective and uniform criteria, the Selection Board ensured equal treatment of all candidates.

(c) Access to statistical information

EPSO did not compare the candidates' results by language at each stage of the competition. This information went beyond the aim of the statistics drawn up by EPSO in the context of the public interest and was not linked to the candidate's right to know the outcome of the competition in which he took part. Therefore, the complainant's request could not be met.

(d) Concerning the reference to the Ombudsman's Special Report

The reference to the Ombudsman's Special Report of 18 October 1999 was totally correct, in that the Ombudsman had recognised that the deliberations of the Selection Board regarding the comparative assessment of the candidates' merits should remain secret. It should also be noted that, following action taken by the Commission on the basis of this Special Report, candidates could now obtain a copy of their tests and of the file drawn up by the Board assessing these tests.

(e) Concerning the complaint under Article 90(2) of the Staff Regulations

The deadlines in this procedure had been fully met. The complaint had been registered by the competent Commission department on 13 February 2004. According to the regulations and procedures for processing complaints, the reasoned decision of the appointing authority had to be communicated within four months, in this case before 13 June 2004. The decision had been taken on 11 June 2004. As regards the translation of the decision, the complainant had been informed that he would receive the English translation as soon as it was available. The translation had been posted to the complainant on 13 July 2004. This had been done before the complainant had sent a letter to the competent department (15 July 2005).

As to the scope of the examination carried out by the appointing authority, the Commission and EPSO pointed out that, during the four-month period laid down, cases were examined on the basis of all the information judged to be of use, including well-established case-law, specifically with regard to competitions. They added that the procedure had been identical to that applied in all other complaints.

The complainant's observations

In his observations on the Commission's and EPSO's opinion, the complainant stated that he did not wish to comment on all points raised in the opinion because this would essentially amount to rewriting his original complaint. He welcomed the fact that the Commission and EPSO had decided to consider the substantive issues he had raised at the various stages in the review and complaint procedure. He stressed, however, that he had expected them to do so at a far earlier stage.

The complainant made the following further comments:

(1) Concerning substantive issues

The complainant stressed that he considered that the correct translation of the English phrase "give an example" was "geben Sie ein Beispiel" and not "nennen Sie ein Beispiel", and that the Commission and EPSO did not account for the difference between the verbs "nennen" and "geben". As to the Commission's and EPSO's argument that they would have used the verb "zitieren" (English "quote") if they had not required an explanation, the complainant considered that this would not be correct German and that their argument was therefore fallacious and lent support to his argument regarding mistranslation. The complainant maintained that the candidates sitting the German version of the test and those sitting the English version had been put different questions and had therefore been treated unequally.

(2) Concerning procedural issues

The complainant acknowledged that the Commission and EPSO had replied to his comments regarding the delay in the translation of EPSO's decision on his complaint under Article 90(2) of the Staff Regulations. However, he considered that they had failed to reply to a number of the more serious procedural points he had raised. In particular, the Commission and EPSO had not commented on their alleged misrepresentation of the case-law of the Court of First Instance.

The complainant also considered that, for the review and complaints procedure to be a viable means of protection, "such procedures must be genuine - complaints and requests for reviews must be taken seriously and - however time consuming and costly - decided on their merits on a case-by-case basis." The complainant considered that this had not been done in his case.

The Ombudsman's efforts to achieve a friendly solution

After careful consideration of the Commission's and EPSO's opinion and of the complainant's observations, the Ombudsman's services came to the preliminary conclusion that the Commission and EPSO had not responded adequately to all of the complainant's allegations. It appeared that a friendly solution could be possible concerning EPSO's refusal to grant the complainant access to certain statistical data.

The Ombudsman's services therefore contacted the complainant by telephone in order to ascertain whether he would agree to a possible friendly solution concerning the issue of access to certain statistical data. He was informed about the preliminary conclusions the Ombudsman's services had come to as regards his complaint.

In the telephone conversation, the complainant stated that he wished to think about the suggestion. He also made the following comments:

1. The delay in sending him the translation of the decision on his complaint under Article 90(2) of the Staff Regulations did constitute maladministration because this meant that the binding deadline was effectively not valid for complainants whose language happened not to be the one used by EPSO.
2. He was concerned that there were several issues in the Commission's and EPSO's dealing with his case, each of which either constituted maladministration in itself or was only just short of being maladministration. Therefore, he considered that the way in which the Commission and EPSO had dealt with his requests and complaint - seen as a whole - constituted maladministration.

