Decision of the European Ombudsman closing his inquiry into complaint 14/2010/ANA against the European Personnel Selection Office
Case 14/2010/ANA - Opened on Tuesday | 16 February 2010 - Decision on Wednesday | 18 May 2011 - Institution concerned European Personnel Selection Office (Critical remark )
The background to the complaint
1. This case is about the statement of reasons which the European Personnel Selection Office (EPSO) provides candidates in open competitions. The complainant, a Greek national, took part in Open Competition EPSO/AD/129/08 – Lawyer-Linguists having Greek as their main language. The competition was divided into two channels: a 'Court of Justice' channel and a 'Parliament/Council' channel. The complainant chose the 'Parliament/Council' channel, for which the competition envisaged 12 successful candidates.
2. On 13 May 2009, EPSO informed the complainant that she had obtained the following marks: for written test a): 21/40 (pass mark 20) and for written test b): 15/40 (pass mark 20). Her written test c) was not marked because she did not attain a pass mark in written test b). Written test b) consisted of a translation into Greek, without a dictionary, of a legal text in English.
3. By letter dated 30 May 2009, the complainant applied for a review of both written tests a) and b). The complainant argued that the marks she obtained did not correspond to her performance, and that she should have attained much higher marks. She expressed doubt that the marks awarded were her own and contended that, even if the marks awarded were correct, it would be impossible for her to understand the errors she made, the method with which her marks were calculated, and the guidelines which were followed by the Selection Board when assessing her translation. The complainant requested the Selection Board (a) to have her answers in both written tests reviewed by a different Selection Board, (b) to send her copies of her answers and the individual evaluation sheets, and (c) to explain her individual assessment in light of the evaluation criteria.
4. By letter dated 22 June 2009, EPSO replied that the Selection Board had re-examined the complainant's written test b) and held that there was no reason to change its original assessment. The Selection Board explained that it followed a single evaluation system for all candidates, according to which marks were deducted depending on the number and gravity of errors made. The Selection Board further held that the complainant was unsuccessful because of translation errors, weaknesses and inaccuracies in the use of legal terminology and her inadequate understanding of the original text. The Selection Board further noted that the complainant made spelling mistakes, and several words and phrases from the text in the source language were omitted in the translation. As a result, the Selection Board held that it was unnecessary to review written test a). EPSO confirmed its decision not to admit the complainant to the next stage of the competition.
5. By e-mail of 29 June 2009, the complainant stated that, first, EPSO's reference to "translation errors, weaknesses, inaccuracies and spelling mistakes" was vague and could be sent mechanically to all unsuccessful applicants. The complainant sought to be informed of her errors, weaknesses, inaccuracies and spelling mistakes and the gravity of each of them. Moreover, the complainant argued that this detailed explanation was necessary because the meaning of the concepts 'error' and 'inaccuracy', as well as the gravity of each one of them had not been made public in advance.
6. Furthermore, the complainant protested that, despite her request, she did not receive a copy of her answers and a copy of the correct answers. Likewise, the complainant argued that she could not, at that stage, contest the assertion that the Selection Board followed a single evaluation system for all candidates because she had not received the information requested. The candidates were not informed about the evaluation system, at least in general terms, which would have allowed them to know the gravity of any errors or omissions, or the extent to which more than one answer to any given question would be acceptable. In conclusion, the complainant requested the detailed reasoning of the Selection Board's decision to exclude her from the next stages of the competition, and a copy of all the documents she requested.
7. By e-mail of 30 June 2009, EPSO replied to the complainant and attached a copy of her written test b) and the evaluation sheet for that test. Owing to the confidential nature of the Selection Board's proceedings, EPSO stated that it was not possible for candidates to have access to the correct answers.
8. According to the evaluation sheet, in order to evaluate the candidates' performance, the Selection Board based itself on the following criteria, which were provided in the first column of the evaluation sheet:
"1. Legal aspects
b) General Understanding
2. Linguistic aspect
a) Source language: Logical comprehension, syntax, vocabulary
b) Target language: Overall quality of expression and vocabulary. Grammar, syntax, spelling, punctuation."
