Decision of the European Ombudsman on complaint 1689/2006/JF against the European Personnel Selection Office

Strasbourg, 30 July 2007

Dear Mr B.,

On 10 March 2006, you submitted a complaint to the European Ombudsman (case 767/2006/JF) against the European Personnel Selection Office ("EPSO") concerning Open Competition EPSO/AD/32/05 to establish a reserve pool from which to recruit lawyer-linguists (AD6) having Portuguese as their main language(1).

The Ombudsman considered that complaint inadmissible on the basis of Article 2(4) of his Statute, which requires that a complaint should be preceded by appropriate prior administrative approaches to the institution.

On 6 May 2006, you wrote to the Ombudsman again and enclosed a copy of EPSO's reply to your prior administrative approaches, which was dated 12 April 2006. Your letter of 3 May 2006 was registered as a new complaint (present case 1689/2006/JF).

On 23 June 2006, I invited the Director of EPSO to submit an opinion on your complaint 1689/2006/JF. On 24 July 2006, I received EPSO's opinion in French and on 10 August 2006, its translation into Portuguese, which I forwarded to you with an invitation to make observations. On 6 November 2006, I received your observations.

On 21 November 2006, my services sent EPSO a request, by telephone, for copies of tests (a) and (b) of Open Competition EPSO/AD/32/05. On 22 November 2006, my services received, by e-mail, the requested documents from EPSO.

On 13 December 2006, I asked EPSO to provide me with further information. On 29 January 2007, I received EPSO's reply in French and on 8 February 2007 its translation into Portuguese, which I forwarded to you with an invitation to make observations. On 30 March 2007, I received your observations.

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

THE COMPLAINT

According to the complainant, the facts are, in summary, as follows.

The complainant sat the written legal translation tests of Open Competition EPSO/AD/32/05 to establish a reserve pool from which to recruit lawyer-linguists (AD6) having Portuguese as their main language(2).

On 2 March 2006, the Head of Unit "Selection Procedures" of the European Personnel Selection Office ("EPSO") informed the complainant by letter that he had obtained an overall mark of 24/40 in test (a)(3) and 18/40 in test (b)(4). Given that the minimum required for each of the tests was 20/40, the result obtained in test (b) was insufficient for the complainant to be admitted to the oral tests.

On 6 March 2006, the complainant addressed EPSO by e-mail and requested information regarding a possible review of his examination papers.

On 10 March 2006, before receiving EPSO's reply, the complainant requested EPSO to review his application, in accordance with Annex A of the Notice of Competition. The complainant emphasised that he had not yet had access to his written tests or the evaluation sheets and that, for this reason, based his request solely on his personal impressions about his performance in the tests. The complainant took, in summary, the view that the overall mark of 18 obtained in test (b) could not correspond to his written test (b). The complainant argued that he (i) wrote 17 pages, having finished the examination 14 minutes before the finishing time; (ii) reads, understands, uses and teaches English; (ii) obtained the mark of 19/20 in the English tests held in the context of the national selection procedure for candidates to a university degree in law; and (iv) prepared for his examination by focusing on English legal terminology. The complainant took the view that his paper might, potentially, have been confused with the one of some other candidate and requested EPSO to review his test (b) with a view to admitting him to the oral tests.

On 12 March 2006, the complainant received EPSO's reply to his e-mail of 6 March 2006. EPSO explained that, in accordance with the conditions laid down in Annex A of the Notice of Open Competition, candidates have the possibility of addressing, via EPSO, a letter to the Selection Board, and requesting a re-examination of their file. It was up to the Board, however, to decide whether an additional correction was needed or not. EPSO further explained that the tests had been corrected anonymously by at least two correctors, on the basis of the correction criteria which were previously established by the Board and were reflected in the evaluation sheet. The Board made its decision, and assigned its final mark, on the basis of these two corrections. EPSO's letter had enclosed unmarked copies of the complainant's examination papers and the related final evaluation sheets. These latter referred to three main criteria, each of which was divided into three sub-criteria.