On 16 November 2005, the complainant sent an e-mail rejecting the suggestion to try to pursue a friendly solution that was limited to the aspect of access to statistical data. Nevertheless, he stated that he would welcome it if the Ombudsman asked EPSO to supply these data. The complainant also made the following further comments:

1. The issue of the alleged discrimination was a central aspect of his complaint. Given that the Commission and EPSO had made comments on this issue, it should be included in the Ombudsman's evaluation of the complaint.
2. It was a fundamental principle of good administration that there should be different standards for review in administrative and legal procedures. The Ombudsman should take this into account in his evaluation.
3. The allegedly inaccurate quote from the judgment of the Court of First Instance was important to him and should also be taken into account.

Further inquiries

Given that the complainant had rejected the suggestion to try to pursue a friendly solution and since he had stated that additional issues that had so far not been included in the Ombudsman's inquiry were important to him, it appeared necessary to conduct further inquiries.

The Ombudsman's request for a supplementary opinion and for further information

Therefore, the Ombudsman asked EPSO for a supplementary opinion on four additional allegations, which were summarised as follows:

1. EPSO had not replied to the complainant's allegation that it had "deliberately misquoted" a passage of a judgment of the Court of First Instance.
2. He should have been sent the translation of the decision on his complaint under Article 90(2) of the Staff Regulations within the relevant deadline and not only the original of the decision.
3. The way EPSO dealt with his case - seen as a whole - constituted maladministration.
4. The Selection Board's assessment of his test was discriminatory. The German version of the question at issue ("nennen Sie zwei konkrete Beispiele") had been different from the English version ("give two concrete examples"), so that candidates sitting the German version of the test and those sitting the English version had been treated unequally.

The Ombudsman was aware that the Commission and EPSO had already commented on the last issue in their joint opinion. However, given that it had not been explicitly included in the allegations on which the Ombudsman had asked EPSO to submit an opinion, he gave EPSO the opportunity to make additional comments, if it so wished.

Furthermore, the Ombudsman asked EPSO for additional information concerning the issue of access to statistical data.

The Ombudsman noted that, in its decision on the complainant's complaint under Article 90(2) of the Staff Regulations, EPSO had mentioned that it had drawn up certain statistical data for internal purposes. Therefore, the Ombudsman asked EPSO to explain why it considered that it could not grant the complainant access to these data and, in case it did not have the other data requested by the complainant, why it would not be in a position to compile these data.

EPSO's reply to the Ombudsman's request

As regards the Ombudsman's request for a supplementary opinion on the four additional allegations, EPSO stated that all the arguments which could show that the complainant's rights had been respected in full were included in the Commission's and EPSO's opinion on the present complaint and that, therefore, it did not consider it necessary to add further comments as suggested by the Ombudsman.

As to the Ombudsman's request for further information on the issue of access to statistical information, EPSO drew attention to the reasons why the complainant wished to receive the statistical data, namely, he claimed that there had been maladministration by EPSO and considered that it was up to it to show that there had been no discrimination between candidates on account of their choice of language. However, it should be borne in mind that, according to the case-law of the Community courts, acts of the Community institutions benefit from a presumption of legality in the absence of any evidence that would undermine that legality, and not the reverse. EPSO stated that the complainant had not put forward any argument which would justify a presumption of discrimination and that it had already explained in its opinion that the different language versions of the question at issue contained no fundamental difference. Furthermore, EPSO stressed that a presumption of discrimination could not be deduced just from the number of successful candidates who passed the tests in one language compared with those in other languages.

Therefore, EPSO considered it inappropriate to make the statistics available to the complainant.

However, in order to enable the Ombudsman to consider the various aspects of the complaint in a well-informed way, EPSO enclosed the statistics available to it and pointed out that their purpose was to facilitate the sound administration of the procedures and also to make it possible to offer the competent administrative authorities general information about the competitions. EPSO did not share the complainant's conviction concerning the need for the statistics to be made available to him but left the decision on the advisability of forwarding them to him to the discretion of the Ombudsman.

The Ombudsman's approach

The Ombudsman considered that the statistical data provided by EPSO appeared to be of considerable importance to the complainant. Since EPSO did not bring forward any objections, such as confidentiality, against forwarding the data to the complainant, the Ombudsman decided to pass them on to the complainant.

The complainant's observations

Having received EPSO's reply and a copy of the statistics, the complainant made the following observations:

He found the statistical information very revealing, particularly when read in conjunction with statistics for other competitions of similar size. Since they represented significant new information, his reply to the Ombudsman was without prejudice to his right to take further action on the basis of that information.

As he had repeatedly pointed out, the wording in the different language versions raised the question of a potential mistranslation, which was backed up by the Commission's and EPSO's tortuous arguments on that matter. There was prima facie evidence of mistranslation with material effect on the test.

On the basis of statistical calculations, the complainant argued that the very low proportion of Germans who passed the written test was statistically significant (in contrast, for example, to the very low proportion of Portuguese who passed the test). The statistics very clearly supported his argument that a translation error had materially affected the outcome of the tests.