The second column of the evaluation sheet was headed "Comments". In the text box provided, the evaluation sheet contained the following hand-written comments: "Serious mistakes in terminology and spelling mistakes", "Omission of several words/phrases", "Insufficient general understanding."
9. On 1 July 2009, the complainant e-mailed EPSO and complained that, although she had received a copy of her written test b), she could not identify the mistakes she made or how these mistakes were evaluated. At the same time, she pointed out that she had not received a copy of written test a). As regards EPSO's refusal to hand her a copy of the correct answers, the complainant rejected the confidentiality argument and stated that "the correct answers in a translation competition cannot be considered confidential since the text to be translated is unique and will never be chosen again in the future." The complainant expressed her wish to receive a full reply as soon as possible.
10. By letter dated 23 July 2009, EPSO replied quoting the Selection Board which, in turn, decided not to change its original evaluation. EPSO further stated that, in accordance with settled case-law, it was not obliged to inform candidates of the evaluation method.
11. On 3 December 2009, the complainant turned to the European Ombudsman.
The subject matter of the inquiry
12. The Ombudsman opened an inquiry into the complainant's allegation that EPSO failed to provide the requested clarifications as regards the marks she was awarded, and the complainant's claim that EPSO should fully inform her about her errors, the correct answers to the test and the evaluation method used by the Selection Board.
13. In order to facilitate his inquiry into the present complaint, the Ombudsman requested EPSO to clarify certain specific issues. He addressed the following questions to EPSO:
(1) Given the special nature of the competition (lawyer-linguists) and more specifically the written test at issue (translation), did the Selection Board provide a model 'correct translation' to the Selection Board members assessing written test b)?
(2) If no model translation was given, have the assessors been given any marking and evaluation criteria? More specifically, have there been instructions to the Selection Board concerning the correctness, adequacy, structure etc. of the candidates' replies in written test b)? In addition, have there been any guidelines in relation to the gravity of errors vis-à-vis omissions, or the possibility of more than one correct answer to any given question/part of the test?
(3) EPSO provided the complainant with an evaluation sheet and, therefore, the scope of the inquiry should not extend to the argument that EPSO has not done so. However, it is unclear whether the person signing the evaluation sheet does so in their capacity as member of the Selection Board or their capacity as assessor of the written test. EPSO is further requested to clarify how the complainant's assessment on the evaluation sheet matches to the evaluation and marking criteria and what is the breakdown of the marks awarded against the said criteria.
(4) EPSO refused to provide the 'correct answers' to written test b) on the ground that they are covered by the confidentiality of the Selection Board's proceedings. How does the disclosure of a model translation or correction guidelines affect the confidentiality of the Selection Board's proceedings?
(5) In any event, how is the interest of confidentiality balanced against the right to good administration protected under Article 41 of the EU Charter of Fundamental Rights and, more specifically, the right of an individual to have access to their file and the obligation of the administration to give reasons for its decisions?
14. As regards the complainant's allegation that EPSO failed accurately to assess her written tests and related claim that EPSO should re-examine her written tests, the Ombudsman did not consider it necessary to carry out inquiries into that part of the complaint. He reached his conclusion by making a preliminary finding that, like the Union courts, the Ombudsman may not substitute the judgement of a Selection Board with his own and inquire into the substance of the evaluation unless there is a manifest error of assessment. In this regard, the complainant argued that her performance should have been awarded marks which correspond to at least "very good". The Ombudsman has previously held that, in the process of determining whether there is a manifest error of assessment, the complainant's self-assessment cannot be determinative. This position is also in accordance with the Court of Justice's case-law. No further information has been submitted to the Ombudsman to suggest that there has been a 'manifest error' in the assessment of the complainant's written examination b).
15. On 16 February 2010, the Ombudsman invited EPSO to comment on the complainant's allegation and claim. On 11 June 2010, EPSO sent its opinion which was forwarded to the complainant. On 20 July 2010, the complainant sent her observations on EPSO's opinion.