These criteria were, in the original French: (i) Rigueur d'exécution de la traduction: (a) Restitution fidèle de l'original, (b) La traduction est-elle complète?, (c) Sens de la traduction; (ii) Compréhension de la langue source: (a) Vocabulaire, (b) Syntaxe/grammaire, (c) Terminologie juridique"; and (iii) "Maîtrise de la langue cible: (a) Orthographie/ponctuation, (b) Syntaxe/grammaire, (c) Exactitude et cohérence de la terminologie".

The evaluation sheets also contained four boxes, each of which referred to the level of classification achieved. In the original French, the levels of classification per sub-criterion were: "Très bien", "Bien", "Moyen" and "Insuffisant". The complainant's final evaluation sheets also referred to the overall marks of 24/40 ("Satisfaisant") and 18/40 ("Insuffisant"), achieved by him in, respectively, test (a) and test (b)(5).

On 12 April 2006, EPSO replied, by letter, to the complainant's request of 10 March 2006. It stated that the re-examination of the complainant's file confirmed the Selection Board's initial assessment. EPSO pointed out that in test (a), the complainant had used, on different occasions, inadequate legal terminology. It also explained that the test's final classification was not necessarily equivalent to the average of analytical evaluations and that "a specific point could be considered as particularly important (as, for instance, certain terminology faults)". As regards test (b), the Board took, again, the view that the complainant had used inadequate legal terminology. It further explained that it had also noted missing translation lines and found incoherencies.

The complainant was not satisfied with EPSO's reply and, on 6 May 2006, lodged a complaint with the European Ombudsman. The complainant took the view that EPSO should have identified clearly the alleged terminology faults or the missing lines in the translations, in addition to clarifying which were the specific points that had been considered by the Selection Board as particularly important in the context of the evaluation criteria. The complainant further took the view that EPSO should provide candidates who request re-examination with (i) a model translation, in order to ensure objectivity, and (ii) the examination paper with the closest positive mark (required in order to be admitted to the next stage of the competition) to that of the requesting candidate, which in the complainant's case would be the lowest positive mark obtained in this competition. The complainant emphasised that access to these documents should, obviously, be granted with due respect for the protection of the candidates' personal data.

In his complaint to the Ombudsman, the complainant alleged that EPSO failed to identify precisely his errors in the translations.

He claimed that EPSO should

1. provide him with the information indicated in his allegation;
2. change his classification; and
3. admit him to the following stages of the competition.

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows.

Background

The complainant applied for Open Competition EPSO/AD/32/05, published in Official Journal C 184A of 27 July 2005, and organised with a view to establishing a reserve pool from which to recruit lawyer-linguists having Portuguese as their main language (AD6).

According to title B of the Notice of Competition, the compulsory written tests were the following:

1. Test (a): translation into Portuguese, without a dictionary, of a legal text in French (language 2). This test was marked on a scale of 0 to 40 points (minimum required: 20 points);
2. Test (b): translation into Portuguese, without a dictionary, of a legal text in the language (language 3) chosen by the complainant (in this case, English) from those listed at section A.II.3.c). This test was marked on a scale of 0 to 40 points (minimum required: 20 points); and
3. Test (c): revision of a legal test translated into Portuguese from French. This was marked on a scale of 0 to 20 points.

The Notice of Competition further specified that test (b) would only be marked if the candidate obtained the pass-mark for test (a). Test (c) would only be marked if the candidate obtained the pass-mark for tests (a) and (b).

On 27 January 2006, the complainant sat the written tests.

On 2 March 2006, EPSO informed the complainant that he had obtained 24/40 in test (a) and 18/40 in test (b). Since the complainant did not obtain the pass-mark for test (b), the Selection Board could not admit him to the next stage of the Open Competition.

On 6 March 2006, the complainant asked EPSO about the possibilities of requesting a re-examination of his results.

On 7 March 2006, EPSO replied that, in accordance with the conditions laid down in Annex A of the Notice of Competition, candidates have the possibility to address, via EPSO, a letter to the Selection Board and request a re-examination of their file. It emphasised that it was up to the Board to decide whether an additional correction was needed or not. It further explained about the correction system applied to the tests, and provided the complainant with copies of his two tests, as well as copies of the evaluation sheets filled and signed by the Board.