As to EPSO's statement that a presumption of discrimination could not be deduced from the number of successful candidates, the complainant stated that statistics could not prove anything in themselves and that there were indeed a number of reasons why the candidates taking the test in German may have performed weakly, for example that they were not particularly well prepared or that they did not show particular aptitude in environmental matters. However, this did not seem to be borne out by their success in the pre-selection tests. He also suggested that an unofficial quota might have been applied.

In any case, EPSO had a prima facie case to answer. He did not believe that the Commission and EPSO had yet convincingly addressed the substance of his complaint.

The complainant maintained that he had been penalised for failing to explain something which he was, unlike candidates in other languages, asked to "name". This was unreasonable and against his legitimate expectation that his test paper was going to be marked on the basis of how accurately he answered the questions put.

Furthermore, neither EPSO nor the Commission had dealt appropriately with either the substance or the procedural aspects of his complaint. EPSO had chosen not to respond to all the questions the Ombudsman had put to it in his request for a supplementary opinion and for further information. The complainant hoped that the Ombudsman would draw his own conclusions from this failure to respond - as the Commission and EPSO had failed to respond to a number of critical points over the course of the procedure.

THE DECISION

1 Preliminary remarks

1.1 The complainant took part in Open Competition COM/A/1/02. Since, in written test (d), he was awarded 23 points out of 40 and not 24 or more, as had the 210 candidates with the highest scores, the Selection Board did not admit him to the oral test. In his complaint to the Ombudsman, the complainant alleged that the European Personnel Selection Office ("EPSO") had wrongly assessed his achievements in written test (d). He also made a number of allegations regarding EPSO's and the Commission's handling of his subsequent requests for information and of his complaint under Article 90(2) of the Staff Regulations. The Ombudsman asked EPSO to submit an opinion on three allegations and one claim. However, in his subsequent correspondence with the Ombudsman, the complainant raised a number of further points, which were interpreted as containing four additional allegations. The Ombudsman therefore asked EPSO for a supplementary opinion on these allegations.

1.2 In order to make this decision as easily readable as possible, it appears appropriate to deal with the allegations and the claim under eight headings: the allegedly wrong assessment of the test results (point 2); alleged discrimination (point 3); the alleged failure to provide appropriate replies and the complainant's related claim (point 4); the alleged misrepresentation of the Ombudsman's Special Report of 18 October 1999 (point 5); alleged delays in dealing with the complaint under Article 90(2) of the Staff Regulations (point 6); the allegedly too limited scope of review concerning the Article 90(2) complaint (point 7); the alleged misquote from a judgment of the Court of First Instance (point 8); and the complainant's allegation that the way EPSO dealt with his case - seen as a whole - constituted maladministration (point 9).

1.3 In his observations on EPSO's supplementary opinion, the complainant suggested that an unofficial quota might have been applied in the competition at issue in order to select a certain number of candidates according to their choice of language in the written test. The complainant has not made this allegation in his original complaint to the Ombudsman, nor does he appear to have referred to it at any point of the review and complaints procedure with EPSO. Therefore, this aspect cannot be taken into account in the context of the present decision. Should he wish to pursue the issue further, the complainant remains of course free to lodge a new complaint with the Ombudsman, provided (a) that he can substantiate the allegation, for example by referring to evidence and (b) that he has made the appropriate prior administrative approaches to EPSO.

1.4 The recruitment competition at issue was organised by the Commission. EPSO subsequently took over the responsibility for it and gave all the relevant replies to the complainant. Therefore, the Ombudsman asked EPSO for an opinion concerning the present complaint. However, the Commission and EPSO sent a joint opinion. Subsequently, EPSO alone replied to the Ombudsman's request for a supplementary opinion and for further information. In order to simplify matters, the Ombudsman will only refer to EPSO as the body against which the present complaint is directed.

2 Allegedly wrong assessment of test results

2.1 One of the questions in written test (d) of Open Competition COM/A/1/02 required candidates to "give two concrete examples of application of the [precautionary] principle". The German version read: "Nennen Sie zwei konkrete Beispiele für die Anwendung dieses Prinzips". The complainant considered that this meant that he should name the examples and not explain them. He alleged that he had lost points because he had not explained the examples, although he had strictly followed the instructions.

2.2 EPSO took the view that the terms used in the English and the German versions of the test did not differ fundamentally, as none of these terms was the equivalent of "give reasons for your choice" or "explain". If the Selection Board had only wanted candidates to provide a simple list of examples, a more appropriate term would have been used, such as "zitieren" in German or "quote" in English. EPSO considered that the Board was perfectly entitled to expect from candidates an explanation as to the choice made and the appropriateness of the examples.