The Ombudsman's analysis and conclusions
A. EPSO's alleged failure to provide the complainant the requested clarifications as regards the marks she was awarded
Arguments presented to the Ombudsman
16. In support of this allegation, the complainant argued that EPSO failed to inform her of the errors and inaccuracies she committed, as well as the gravity of those errors in the assessment of her written test b). In this respect, the complainant only received a copy of her written test b) without any corrections, notes or remarks. Moreover, the complainant argued that, despite her request, EPSO did not provide her a copy of the correct answers to the test. In relation to the latter, the complainant further argued that EPSO is not entitled to base its refusal to provide the correct answers on the premise of confidentiality.
17. In its opinion, EPSO first clarified that the Selection Board did not draw up a 'model translation' because there was no single 'good' translation of written test b). Next, EPSO outlined the procedure followed by the Selection Board in the assessment of written test b). As regards the evaluation criteria, the Selection Board evaluated the translation in terms of both the legal (terminology and general comprehension) and linguistic aspects of the translation. In order to evaluate the linguistic quality of the translation, the Selection Board examined the following points: logical comprehension, syntax, vocabulary, general quality of expression, errors of grammar, syntax, spelling and punctuation. Errors of translation, omitted words/phrases, misunderstandings or inaccuracies were penalised according to their seriousness.
18. On the basis of instructions given by the Selection Board, two assessors marked the tests individually. After examining the markers' comments, the Selection Board set out the results for each test. According to EPSO, the complainant's assessment was based on the above evaluation criteria, and this was reflected on the evaluation sheet. In evaluating test (b), which consisted of a translation into Greek of a legal text, the Selection Board did not award 'sub-marks' by criterion. Instead, it decided, in addition to the overall mark awarded (15/40) and the various criteria pre-established by the Selection Board, to comment on the errors by noting: "Serious mistakes in terminology and spelling mistakes", "Omission of several words/phrases", "Insufficient general understanding."
19. As regards the Ombudsman's question on the relationship between the principle of transparency, in light of the Charter of Fundamental Rights of the European Union, and the secrecy of the proceedings of a Selection Board, EPSO invoked the case-law, in accordance with which candidates for a competition cannot invoke the general principle of transparency to challenge the applicability of Article 6 of Annex III to the Staff Regulations concerning the confidentiality of Selection Board proceedings.
20. EPSO then commented on its obligation to give reasons and argued that the case-law recognises that the obligation to give reasons for an individual decision is in order to provide the person concerned with the information necessary to determine whether or not the decision is unfounded. With regard to decisions by a Selection Board, however, the obligation to give reasons must be reconciled with maintaining the confidentiality of its proceedings, which excludes the disclosure of the positions adopted by the Selection Board members, and of any elements relating to personal or comparative assessments of candidates. These assessments were reflected in the marks awarded to candidates by the Selection Board, which constituted an adequate statement of reasons. Given the wide discretion a Selection Board has, it cannot be obliged, when providing reasons for a candidate's failing a test, to provide details of candidates' answers which were considered unsatisfactory, or to explain why they were so judged.
21. In the circumstances here concerned, EPSO stated that it informed the complainant of the marks she obtained in the two written tests and provided a copy of the evaluation sheet for her written test (b). Moreover, by its letter dated 22 June 2009, EPSO informed the complainant that the Selection Board had noted a number of errors and omissions in her test (b) which justified her failing the test. These included a number of translation errors, some shortcomings and uncertainty with regard to legal terms, and an insufficient understanding of the original text. There were also spelling mistakes, and some points in the original text had not been translated.
22. In light of the above, EPSO argued that it fully complied with the obligation to give reasons for the Selection Board's decision. EPSO further underlined that it was not the Selection Board's responsibility to point out to candidates the seriousness of their errors, as is the case with school examinations. As laid down in the provisions of the competition notice, candidates have a specific right of access to certain information concerning them directly and individually, taking account of the confidential nature of Selection Board proceedings under the Staff Regulations, and in compliance with the rules on the protection of individuals with regard to the processing of personal data.
23. In her observations, the complainant argued that EPSO's opinion was unsatisfactory both in relation to the questions asked by the Ombudsman and the clarification of the marks the complainant was awarded for her written test b).