On 10 March 2006, the complainant requested the Selection Board to re-examine his tests.

On 14 March 2006, EPSO acknowledged receipt and transmitted the complainant's request to the Selection Board.

On 12 April 2006, EPSO, in the name of the Selection Board, informed the complainant about the result of the re-examination.

EPSO's position on the complainant's allegation and claims

In the framework of a competition in which the final goal is to allow the institutions to recruit civil servants of the highest quality standards, as provided in the Staff Regulations, the candidates have the right to be treated in a fair and equitable manner. The Selection Board assesses the merits of the different candidates by comparing their respective performances. At every stage of the competition, every candidate is, without distinction, duly provided with all the useful and necessary information in the context of the competition.

A candidate who fails one stage of a competition has the right to know the reasons of his or her failure. As has been repeatedly confirmed by the case-law of the Community Courts, the communication of the quantified results is, in itself, a sufficient basis for that purpose. In addition to the communication of the quantified results, the candidate receives, if he or she so requests, a copy of the evaluation sheet completed by the Selection Board, which provides an additional explanation as regards the written test and justifies the quantified result.

The correction of the written tests respects certain rules that guarantee the impartiality and the objectivity of their evaluation. Each test is evaluated by two correctors, on the basis of photocopies of the test, which do not carry any reference to the candidate's name. The Selection Board acknowledges the observations of each of the correctors and decides on the result to award. In order to be able to evaluate the quality of the translations demanded in the framework of this competition, the Board has established criteria reflecting the different sorts of errors to be penalised. These criteria are described in the evaluation sheet, where the Board's overall evaluation can also be found. This evaluation is transmitted to candidates that request it. This practice was followed in the case of the complainant.

The information communicated in this sheet is intended to allow the candidate to understand the reasons why the Board awarded him or her a classification lower than the minimum required in the Notice of Competition. The grade awarded constitutes the basis of the decision and the final evaluation sheet, communicated to the complainant, is an additional explanation of that decision. In accordance with the case-law of the Court of First Instance, given that the mark is a sufficient basis for the Board's decisions, it is in no way necessary that it identify the answers that were considered unsatisfactory(6).

The Selection Board did not write any comments on the candidates' examination papers and did not, therefore, identify, on those papers, the errors committed. Thus, the Board cannot communicate to the complainant information other than that already communicated to him in the evaluation sheet.

At the time of the correction of the tests, each corrector submits observations, but it is, exclusively, the assessment of the entire Selection Board that appears on the sheet, which includes the evaluation criteria. This sheet had been communicated to the complainant. The tests were evaluated according to each of the criteria and marked in accordance with their level of quality, namely, very good, good, sufficient, and insufficient.

In this respect, EPSO recalled that if, on one hand, the Ombudsman held, in his decision on complaint 324/2003/MF, that he was not aware of any rule that would oblige a Selection Board to write its evaluation comments on the copy of a candidate's examination paper, on the other hand, the Court of First Instance has held that, when a Board corrects examination papers, it is not necessary that the corrections appear on the copies of the examination papers. The correction methods must, indeed, ensure that the corrections which had already been made do not affect the subsequent evaluation by another corrector(7).

In the evaluation sheets related to the complainant's tests, the Selection Board has indicated, apart from the classification, the different types of errors that had been found.

As regards test (a), the Selection Board confirmed that the complainant had, on different occasions, used inadequate legal terminology and pointed out that the test's final classification was not necessarily equivalent to the average of analytical evaluations, given that specific points could be considered as particularly important as, for instance, certain terminological faults. Most of the answers had been awarded the level of classification "Good" and only two among them were classified as "Sufficient". Therefore, the quality of the complainant's paper was considered good on the whole, but it did not merit a grade higher than the one awarded. The evaluation of a test is carried out exclusively by the Board, by comparing the performance of the candidates in the test. The final result awarded by the Board to a candidate does not depend exclusively on the quality of his or her tests, but also on the quality of the global level of performance of all the candidates.