2.3 The Ombudsman has doubts as to whether the use of the verb "zitieren", which EPSO presented as a theoretical alternative, would be correct in the hypothetical German phrase "zitieren Sie Beispiele". "Zitieren" appears to imply that somebody else's words should be quoted literally and would thus not appear to form a valid combination with "Beispiele". However, since this phrase did not form part of the test question at issue, it would not appear to be relevant for the Ombudsman's evaluation of this aspect of the complaint.

2.4 As to the complainant's view that the German phrase "nennen Sie zwei konkrete Beispiele" only called for the naming of two examples and not for an explanation, the Ombudsman recalls the structure of the test question at issue. The question consisted of three distinct parts. The first part explicitly called for an explanation of the precautionary principle ("Erläutern Sie...") in abstract terms. The second part asked for two concrete examples of applications of the principle, without further qualification. The third part called for the candidates' personal opinion, again in abstract terms. Given this structure of the question and the fact that it did not require an explanation on the basis of or using examples, the complainant's interpretation of the second part of the question, that he should only name two examples, does not appear unreasonable. However, it cannot be excluded that mere naming might not be sufficient to show that the chosen examples are actually valid in the given context. Therefore, EPSO's position that it was entitled to expect an explanation as to the appropriateness of the examples does, at first sight, not appear to be without merit, either.

2.5 In any event, the Ombudsman recalls that, as established by Community case-law, the Selection Board enjoys a wide discretion in assessing the results of tests. Whether or not its value judgments were well-founded can be reviewed by the Community judicature only in clear cases of infringement of the rules governing its proceedings (Case 195/80 Michel v Parliament [1981] ECR 2861, paragraphs 24 and 25; Case T-115/89 González Hoguera v Parliament [1990] ECR II-831, and Case T-55/91 Fascilla v Parliament [1992] ECR II-1757), manifest error or misuse of powers, or if it has manifestly exceeded the bounds of its discretion (Case 30/86 Kolivas v Commission [1987] ECR 2643, paragraph 11).

2.6 The Ombudsman considers that the Selection Board's assessment of the complainant's reply does not appear to constitute such a manifest violation. He therefore finds no maladministration concerning this aspect of the complaint.

3 Alleged discrimination

3.1 The complainant considered that the German version of the question at issue ("nennen Sie zwei konkrete Beispiele") had been different from the English version ("give two concrete examples"), so that candidates sitting the German version of the test and those sitting the English version had been treated unequally. He argued that the English phrasing "give examples" might have been understood as "refer to and explain", which meant that the question had not been translated accurately into German.

3.2 EPSO submitted that, contrary to the complainant's view, the terms used in the German, French and English versions of the text ("nennen Sie zwei konkrete Beispiele", "donnez deux exemples concrets" and "give two concrete examples") did not differ fundamentally, as none of these terms was the equivalent of "give reasons for your choice" or "explain". There was no discrimination based on the language used; all candidates had been put in the same situation and had been presented with the same case study and the same terms.

3.3 Having examined statistical data on the candidates' success in the written test broken down by language, the complainant argued that the statistics very clearly supported his argument that a translation error had materially affected the outcome of the test since only a very low proportion of Germans had passed the test.

3.4 The Ombudsman recalls that statistics on the number of successful candidates per language cannot in themselves constitute evidence of alleged discrimination. The fact that they had passed the pre-selection tests does not mean that all candidates taking the written test were equally knowledgeable or well-prepared. Furthermore, the statistics do not show in which part of the test the unsuccessful candidates lost points. It should be recalled that the alleged translation error only concerned one aspect of one of the test questions.

3.5 However, even if one assumed that the statistics could provide a certain indication for alleged discrimination, the complainant's view that the statistics "very clearly supported his argument" does not appear to be convincing. According to the statistics, 221 out of a total of 481 candidates succeeded in the written test, which means that 46% of the candidates succeeded. The "success rate" for candidates with German as their main language was 39% (51 out of 132 participants). The rate of successful candidates taking the test in English was 49% (17 out of 35 participants). At first sight, the difference between these rates does not appear extraordinary. This impression is confirmed if one takes into account that the "success rate" varied between 14% (candidates taking the test in Portuguese) and 56% (candidates taking the test in Greek).

3.6 Therefore, the Ombudsman considers that, in as far as the complainant relies on the statistics provided by EPSO to support his allegation of discrimination, his argument is not convincing.

3.7 As far as the substance of the complainant's position that there was a translation error is concerned, the Ombudsman notes that the complainant does not refer to any conclusive evidence in order to support his view that the phrases "nennen Sie zwei konkrete Beispiele" and "give two concrete examples" are semantically different to a degree that could constitute discrimination.

