Strasbourg, 7 December 2006

Dear Mr X,

On 3 May 2005, you made a complaint to the European Ombudsman concerning Open Competition EPSO/LA/17/04. In accordance with your request of 17 May 2005, your complaint has been treated confidentially.

On 6 June 2005, I forwarded the complaint to the Director of the European Personnel Selection Office ("EPSO") and asked EPSO to submit an opinion. EPSO sent its opinion on 20 September 2005. I forwarded it to you with an invitation to make observations. No observations have been received from you.

By letter of 8 June 2006, I informed you that I was in possession of all the elements necessary for taking a decision on your complaint and that further inquiries were thus not necessary.

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

THE COMPLAINT

The complainant applied for Open Competition EPSO/LA/17/04, organised by EPSO with the purpose of constituting a reserve pool from which to recruit assistant translators having German as their main language(1).

Given that the complainant obtained pass marks in pre-selection tests a) and b) and was among the candidates with the 270 highest marks, the Selection Board corrected and marked his written test c), which consisted of a translation (using a non-electronic dictionary) of a general text approximately 45 lines long relating to the activities of the European Union, from the language chosen for the pre-selection tests into the main language.

By letter of 25 April 2005, EPSO informed the complainant that the mark for his written test c) was 15 points out of 40 and thus failed to reach the pass mark of 20 (point B.2 of the Notice of Competition).

By e-mail of 26 April 2005, the complainant asked EPSO whether it was possible to obtain a copy of his test c) showing the corrections.

By e-mail of 27 April 2005, EPSO answered that, along with the principle of access to documents and transparency, it also respects the principle of the secrecy of the Selection Board's works. EPSO added that, following an approach recommended by the European Ombudsman, it gives candidates access to their original tests and to the evaluation sheet filled in by the Board. EPSO attached a copy of the complainant's original (uncorrected) test c) and a copy of the evaluation sheet concerning that test. EPSO further referred to Article 6 of Annex III to the Staff Regulations according to which the Board's work is secret, and added that the Court of Justice specifies that only the above two documents may be transmitted to the candidates. EPSO concluded that the correction of the tests forms part of the secret, independent and impartial work of the Board and thus cannot be divulged(2). Moreover, the Council Regulation regarding access to documents concerns documents of general interest and therefore cannot be applied to tests in a Competition.

The evaluation sheet provided to the complainant by EPSO consisted, in addition to his secret number and his mark for the test c), of four boxes, each of which contained what the heading for these boxes described as a "Bewertung" (evaluation) that corresponded to a certain range of points. One of these boxes could be ticked, according to the Selection Board's assessment. For test c) which the complainant had failed, the lowest box (0 - 19 points) had been ticked. The text in that box was the following: "Unzureichende Übersetzung. Viele Schwächen. Unter tatsächlichen Arbeitsbedingungen wäre eine sehr aufwändige Überarbeitung notwendig." (Insufficient translation. Many weaknesses. In real working conditions, very exhaustive re-working would be necessary.).

On 3 May 2005 , the complainant lodged a complaint with the Ombudsman. He alleged that the evaluation sheet is too general, and claimed that EPSO should provide him with the corrected version of his test c).

In support of his allegation, the complainant stated that EPSO should enable him to understand what his weaknesses were. He added that the standard evaluation covering everything between 0 and 19 points is not satisfactory at all.

THE INQUIRY

The opinion of EPSO

The Ombudsman forwarded the complaint to EPSO and asked it to submit an opinion on the complainant's allegation and claim.

EPSO's opinion can be summarised as follows:

EPSO first provided a summary of the facts of the case, and referred to the relevant provisions of the Notice of Competition and to its letter to the complainant of 25 April 2005.

EPSO went on to say that, in its letter of 25 April 2005, it had informed the complainant of the results he obtained in pre-selection tests a) and b), as well as in written test c), in which he failed to reach the pass mark. In the same letter, the complainant was also informed that the written translation tests had been corrected in an anonymous manner by at least two specialised markers having German as their main language and that the corrections had been made on the basis of the Selection Board's instructions. The letter also stated that, for each error or omission in the translation, a certain number of points was deducted, the exact number depending on the gravity of the error or omission involved.