The complainant's translation of test (b) was considered insufficient at all levels: it lacked rigour in execution and included mistakes of vocabulary, syntax and grammar, orthography and punctuation, as well as errors that influenced terminological correctness and coherence. On page 8 of the complainant's test, of which the complainant received a copy, a part of the translation was missing, between lines 10 and 11 of that page. This translation was awarded a mark of 18/40. It is clear from the evaluation sheet that the Board awarded the complainant a classification of "Sufficient" for all of the criteria. The Board concluded, therefore, that the final result was justified.

A Selection Board has extensive powers of assessment. It is up to the Board to draw up the guidelines for the correctors, with an eye to facilitating them in their mission, which is to guarantee the coherent application of the criteria, and strictly to observe the principle of equal treatment of candidates, who are entitled to be evaluated in an objective manner and in respect of the same criteria, in comparison to the other candidates.

The Selection Board did not establish any model translation, but guidelines to be respected throughout the correction. Unlike the practice in translation schools, the Boards do not create model translations, but have the mission of identifying the best translators.

Assuming that the complainant's request for copies of the examination papers of other candidates had the goal of enabling him better to prepare for a future competition, EPSO emphasised that each competition is different, even when it covers the same subject-matter. Given that the selection procedures are independent, each competition is managed in accordance with the provisions of its respective notice and each Selection Board is compelled to respect these provisions.

The tests are evaluated by a Selection Board, nominated for the competition, on the basis of the criteria it establishes itself. The Board relies on the provisions of the Notice of Competition which contain criteria and objectives that do not necessarily correspond to any other previously published competition.

The complainant's request to have access to the other candidates' examination papers could not be satisfied without infringing the rights of those candidates to the protection of their personal data.

The possibilities of requesting a re-examination were foreseen in Annex A to the Notice of Competition. All requests for re-examination are duly considered by the Selection Board, which analyses the reasons for such a request made by the candidates. It is the responsibility of the Board to analyse the requests for re-examination and to answer them. However, a request for re-examination does not imply that the Board is obliged to proceed, automatically, to a third correction, without any valid reason. The simple fact that the candidate is convinced that he has prepared a high-quality answer is not enough.

Conclusion

EPSO concluded, in summary, that the Selection Board respected the provisions of the Notice of Competition and the procedural rules applicable to competitions, which include equal treatment of candidates, impartiality of the Board and the reasoning of the decisions adopted.

The complainant's translation tests (a) and (b) did not deserve classifications higher than those awarded. The fact that the complainant obtained, in test (b), a lower classification than the minimum required, meant that he could not be admitted to the next stages of the competition.

EPSO emphasised that it is not part of the responsibilities of a Selection Board to indicate to the candidates the seriousness and the importance of the errors they have committed, as happens, for instance, in school examinations. The Board's mission is to evaluate candidate's merits vis-à-vis other candidates and to establish, accordingly, a list of candidates who possess the highest standards as regards competence, performance and integrity, and who are, therefore, capable of filling the posts available in the European institutions, in accordance with the provisions on recruitment of the Staff Regulations.

The complainant's observations

The complainant's observations can be summarised as follows.

The complainant took the view that the mere communication of the results, in the manner in which they were conveyed to him, was not sufficient to justify the evaluation of his tests (a) and (b), since it violated the principles of democracy and of transparency. The communication of the results could be considered as sufficient as a general rule. This general rule, however, should not be applied to cases where there were reasonable doubts concerning the correctness of a candidate's marks. The additional explanation offered by EPSO was nothing more than a set of data which, in itself, did not clarify how the criteria were applied. The additional explanation merely referred to general evaluation criteria, and was not supported by a possible correction table for each translation line, or any precise indication as to the errors committed by the complainant. The democratic principle provides that every citizen has the right to have access to the reasons that justify the decision which is detrimental to him or her, whatever the entity that has issued it. The principle of transparency implies the right to defend oneself against all elements of an unfavourable decision. An independent entity, such as, for instance, a court, should, therefore, be able to review the decision and the deciding authority should, therefore, be liable for its actions. Transparency is a necessary condition for honesty in the administration, which must allow, in cases of unfair decisions, for an independent review.