3.8 Both expressions are widely used in the respective languages. To the Ombudsman's mind, neither of them obviously implies or excludes the requirement to give reasons for one's choice. At first sight, the German expression appears to be a valid translation of the English expression.

3.9 Therefore, the Ombudsman considers that the complainant has not substantiated his allegation that candidates taking the German version of the test were being discriminated against because the German version differed from other language versions. He therefore finds no maladministration as regards this aspect of the complaint.

4 EPSO's alleged failure to provide appropriate replies and related claim

4.1 The complainant alleged that EPSO had failed to provide appropriate replies to his requests for information and for review of the Selection Board's assessment. In particular, he alleged that EPSO's initial reply of 25 November 2003 had been inappropriate in light of his express request for a review of the evaluation of his test and his specific information requests. The letter had been a standard letter that implied a lack of individual consideration of his request. Furthermore, EPSO had not provided him with (i) a copy of the evaluation criteria applied to all parts of the written test; (ii) information on how the appointing authority attempted to ensure consistency in the marks of tests completed in different languages; and (iii) statistical information on the success in the different tests of candidates broken down according to their choice of first language. The complainant considered that EPSO had failed to give legitimate reasons for not supplying the information he had requested. He claimed that EPSO should give him the information requested or state legitimate reasons for not supplying that information.

4.2 Concerning the complainant's allegation that EPSO's initial reply had been inappropriate to his request for review, EPSO did not make any comments in its opinion. However, it dealt with substantial issues that had been raised in the complainant's initial request for review (see point 4.5 below).

4.3 In his observations, the complainant welcomed the fact that EPSO had now substantively considered the issues raised at the various stages in the review and complaint procedure. However, he added that he had expected it to do so at a far earlier stage.

4.4 The Ombudsman notes that, in his letter of 15 November 2003, the complainant asked the Commission to pay special attention to the comparability of the mark accorded to his test (d) with those accorded to candidates who had taken the written test in a different language. He stated that he had reason to believe that a higher standard may have been required as regards tests completed in German than in languages chosen by relatively few participants. In its reply letter of 25 November 2003, EPSO stated that the Selection Board had re-examined his test and confirmed the results previously communicated to him.

4.5 In its opinion, EPSO explained that, in order to be able to compare the standards of the test results, the Selection Board had drawn up rules concerning its working method in advance. Those rules related to the qualification criteria(4) and the distribution of points and were applied to the marking of every test paper.

4.6 The Ombudsman notes that the complainant has not provided any concrete arguments or evidence to justify the view, voiced in his initial request for review, that a higher standard may have been required as regards tests completed in German than in other languages. Therefore, and in view of the fact that EPSO now appears to have dealt with the other substantive issues raised in the complainant's initial request, the Ombudsman considers that it is not necessary to pursue any further the question as to whether EPSO's initial reply was inappropriate regarding the complainant's request for review.

4.7 Concerning access to the evaluation criteria, EPSO argued that these criteria were covered by the secrecy of the proceedings in the same way as the Selection Board's assessments.

4.8 The Ombudsman has noted, with regard to several complaints he has dealt with recently, that this issue appears to be a serious concern to many unsuccessful candidates who have turned to him. In the Ombudsman's view, it is clear that the issue deserves special attention. On 10 October 2005, he therefore opened an own-initiative inquiry (OI/5/2005) into the issue of access to the evaluation criteria established by the Selection Boards. Given that the issue will be dealt with in depth in that inquiry, the Ombudsman considers that it would be reasonable to await the outcome of the inquiry. He therefore takes the view that, at present, there are no grounds to pursue the issue further in the context of the present complaint. However, the complainant remains of course free to submit a new complaint as regards this aspect of his complaint once the results of the Ombudsman's own-initiative inquiry are known.

4.9 Concerning information on how the appointing authority attempted to ensure consistency in the marks of test papers completed in different languages, EPSO pointed out that the setting by the Selection Board of objective and uniform criteria ensured equal treatment of all candidates.

4.10 The Ombudsman notes that the complainant has not commented on this issue in his observations. Given that, as set out in point 4.5 above, EPSO has provided an explanation concerning this issue and that the Ombudsman has not received any information indicating that this explanation could be insufficient, the Ombudsman considers that it does not appear to be necessary to pursue this issue any further.

4.11 Concerning the access to statistical information, EPSO explained that it did not compare the candidates' results by language at each stage of the competition, that this information went beyond the aim of the statistics it drew up in the context of the public interest and was not linked to the candidate's right to know the outcome of the competition in which he took part, which was why the complainant's request could not be met.