As regards the complaint's allegation and claim, EPSO considered it useful to describe the procedure applied in the correction of translation tests. Accordingly, EPSO stated that the Selection Board turned to markers in their capacity as examiners with an advisory role ("correcteurs en qualité d'assesseurs à voix consultative") in conformity with Article 3 Paragraph 3 of Annex III to the Staff Regulations. In order to assess the quality of the translations, the Board had established certain correction criteria and drawn up a list of possible errors: errors of meaning, omissions, additions, errors in grammar, in vocabulary, in spelling, in style, in punctuation or in clarity ("erreurs de sens, omissions, ajouts, erreurs de grammaire, de lexique, d'orthographe, de style, de ponctuation ou de clarté"). These errors were penalised with a certain number of points depending on the gravity of the error. On the other hand, the Board could also have awarded positive points in case of a very good-quality translation. In order to guide the markers in their work, the Board provided them with its instructions and with the correction criteria which it had established before the tests.

In fulfilling his or her mission, each marker uses a sheet to communicate to the Selection Board his or her remarks and proposals for marking each of the tests. These sheets represent opinions intended for the Board's internal use during its deliberations, and do not constitute a judgment of the Board; for this reason, they are not divulged.

After taking note of the markers' remarks, the Selection Board establishes the final mark and puts it down on the evaluation sheet which it then signs. It is this sheet which, if a candidate so requests, is provided to the candidate. The Board does not make any annotation on the copy of the candidate's test, and there is no rule obliging a Board to do so. In this regard, EPSO referred to the judgment of the Court of First Instance in Case T-19/03(3), according to which the corrections need not appear on the copy of the candidate's test.

EPSO added that, by establishing the criteria which are applied in an equal manner during each correction of a test, the Selection Board is in a position to carry out a comparative examination of all the candidates' performances, in a fair and homogeneous manner and with an eye to identifying the best amongst them.

EPSO further referred to a commitment made by the Commission's former President, Mr Romano Prodi, in his letter to the Ombudsman of 7 December 1999, to provide additional information to candidates who request it, by using an evaluation sheet. Concerning the complainant's test c), EPSO basically repeated the information contained in the evaluation sheet, that is, that the Selection Board found his translation insufficient, with many weaknesses, and concluded that in real working conditions, the translation would require too many corrections. EPSO expressed the hope that its comments on the present complaint would enable the complainant better to understand the working method used by the Board in the correction of his test and in establishing of his results.

As regards the complainant's claim, EPSO took the position that, in conformity with Article 6 of Annex III to the Staff Regulations, the copies of the documents attached to its e-mail to the complainant of 27 April 2005 were the only ones that could be transmitted to candidates. EPSO finally noted that the secret character of the Selection Board's work and deliberations does not allow it to provide the complainant with additional information.

EPSO also recalled that, according to the case-law concerning this matter(4), and as far as decisions taken by a Selection Board in a Competition are concerned, the mark itself constitutes a sufficient statement of reasons for an evaluation made by the Board. EPSO concluded that a Board is by no means obliged to explain in what way a candidate's performance was not sufficient or to state more detailed reasons for an evaluation made.

The complainant's observations

The complainant did not submit any observations.

THE DECISION

1.1 The complainant participated in Open Competition EPSO/LA/17/04 for assistant translators having German as their main language. He failed written test c) and asked EPSO for a copy of his corrected test. In reply, EPSO sent him a copy of his original (uncorrected) test c) as well as a copy of the Selection Board's evaluation sheet concerning that test.

In his complaint to the Ombudsman, the complainant alleged that the evaluation sheet was too general, and claimed that EPSO should provide him with the corrected version of his test c).

In support of his allegation, the complainant stated that EPSO should enable him to understand what his weaknesses were.

1.2 In its opinion, EPSO clarified in detail the procedure followed in correcting the translation tests. In particular, EPSO pointed out that there is no rule obliging a Selection Board to make annotations on the copy of the candidate's test, and referred to the relevant case-law(5).

EPSO also referred to a commitment made, on 7 December 1999, by the Commission's former President to the Ombudsman(6) to provide additional information to candidates who request it, by using an evaluation sheet. EPSO recalled that, according to the case-law, the mark itself constitutes a sufficient statement of reasons for an evaluation made by the Selection Board, and that a Board is by no means obliged to explain in what way a candidate's performance was not sufficient or to state more detailed reasons for an evaluation made.