As regards the fact that the Selection Board did not introduce any comments on his examination papers and did not, therefore, identify, on those papers, the errors committed, the complainant took the view that such a practice was incompatible with the possibilities of an independent review. The complainant questioned the basis for justifying the possibility that the correctors' comments may "evaporate as smoke", and that the candidates are solely entitled to know their final mark adopted by the whole of the Board. It was, therefore, impossible to determine where the comments were registered and this, too, violated the principles of democracy and of transparency.

The argument that there is no express provision that requires Selection Boards to present their comments constitutes a failure to respect the fundamental principles of Community law and the general principles of law and legal ethics. Even when it is not necessary that the corrections appear in the originals or copies of the examination papers, these must appear in some form. The Board's activity must be available for review by an independent entity, since it relates to evaluation of the candidates' merits and promotes fair recruitment. The issue is not about knowing whether there is an express rule as regards the registration of the detailed classification on the original or on the copy of the examination paper, but rather about recognising that the Board did not follow the ethics of the general principles of law.

As regards EPSO's position that the Selection Board's evaluation takes into consideration the global level of performance of all candidates, the complainant took the view that this violates the principle of trust, since it is a purely subjective criterion without any basis in the Official Journal or in the evaluation sheets. Evaluating the complainant's examination papers by comparing them with the performance of other candidates could only be accepted if such a parameter had been foreseen in the evaluation sheets' correction criteria. This "surprise criterion" may, therefore, be used at EPSO's convenience. Furthermore, such a criterion, inevitably, implies a levelling down of the evaluation parameters, to the detriment of the best performers among the best, reducing the translations' style to nothing.

As regards the qualitative criteria put forward by EPSO, notably the alleged use of inadequate and incoherent legal terminology by the complainant, the complainant took the view that EPSO failed again to provide him with a convincing explanation for such a finding.

As regards the Selection Board's finding that the complainant failed to translate a part of test (b) on page 8 of his written paper, "between the line 10 and line 11 of that page", the complainant stated that he did not understand to which lines the Board referred. In his view, the Board's finding violated the principles of truth and correctness and revealed EPSO's gross negligence in evaluating his tests and its unwillingness to have his classification revised. The complainant emphasised that the lines referred to by EPSO were to be found in lines 19 and 21 of page 8 of his translation. These lines referred to "(...) território nacional inglês" and "[r]esulta com clareza destes casos que (...)", which corresponded to, respectively, the seventh paragraph of page 1, "(...) territory", and the first paragraph of page 2, "[i]t emerges clearly from these cases that (...)", of the text. There were, therefore, no missing lines in the translation, but, perhaps, some excess in the translation, which is not the same. EPSO could not, therefore, have taken the view that no further re-examination was needed, because the above, in the complainant's view, proved the inadequacy of the correction, at the very least as regards the completeness of the translation.

The complainant further emphasised that he did not propose any random or indiscriminate access to the other candidates' examination papers but, rather, suggested that every candidate who requests a re-examination of his/her examination papers be provided with (i) a model translation, in order to ensure objectivity, and (ii) the examination paper with the closest positive mark to that of the requesting candidate, in order to ensure impartiality, which, in the complainant's case, would be the lowest positive mark obtained in this competition. Access to these documents should, obviously, be granted with due respect for the protection of the candidates' personal data.

The complainant further took the view that EPSO's position that it is not part of the responsibilities of a Selection Board to indicate to candidates the seriousness and the importance of errors they have committed, as, for instance, in school examinations, was incoherent. Such an understanding would, in the complainant's view, lead to the situation whereby there would be no obligation for a Board to justify, or to assume responsibility for, its decisions. Such lack of justification or responsibility would be without any basis in rationality and rigour, and would, therefore, appear as a rather unfortunate reflection of the Board's secretive authority.