4.12 In its reply to the Ombudsman's request for further information as to why the statistical data could not be supplied, EPSO stated that there was no argument which would justify a presumption of discrimination and that, furthermore, such a presumption could not be deduced just from the number of successful candidates who had passed the tests in one language compared with those of other languages. Therefore, it considered it inappropriate to make the statistics available to the complainant. However, it enclosed the statistics in question in order to enable the Ombudsman to consider the various aspects of the complaint in a well-informed way. It left it to the Ombudsman's discretion to decide on the advisability of passing them on to the complainant.

4.13 Since the data appeared to be of considerable importance for the complainant and since EPSO had not brought forward any objections against the forwarding of the data, such as confidentiality, the Ombudsman decided to pass them on to the complainant.

4.14 In his observations, the complainant stated that these statistics constituted "significant new information". He did not, however, make any comments that could indicate that he might not be satisfied with the data EPSO supplied.

4.15 Therefore, the Ombudsman concludes that there are no grounds for further inquiry as regards this aspect of the complaint.

5 EPSO's alleged misrepresentation of the Ombudsman's Special Report of 18 October 1999

5.1 The complainant alleged that EPSO's reference to the Ombudsman's Special Report in its letter of 23 December 2003 was irrelevant. He believed that it was intended to deter candidates from pursuing complaints or requesting information which EPSO would feel uncomfortable in supplying and was thus misleading.

5.2 In its letter of 23 December 2003, EPSO had informed the complainant that the Selection Board had studied the points he had raised in his letter of 11 December 2003, had re-examined his test and had confirmed its decision. It had further pointed out that the "information contained in our previous letter follows recommendations made by the European Ombudsman in his special report to the European Parliament of 18 October 1999, in particular concerning the obligation of maintaining confidentiality of the Selection Board's proceedings, notably where the comparative appreciation of candidates' merits is concerned". The information to which EPSO referred in this sentence appears to be the information it sent to the complainant in its letter of 25 November 2003, concerning the marking and review procedure adopted by EPSO.

5.3 In its opinion, EPSO submitted that the reference to the Ombudsman's Special Report had been correct, in that the Ombudsman had recognised that the deliberations of the Selection Board regarding the comparative assessment of the candidates' merits should remain secret. It also noted that, following action taken by the Commission on the basis of this Special Report, candidates could now obtain a copy of their test paper and of the evaluation sheet drawn up by the Board assessing these tests.

5.4 The Ombudsman recalls that principles of good administration require the Community institutions and bodies to provide accurate information to citizens. The institutions and bodies should avoid presenting information in a way which is misleading.

5.5 The Ombudsman also recalls that his Special Report of 18 October 1999 to the European Parliament followed an own-initiative inquiry into the secrecy which formed part of the Commission's recruitment procedures. As the complainant pointed out, the general thrust of this Special Report was not to protect the level of secrecy adopted by the Commission, but to make recommendations as to how the Commission could further transparency in competitions. While accepting that the proceedings of the Selection Boards, in particular their deliberations, must remain secret, the Ombudsman considered that this should not prevent the Commission from complying with principles of good administration. He therefore recommended that the Commission give candidates access to their own marked test paper upon request.

5.6 The Ombudsman notes that, in its letter of 23 December 2003, EPSO qualified its reference to the Ombudsman's Special Report as being valid "in particular concerning the obligation of maintaining confidentiality of the Selection Board's proceedings, notably where the comparative appreciation of candidates' merits is concerned". This latter aspect appeared explicitly in EPSO's letter of 25 November 2003, in which EPSO informed the complainant that "[c]andidates' merits are in fact appraised comparatively". Furthermore, by its letter of 25 November 2003, EPSO had given the complainant access to his test paper and to the evaluation sheet completed by the Board. Therefore, it appears that the Ombudsman's Special Report was relevant in this context.

5.7 It is true that EPSO could have expressed more clearly why it considered that the Ombudsman's Special Report was relevant in the context of its letter to the complainant of 25 November 2003. However, the Ombudsman does not consider that this reference was misleading. He therefore finds no maladministration concerning this aspect of the complaint.

6 Alleged delays in dealing with the complaint under Article 90(2) of the Staff Regulations

6.1 The complainant alleged that there was maladministration as regards the handling of his complaint under Article 90(2) of the Staff Regulations. He alleged that he had received the decision too late and that he had had to make a request for a translation more than four weeks after having received the original.

6.2 EPSO argued that the deadlines had been fully kept.

6.3 The complainant considered that he should have been sent the translation of the decision within the relevant deadline and not only the original of the decision. Otherwise the binding deadline was effectively not valid for complainants whose language happened not to be the one used by EPSO. The Ombudsman included this aspect in his request for a supplementary opinion.