24. By means of preliminary observations, the complainant noted that EPSO's refusal to provide detailed reasons for the marks awarded implies, if not a manifest error of assessment, certainly a probable error of assessment. In this regard, the complainant referred to question (3) in the Ombudsman's letter opening an inquiry into the present complaint, in which he asked EPSO "to clarify how the complainant's assessment on the evaluation sheet matches to the evaluation and marking criteria and what is the breakdown of the marks awarded against the said criteria." The complainant argued that, in its opinion, EPSO responded in a general and evasive manner.
25. More specifically, the complainant argued that, in its opinion, EPSO stated that the Selection Board a) "evaluated the legal and linguistic aspects", b) "examined the ... logical comprehension, syntax, vocabulary...", and c) "two assessors marked the tests". In essence, EPSO repeated the examination guidelines but did not mention anything about the gravity and breakdown of the evaluation criteria and how these applied to the case in hand. According to the complainant, EPSO's refusal to provide this information on the ground of confidentiality cannot be accepted. The confidentiality only applies to the Selection Board deliberations at the time they are taking place and only concerns third parties, not the candidates in an open competition.
26. As regards the confidentiality of Selection Board proceedings, the complainant argued that the concept of confidentiality is not something vague and sacred which can be invoked to justify any of EPSO's actions. In this regard, the complainant questioned EPSO's refusal to provide the comments made by the individual assessors. Moreover, the complainant questioned the usefulness of disclosing the evaluation sheet, given that it provides no useful information and contains vague expressions which could be used in the evaluation sheets of all rejected candidates.
27. As regards EPSO's argument that it is not obliged to provide any corrections made on the written examination, the complainant argued that access to such corrections either on the written examination or on a separate document should be made possible so that a candidate does not have any doubts as to their meaning.
28. According to the complainant, the Selection Board's statement that it marked on the basis of a general impression of a written examination, without providing a breakdown of the marks in light of the specific evaluation criteria and sub-criteria, casts doubt on the lawfulness of the entire competition. If success in these competitions is judged on the basis of a single mark, or perhaps less than a mark, the complainant wondered what would differentiate a mark of 14/40 from a mark of 15/40 or 16/40. Unless the marks awarded are matched to the evaluation criteria, which are set in advance, the competition lacks transparency. The complainant found is difficult to understand why "Serious mistakes in terminology and spelling mistakes ... insufficient general understanding" correspond to 15/40 and not to 18/40, 25/40 or 5/40. In the complainant's view, the most important question is not the manifest error of assessment by the Selection Board but the lawfulness of the competition as such.
29. As regards the broad discretion enjoyed by the Selection Board, the complainant argued that this constitutes another vague concept which, in any event, does not extend to acting in an arbitrary manner. In fact, the complainant argued that, by failing to comply with transparency in the application of the evaluation criteria and to grant access to the corrections on the candidate's written test, EPSO acted in an arbitrary manner.
30. Finally, the complainant objected to EPSO's broad understanding of confidentiality of Selection Board proceedings. In her view, the confidentiality of the Selection Board proceedings, as established by the Court of Justice's case-law, does not cover "both the results of the competition and the evaluation method and the specific evaluation criteria which were applied by the Selection Board and their gravity and the disclosure to the candidate of the errors in his examination."
31. By way of conclusion, the complainant noted that the special case of translation, which does not have a single way of marking, but depends on factors such the general meaning of the text, warrants a different treatment to that of multiple choice tests.
The Ombudsman's assessment
32. The Ombudsman wishes to point out that any request for additional information in relation to a candidate's performance in an open competition organised by EPSO is subject to complex considerations. Within the context of the duty to state reasons, EPSO needs to reconcile the secrecy of the proceedings of the Selection Board with the requirements of transparency.
33. On the one hand, the Court of Justice has given far-reaching content to the concept of confidentiality of Selection Board proceedings by stating that the marking criteria form an integral part of the comparative assessments of the candidates' respective merits and are therefore covered by the secrecy of the proceedings in the same way as the Selection Board's assessments. The marks awarded to a candidate are the expression of value judgments made concerning each of them and the communication of the marks obtained constitutes an adequate statement of the reasons on which the Board's decisions are based.
34. On the other hand, the Ombudsman consistently highlighted the importance of the fundamental principle of transparency enshrined in Article 1 of the Treaty on European Union and Article 15(1) of the Treaty on the Functioning of the European Union. Today, it is widely accepted that transparency in the decision making process strengthens the democratic nature of the institutions and enhances public confidence in European administration.