In view of the above, the complainant took, in summary, the view that the confirmation of his marks, as well as EPSO's opinion, suffered from serious deficiencies as regards truth and evaluative rigour. In his view, such behaviour could, perhaps, be avoided, through certification of the recruitment services and clear identification of their respective procedures. For the time being however, the complainant would consider himself satisfied if the Selection Board were to re-evaluate his examination papers with a view to admitting him to the oral tests.

Further Inquiries

After careful consideration of EPSO's opinion and the complainant's observations, it appeared that further inquiries were necessary.

Request for further information

The Ombudsman therefore asked EPSO to explain why, in light of the existing rules on access to documents, a request for access to an anonymous copy of the examination paper having received the lowest positive mark in the relevant test could not be satisfied without infringing that candidate's right to the protection of his or her personal data.

EPSO's reply

In its reply, EPSO, first, emphasised that the principle of access to anonymous copies of written examination papers of other candidates had been considered in a decision by the Ombudsman in case 1953/2003/(ADB)PB(8).

It further stated that in all activities related to the organisation and management of competitions, EPSO respects equally the rules on protection of personal data and those of access to documents, as long as special rules, governing specific matters, that would make it necessary to invoke the principle according to which special rule derogates from the general rule, do not prevail.

EPSO pointed out that, as far as competition procedures are concerned, the Court of First Instance confirmed the lex specialis nature of the rule that provides that the work of Selection Boards is secret, vis-à-vis the general rule on access to documents provided for in Article 255 of the EC Treaty and in 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(9) ("Regulation 1049/2001") which implements it.

As has been confirmed on several occasions by the case-law, the expressed secrecy rule applicable to the work of Selection Boards, provided for in Article 6 of Annex III of the Staff Regulations, that is applicable by analogy to selection procedures, precludes the communication of the attitudes adopted by individual members of Boards and of all the factors relating to the individual or comparative assessment of candidates.

When interpreting this provision, the Court of First Instance confirmed that the rule of secrecy precludes the communication of a written test corrected by the Selection Board, even to the candidate who has produced it(10).

The disclosure of an examination paper of a different candidate having received the lowest positive mark, even if anonymous, would imply the disclosure of elements of assessment of a comparative nature, since the candidate would be in the possession of, besides his own grade, the grade of another candidate and the elements used by the jury to perform the comparative assessment. Such disclosure is clearly forbidden by the secrecy rule that governs the work of the Selection Board.

Consequently, the rules on access to documents, which contain exceptions, cannot therefore render the examination papers public, even under anonymity.

As regards the specific issue of candidates' right to protection of their personal data, EPSO took the view that in some cases related, in particular, to handwritten examination papers as in the present case, there is a possibility of a person being identified by other persons through the combination of different elements, such as the language or the number of the competition, even when no name appears on the paper. Given that the public disclosure of the examination papers is covered by the secrecy rule provided for in Article 6 of Annex III of the Staff Regulations, with an eye to protecting the public interest in guaranteeing the independence and impartiality of the Selection Board, there was no need to take a further position on this issue.

The complainant's comments

In summary, the complainant took the view that the Selection Board continued to refuse to present data that could demonstrate its impartiality and limited itself to interpreting the complainant's request as aiming at random and indiscriminate access to the other candidates' examination papers. In this regard, the complainant repeated what he had stated on this issue in his initial complaint and in his observations on EPSO's opinion.

The complainant further took the view that Case T-371/03 Le Voci v Council had no application to the present case since it referred to facts that had taken place during an internal competition governed by the applicable internal regulation, Article 255 of the EC Treaty, and Regulation 1049/2001.

In the complainant's view, there is no special rule applicable to his case. Even if Article 6 of Annex III of the Staff Regulation were to be applicable to the complainant's case, the principles, according to which the proceedings of Selection Boards are secret, were to be understood as related to the serenity and independence needed for evaluators to conduct their work with a view to granting a mark. After that mark is granted, the work of, and the proceedings adopted by, the marker should be amenable to scrutiny. Only under exceptional circumstances related to public interest, may such a possibility of review be denied. The facts of the case do not, however, point in such a direction and only an abusive interpretation of Article 6 of Annex III of the Staff Regulations could extend the secrecy of the work of Board to an ex post review of its activity.