6.4 EPSO did not comment on this issue in its reply to this request.

6.5 The complainant does not appear to contest EPSO's account of the chronology of events. His complaint was registered by the competent Commission department on 13 February 2004. The decision was taken on 11 June 2004, that is, within four months after the registration of the complaint and forwarded to the complainant on the same day. The translation was posted to the complainant on 13 July 2004. This was done before the complainant sent his request to the competent department (on 15 July 2004).

6.6 According to Article 90(2) of the Staff Regulations, "[t]he authority shall notify the person concerned of its reasoned decision within four months from the date on which the complaint was lodged".

6.7 The Ombudsman notes that the complaints procedure under Article 90(2) of the Staff Regulations is obligatory for any person to whom the Staff Regulations apply, that is to say in particular to civil servants of the European Communities, before they can bring their case before the Community courts or before the Ombudsman. Article 28(f) of the Staff Regulations provides that an official may be appointed only on condition that "he produces evidence of a thorough knowledge of one of the languages of the Communities and of a satisfactory knowledge of another language of the Communities to the extent necessary for the performance of his duties". It is therefore not excluded that the Community institutions and bodies might be entitled to answer complaints lodged by their civil servants under Article 90(2) of the Staff Regulations in a language other than their own and to provide a translation into the language of these officials only after the expiry of the period of four months laid down in this provision. However, regard should be had to the fact that, in the present case, the procedure was not used by a civil servant, but by a citizen who applied for a post. For candidates in selection procedures, recourse to the Article 90(2) procedure is optional(5).

6.8 The Ombudsman recalls that it is good administrative practice to communicate decisions to citizens in good time and in the language in which they addressed the institution. He notes that EPSO has not referred to any reasons as to why it could be justified to treat candidates in the selection procedures differently from other citizens in this respect. In the Ombudsman's view, the pure fact that candidates have been granted the possibility to lodge complaints concerning decisions in recruitment proceedings on the basis of Article 90(2) of the Staff Regulations cannot justify any such departure from principles of good administration. It appears useful to note that recourse to Article 90(2) of the Staff Regulations means that the institution or body concerned has a full four months for its decision on the complaint . The Community institutions and bodies would thus in any event appear to dispose of a sufficiently long period of time to enable them to provide candidates with a translation into their own language of decisions on Article 90(2) complaints lodged by these candidates.

6.9 In this case, the original text of the decision (in French) was sent in good time. The Ombudsman notes that the complainant was informed in the letter accompanying this decision that the English translation of the decision would be sent to him as soon as it was available.

6.10 However, the Ombudsman also notes that EPSO has not offered any explanation or apology as to why it took it more than a month to translate the decision into English. He considers that EPSO's failure to notify its decision to the complainant in the language in which he lodged his complaint within the relevant deadline constitutes an instance of maladministration. A critical remark will therefore be made concerning this aspect of the complaint.

7 The allegedly too limited scope of review in dealing with the complaint under Article 90(2) of the Staff Regulations

7.1 The complainant alleged that the assessment of his complaint under Article 90(2) of the Staff Regulations had been wrongly limited to the level of review applied by the Community courts.

7.2 Concerning the level of review, EPSO argued that it had taken into account all information judged to be of use, including well-established case-law, specifically with regard to competitions. It added that the procedure had been identical to that applied in all other complaints.

7.3 The Ombudsman recalls the definition of maladministration he gave in his Annual Report 1997: "Maladministration occurs when a public body fails to act in accordance with a rule or principle which is binding upon it".

7.4 The Ombudsman notes that the complainant has not explained according to which rule or principle EPSO would, in his view, be obliged to adopt higher standards in examining complaints than the Community courts. He therefore considers that the complainant has not established his allegation that the scope of review in dealing with his Article 90(2) complaint was too limited.

7.5 In order to avoid possible misunderstandings, the Ombudsman wishes to add in this context that, in his review of administrative decisions, he has recourse to the case-law of the Community courts as well. Therefore, the scope of his review does not necessarily go beyond that of the review carried out by the Courts either (see for example point 2.5 above).

8 EPSO's alleged misquote from a judgment of the Court of First Instance

8.1 In its decision on the complainant's complaint under Article 90(2) of the Staff Regulations, EPSO had made the following statement, under the heading "The Law" and marked "by way of introduction":

"(...)[T]he assessments made by a selection board when appraising candidates' abilities may be subject to review only where there is a flagrant breach of the rules governing its work (judgment of the Court of First Instance of 15 July 1993 in Joined Cases T-17/90, T-28/91 and T-17/92, Camara Alloisio and Others v Commission [1993] ECR II-841, paragraph 90)."

8.2 The original of the relevant passage in the Court's judgment reads: "However, such assessments [by the Selection Board] may be subject to review by the Court only where there is a flagrant breach of the rules governing the Selection Board's work" (emphasis added).