As regards the complainant's claim, EPSO took the position that, in conformity with Article 6 of Annex III to the Staff Regulations, the copies of the documents attached to its e-mail of 27 April 2005 to the complainant were the only ones that could be transmitted to candidates. EPSO further noted that the secret character of the Selection Board's work and deliberations does not allow it to provide the complainant with additional information.

1.3 The Ombudsman wishes to emphasise that, as also pointed out by EPSO, the Court of First Instance has held that a Selection Board is under no obligation to write its comments relating to the assessment of a candidate on the candidate's test paper itself. The Ombudsman has referred to this point in his previous decisions(7).

1.4 Furthermore, the Ombudsman notes that this 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.

1.5 This issue has already been addressed in the Ombudsman's inquiry into complaint 674/2004/(MF)PB(8). In his draft recommendation in that case, the Ombudsman concluded that, where the evaluation sheet prepared by the Selection 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 candidate's paper, without, however, imposing an unreasonable administrative burden on Boards(9).

1.6 The Ombudsman notes, however, that, in the present case, the Selection Board's evaluation sheet concerning the complainant's test c), which was provided by EPSO, does not contain any of the above information.

It should be noted, in this regard, that the complainant wished to know his errors in the translation test and not possible errors which could be identified in any candidate's test.

1.7 Moreover, the Ombudsman notes that neither EPSO's e-mail of 27 April 2005 to the complainant, nor EPSO's opinion on the present complaint contain any information on the errors or weaknesses identified by the Selection Board in the complainant's test c), not even on the types of the errors.

1.8 In addition, the Ombudsman notes that EPSO made clear in its opinion that it refuses to provide any further information in this regard. The Ombudsman also notes that EPSO has neither argued that the provision of the above information would entail an unreasonable administrative burden nor indicated any other valid reasons for its failure to give this information to the complainant. In light of EPSO's position both in case 674/2004/(MF)PB and its opinion on the present complaint, the Ombudsman considers that there is no reasonable prospect that EPSO would accept a friendly solution or react positively to a draft recommendation in the present case. Therefore, the Ombudsman will close the case with a critical remark. However, the Ombudsman will consider whether the issue dealt with in this case could usefully be included in his ongoing own-initiative inquiry on access to the evaluation criteria established by Selection Boards for written examinations (OI/5/2005/PB). The Ombudsman might also consider whether it would be relevant to open a separate own-initiative inquiry.

1.9 In light of the above, the Ombudsman considers that EPSO's failure to provide the complainant with information on the types, the seriousness and the extent of the errors or weaknesses identified by the Selection Board in his test (without, however, imposing an unreasonable administrative burden on the Board), was an instance of maladministration, and a critical remark will be made below.

2 Conclusion

On the basis of the Ombudsman's inquiry into this case and also on the basis of the Ombudsman's findings in case 674/2004/(MF)PB, which is similar to the present one, it is necessary to make the following critical remark:

As stated in his decision on complaint 674/2004/(MF)PB, the Ombudsman considers that "[p]roviding 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 purpose of providing a candidate with a copy of his or her marked examination paper, as indicated in the Ombudsman's special report of 18 October 1999 to the European Parliament, which was accepted by the European Commission on 7 December 1999. 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 concerning the complainant's test c) did not contain any of the above information. Moreover, in its opinion, EPSO also failed to provide such information. This was an instance of maladministration.

For the reasons stated in point 1.8 above, the Ombudsman closes the case with the above critical remark.

The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2004 C 37 A, p. 1.

(2) "La correction des épreuves fait partie du travail confidentiel, indépendant et impartial du jury et ne peut donc être divulguée."

(3) Case T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 61.

(4) The Ombudsman understands that EPSO refers to the case-law cited in Case T-294/03 Gibault v Commission, judgment of 31 May 2005, not yet reported, paragraph 39.

(5) Case T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 61.

(6) This letter followed the Ombudsman's special report to the European Parliament of 18 October 1999 concerning the own-initiative inquiry into the secrecy which forms part of the Commission’s recruitment procedures (OI/1004/97/PD). The special report can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).

(7) See Case T-19/03 Case T-19/03 Konstantopoulou v Court of Justice, cited above, paragraph 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).

(8) The decision on this complaint can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).

(9) 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 Selection 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. H e also took the view that it was not appropriate to submit a special report to the European Parliament on that same issue.