The complainant also referred to the Court's statement that

"(...) secrecy was introduced with a view to guaranteeing the independence of Selection Boards and the objectivity of their proceedings, by protecting them from all external interference and pressures whether these come from the Community administration itself or the candidates concerned or third parties".

The complainant argued that this statement summarised in substance his view of the secrecy of Boards. The complainant pointed out however that the quoted sentence appears to be incompatible with the Court's own following statement that "[c]onsequently, observance of that secrecy runs counter to divulging the attitudes adopted by individual members of Selection Boards (...)." According to the complainant, after the assessment had taken place and the Board is free from the burden of a possible public interest, the result should be open to all interested parties. The understanding that observance of secrecy runs counter to divulging also "all the factors related to (...) comparative assessment of candidates" corresponds fully to the secretive view proclaimed by the Board in the present case vis-à-vis requests for access to documents(11). Besides being an extension of secrecy to the post-assessment activities of Boards, the above understanding also renders it impossible for the interested parties to challenge the decisions that affect them. This is, in the complainant's view, incompatible with the principles of democratic transparency.

In the present case, the Selection Board has consistently made use of the principles of public interest, transparency, objectivity, impartiality and independence to justify its refusal to review. Regulation 1049/2001 however does not, in the complainant's view, support the Board's interpretation that this disproportionate secrecy is necessary to guarantee its independence and impartiality.

Finally, the complainant emphasised that a normal person does not have any means of comparing the examination papers. In any case, it would have been sufficient for EPSO to disclose a transcript of the requested written paper in typed form in order to prevent any identification of the candidate or the Selection Board, thereby merely showing what had been written and nothing else.

THE DECISION

1 The alleged failure to identify precisely the complainant's errors

1.1 On 27 January 2006, the complainant sat written tests of Open Competition EPSO/AD/32/05 to establish a reserve pool from which to recruit lawyer-linguists (AD6) having Portuguese as their main language(12) but was not successful. Subsequently, EPSO provided the complainant with copies of his written tests and the evaluation sheets. By a letter to EPSO, the complainant then requested the Selection Board to reconsider his application. After re-examining the complainant's application, the Board confirmed his classification on the grounds that he had used inadequate legal terminology in both tests and omitted some translation lines in test (b). It also emphasised that the complainant's final classification was not necessarily equivalent to the average of analytical evaluations and that "a specific point could be considered as particularly important (as, for instance, certain terminology faults)".

The complainant alleges that EPSO failed to identify precisely his errors in the translations. In support of this allegation, the complainant argues that EPSO failed to (i) identify the alleged terminology faults and the missing translation lines; and (ii) clarify which were the particularly important points in the context of the evaluation criteria. He further argues that EPSO should provide him with (iii) a model translation; and (iv) an anonymous version of the examination paper having received the lowest positive mark in this competition.

The complainant claims that EPSO should (i) provide him with the information indicated in his allegation; (ii) change his classification; and (iii) admit him to the following stages of the competition.

1.2 In its opinion, EPSO stated, in summary, that the complainant received copies of (i) the evaluation sheets that described the different sorts of errors that had been penalised; and (ii) his unmarked examination papers. As regards test (a), (iii) t he complainant used inadequate legal terminology on different occasions, and the Selection Board, when assigning a specific mark to the complainant, (iv) took into account the level of performance of all candidates. As regards the complainant's test (b), it (v) lacked in rigour and included mistakes regarding vocabulary, syntax, grammar, orthography and punctuation, as well as errors concerning terminological correctness and coherence. Also (vi) a part of the translation, between lines 10 and 11 of the complainant's page 8, was missing. More generally, EPSO explained that (vii) the Board did not establish any model translation; and (viii) it could not give access to other candidates' examination papers without infringing those candidates' rights to protection of their personal data.

EPSO's explanations concerning errors, missing lines and model translations

1.3 The Ombudsman notes that EPSO provided the complainant with copies of his unmarked examination papers and the evaluation sheets.