8.3 The complainant considered that EPSO had "deliberately misquoted" this passage to give him the impression that no control could be exercised over the Selection Board in the absence of a "flagrant breach of the rules governing its work".

8.4 Given that this issue appeared to belong to the complainant's allegation concerning the way in which EPSO had dealt with his complaint and did not appear to constitute a separate allegation, it was not among the allegations on which the Ombudsman asked EPSO to submit an opinion.

8.5 In his observations, the complainant noted that EPSO had failed to reply to this issue. Therefore, the Ombudsman included this issue in his request for a supplementary opinion.

8.6 In its reply to this request, EPSO did not explicitly address this issue. It stated that all the arguments which could show that the complainant's rights had been respected in full were included in its opinion on the present complaint. For that reason, it was not considered necessary to add further comments as suggested by the Ombudsman.

8.7 The complainant criticised that EPSO had not replied to all questions the Ombudsman had raised in his request for a supplementary opinion and asked the Ombudsman to draw his conclusions from this failure to respond.

8.8 The Ombudsman considers that it is good administrative practice for the institution or body concerned by a complaint to the Ombudsman to comment on all allegations the complainant raises in his complaint, particularly if they are set out individually by the Ombudsman.

8.9 In this case, EPSO has not considered it necessary to reply to the complainant's allegation concerning the alleged misquote. The Ombudsman finds this deplorable. However, since he is nevertheless able to form a view on the substance of this aspect of the complaint on the basis of the information at his disposal, he considers that there are no grounds to pursue this issue further.

8.10 First of all, it should be noted that the passage in question is not a direct quote but only a reference to the Court's judgment.

8.11 Furthermore, the alleged misquote consists in omitting the phrase "by the Court". The complainant argued that this omission gave the false impression that no administrative control could be exercised over the Selection Board in the absence of a "flagrant breach", whereas, according to him, the standard of administrative review should be higher than that of a review by the Court (point 7.1). However, as set out under point 7.4 above, the complainant did not explain according to which principle this should be the case.

8.12 Therefore, the Ombudsman considers that, as far as he can see, the omission of the phrase "by the Court" does not appear to give rise to a false impression. Therefore, the Ombudsman considers that the complainant has not established his view that EPSO "deliberately misquoted" from the judgment. He finds no maladministration in this respect.

9 EPSO's dealing with the complainant's case seen as a whole

9.1 The complainant considered that there were several issues in EPSO's dealing with his requests and complaint, each of which constituted maladministration in itself or was only just short of being maladministration. Therefore, the way EPSO dealt with his case - seen as a whole - constituted maladministration.

9.2 EPSO did not comment on this issue in its reply to the Ombudsman's request for a supplementary opinion.

9.3 The Ombudsman has examined all of the complainant's allegations and his claim in detail. The results of this examination are set out above. However, the Ombudsman fails to see in what way several aspects concerning which no maladministration was found could add up to a sum that constitutes maladministration.

9.4 Therefore, the Ombudsman considers that the complainant has not established his view that EPSO's dealing with his case - seen as a whole - constituted maladministration.

10 Conclusions

10.1 On the basis of the Ombudsman's inquiries into the present complaint, it is necessary to make the following critical remark:

EPSO's failure to notify the complainant of its decision on his complaint under Article 90(2) of the Staff Regulations in the language in which he lodged his complaint within the relevant deadline constitutes maladministration.

Given that this aspect of the case concerns procedures relating to specific events in the past and given that the complainant subsequently received the translation of the relevant decision, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The recruitment competition was initially organised by the Commission. The European Personnel Selection Office ("EPSO") subsequently took over the responsibility for the competition, and the relevant replies to the complainant were made by EPSO. The complaint was sent to EPSO for an opinion. However, the Commission and EPSO sent a joint opinion concerning this case.

(2) The original of the passage in the Court's judgment reads: "However, such assessments may be subject to review by the Court only where there is a flagrant breach of the rules governing the selection board's work (...)." (Joined Cases T-17/90, T-28/91 and T-17/92 Camara Alloisio and Others v Commission [1993] ECR II-841, paragraph 90) (emphasis added).

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

(4) In the absence of any further explanation, the Ombudsman assumes that EPSO in fact refers to the evaluation criteria established by the Selection Board.

(5) The Notice of Open Competitions COM/A/1/02 and COM/A/2/02 (published on 25 July 2002 in the Official Journal C177A) relevant in this case provides in its annex under the heading "Appeal": "You can either lodge a complaint under Article 90(2) of the Staff Regulations of Officials of the European Communities (...) or you can bring a case before [t]he Court of First Instance (...)." Under the heading "Complaint to the European Ombudsman", the annex provides: "Like all citizens of the Union, you can make a complaint to [t]he European Ombudsman (...)."