35. Even before the entry into force of the Treaty of Lisbon, which strengthened the principle of transparency and endowed it with renewed dynamism, the Ombudsman had emphasised to EPSO that the needs for greater openness in recruitment procedures are much more wide-ranging than a general openness agenda, however important the latter may be. Such needs include important specific concerns regarding legal protection, equality, proportionality and the Union's interest in recruiting officials of the highest standard of ability, efficiency and integrity.
36. In this regard, following the Ombudsman's own-initiative inquiry OI/5/2005/PB on transparency in EU recruitment procedures, EPSO undertook the obligation to propose to the Selection Boards that, in the case of written tests, they use a model evaluation sheet, obtainable by candidates upon request, which contains (a) the evaluation criteria set out in the published notices of competition (including the various elements eventually evaluated by the Board for each criterion) and the level of performance attained (ranging from excellent to insufficient), and (b) in addition to the global mark, the partial marks awarded by the Board for each criterion specified in the notice of competition.
37. Before proceeding with the assessment of the present allegation in light of the above considerations, the Ombudsman notes that EPSO provided the complainant with a copy of her evaluation sheet, which identified the competition criteria and sub-criteria. Moreover, EPSO provided the complainant, in addition to the overall mark awarded (15/40), comments relating to the evaluation of the level of performance attained in light of the competition criteria. In response to the Ombudsman's question in his letter opening an inquiry into the present complaint, EPSO stated that there were no partial marks awarded for each sub-criterion.
38. In her observations, the complainant argued that EPSO did not mention anything in its opinion about the gravity and breakdown of the evaluation criteria and how these applied to the case at hand. Unless the marks awarded are matched to the evaluation criteria, which are set in advance, the competition lacks transparency. Moreover, the complainant questioned EPSO's refusal to provide the comments made by the individual assessors and the usefulness of disclosing the evaluation sheet given that it provides no useful information, but rather vague expressions which could be equally used in the evaluation sheets of all rejected candidates.
39. The Ombudsman regrets the fact that a breakdown of the marks, in light of the evaluation sub-criteria established by the Selection Board, was not provided on the evaluation sheet. In assessing the impact of this omission, within the framework of the statement of reasons which the present inquiry concerns, the Ombudsman must respond to the question whether the absence of partial/breakdown marks precludes the complainant from being in a position to determine whether EPSO's decision to exclude her from the next stage in the competition is founded.
40. In this regard, the Ombudsman notes that the clarification offered to a candidate concerning his/her marks is not formative, but should simply be limited to providing the reasons for which that candidate was excluded from the next step of the competition. Having regard to the fact that the competition in question is an open competition for lawyer-linguists, it must at first be ascertained whether the candidate for the post of lawyer-linguist received sufficient information concerning the reasons for his/her exclusion from the competition. The Ombudsman considers that statements such as "serious mistakes, insufficient understanding etc." do not suffice to explain why a candidate was considered unsuitable for carrying out the tasks of a lawyer-linguist in light of the competition's evaluation criteria and sub-criteria.
41. Moreover, the clarifications requested by the complainant serve an additional perspective, as mentioned above, to promote the degree of transparency which citizens increasingly expect from the Union's institutions and thereby entrench citizens' confidence in the work of the European institutions when they take decisions which affect them individually in such a fundamental manner. The complainant's observations illustrate that, without prejudice to the question whether EPSO observed its obligations in light of the Court's case-law and its undertakings towards the Ombudsman, the Union's institutions, offices, bodies or agencies must strive to build a bond of trust in their relations with the citizens of the Union.
42. Taking stock of the above considerations, and in light of the arguments presented to him, the Ombudsman considers that the evaluation sheet EPSO provided the complainant with was not satisfactory.
43. Having regard to EPSO's undertakings towards the Ombudsman analysed above, the Ombudsman considers that EPSO ought to have instructed the Selection Board to draft an evaluation sheet for the competition in question containing (a) additional information about the evaluation criteria and sub-criteria used by the Selection Board in its assessment, (b) the candidates' level of performance in light of these criteria and sub-criteria (ranging from excellent to insufficient) and (c) a breakdown of the candidates' marks against each criterion and sub-criterion.
44. In the competition in question, EPSO should, as a minimum, have broken down the marks awarded into the sub-criteria of (a) Terminology and (b) General Understanding in relation to the 'Legal aspects' evaluation criterion and the sub-criteria of (a) the source language and (b) the target language in relation to the 'Linguistic aspects' evaluation criterion. This evaluation sheet should have been made available to candidates upon request.
45. By failing to provide this information on the evaluation sheet, EPSO failed to observe its undertakings towards the Ombudsman in this regard. Moreover, EPSO's approach in the present case offers a disservice to the aforementioned objectives, which a statement of reasons clarifying an EPSO decision is intended to attain. In light of the above, the Ombudsman concludes that EPSO failed to provide the complainant the requested clarifications. This constitutes maladministration.
46. The complainant claims that EPSO should fully inform her about her errors, the correct answers to the test and the evaluation method used by the Selection Board. Having regard to the Court's case-law on the secrecy of Selection Board proceedings, the complainant's claim cannot be sustained.
47. The Ombudsman notes that the instance of maladministration here identified relates to specific events in the past. Consequently, the Ombudsman does not consider it appropriate to continue his inquiry, or to pursue a friendly settlement of the matter. He therefore closes the inquiry by making a critical remark at the end of this decision.
On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:
EPSO failed to take steps to ensure that the Selection Board provided a breakdown of the marks on the final evaluation sheet for the test here concerned. This was an instance of maladministration.
The complainant and EPSO will be informed of this decision.
P. Nikiforos Diamandouros
Done in Strasbourg on 18 May 2011
 Notice of Open Competition EPSO/AD/129/08, OJ 2008 C 124A, p. 1.
 Article 6 of Annex III of the Staff Regulations provides "The proceedings of the Selection Board shall be secret." The Staff Regulations are available on http://ec.europa.eu/civil_service/docs/toc100_en.pdf
 The Civil Service Tribunal held in Case F-74/07 Meierhofer v Commission, judgment of 14 October 2008, not yet reported, paragraph 40 (emphasis added): "Consequently, even though the outcome of reconciling the obligation to state reasons and observance of the principle of the secrecy of the Selection Board’s proceedings, in particular as to whether the communication of a single eliminatory individual mark to the candidate eliminated in the oral phase satisfies that obligation, is more often than not in favour of the principle of the secrecy of the Selection Board’s proceedings, it has to be recognised that the position may be otherwise when special circumstances exist…"
 In this regard, Case F-74/07 Meierhofer v Commission, judgment of 14 October 2008, not yet reported, paragraph 40: "... Such a conclusion does not in any way run counter to the principle of observance of the secrecy of the Selection Board’s proceedings, laid down in Article 6 of Annex III to the Staff Regulations, and is, moreover, in line with the recent development of Community case-law in favour of openness."
 Case T-294/03 Gibault v Commission  ECR II-635, paragraph 41. See also, Decision of the European Ombudsman on complaint 2589/2006/BU against the European Personnel Selection Office, paragraph 1.4.
 Decision of the European Ombudsman closing the inquiry on complaint 32/2007/JF against the European Personnel Selection Office, paragraph 34.
 Case T-53/00 Angioli v Commission  ECR II-73, paragraph 94.
 Case T-72/01 Pyres v Commission  ECR II-861, paragraphs 70-71.
 Case C-254/95 P European Parliament v Angelo Innamorati  ECR I-3423, paragraphs 28-31.
 "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen."
 "In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible."
 Decision of the European Ombudsman on own-initiative inquiry OI/4/2007/(ID)MHZ concerning EPSO, paragraph 32.
 Draft recommendation to the European Personnel Selection Office concerning own-initiative inquiry OI/5/2005/PB on transparency in EU recruitment procedures, paragraph 1.8.
 Decision of the European Ombudsman closing his own-initiative inquiry OI/5/2005/PB concerning the European Personnel Selection Office, paragraph 23.
 Case C-254/95 P European Parliament v Angelo Innamorati  ECR I-3423, paragraphs 28-31.