1.4 The Ombudsman points out that he is not aware of any rule that would oblige the Selection Board to write its comments relating to the assessment of a candidate on his or her examination paper(13). The Ombudsman has held that, in principle, giving access to an evaluation sheet can be an adequate indication of the reasons for the mark of a candidate(14), provided that it is complete(15). In this regard, the Ombudsman notes that during the present inquiry, EPSO offered additional explanations concerning the complainant's alleged errors and missing translation lines.

1.5 On this latter point, the Ombudsman notes the complainant's position that the translation of the seventh paragraph of page 1, "(...) territory", and the first paragraph of page 2, "[i]t emerges clearly from these cases that (...)", was to be found in lines 19 and 21 of page 8 of his written paper. In this regard however, the Ombudsman notes that the complainant did not make any reference to the sentence "[t]he Court of Appeal stated:", or to its respective translation into Portuguese of his written paper, and takes the view that EPSO's position that the translation was incomplete appears to be reasonable(16).

1.6 The Ombudsman further notes EPSO's statements that, in summary, the Selection Board did not prepare any model translation, but mere guidelines to be respected throughout the correction. In this regard, the Ombudsman points out that, in view of the wide margin of discretion that the Board enjoys when it evaluates the performance of candidates, the Board is, in principle, under no obligation, as a matter of law(17), or under principles of good administration, to establish model translations.

1.7 In view of the foregoing, it appears that EPSO has complied with the applicable legal framework and offered, during the present inquiry, sufficient explanations concerning the complainant's performance and the grading obtained in his written tests. The Ombudsman therefore considers that no further inquiries into this aspect of the complaint are justified.

The specific issue of access to the examination paper of another candidate

1.8 The Ombudsman notes EPSO's position that, in summary, granting access to the examination paper having received the lowest positive mark (i) would infringe its author's data protection rights; and (ii) would be contrary to the Staff Regulations of the European Communities and to the Community Courts' case-law. The Ombudsman further notes EPSO's position that, in summary, in cases related to handwritten examination papers, the possibility exists that a candidate could be identified through the combination of different elements, such as the language used and the number of the competition, even where the papers released carry no reference to the candidate's name.

1.9 The Ombudsman fails to see how the language used or the number of the competition could help to identify the candidate who had produced the paper with the lowest positive mark. In this regard, the Ombudsman notes in particular the complainant's statement that the identification of the relevant candidate could be prevented through disclosure of a typed version of his or her written examination paper. However, the Ombudsman also notes that the complainant's request to be given access to the examination paper of the candidate to whom the selection Board has given the lowest positive mark, thereby allowing him or her to go further to the next stage of the competition, is clearly made in order to allow the complainant to compare the Board's assessment of his own performance with the Board's assessment of the other candidate's performance. The Ombudsman recalls that there might be more that one candidate having obtained the lowest positive mark in test (b). Disclosing to the complainant the paper or papers of other candidates assessed by the Board with the lowest passing marks would clearly amount to disclosing the individual and comparative assessments made of different candidates in a certain competition, which, in light of the quoted excerpts from Case T-371/03 Le Voci v Council(18), cannot be disclosed, because such individual and comparative assessments are covered by the obligation of secrecy.

For these reasons, the Ombudsman takes the view that EPSO's position in this respect appears to be reasonable and, therefore, no further inquiries into this aspect of the complaint are justified either.

2 Conclusion

2.1 For the reasons given in points 1.7 and 1.9 above, the Ombudsman considers that no further inquiries are justified as regards the complainant's allegation and claims. The Ombudsman therefore closes the case.

The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2005 C 184 A.

(2) OJ 2005 C 184 A.

(3) Test (a) consisted of a translation into Portuguese of a legal text in French.

(4) Test (b) consisted of a translation into Portuguese of a legal text in English.

(5) According to the final evaluation sheets, the overall classification should be interpreted as follows (in the original French): "Traduction satisfaisante: Connaissance perfectible de la langue source et/ou de la langue cible. Des petites failles dans la reproduction du raisonnement juridique; Traduction insuffisante: Lacunes dans la connaissance de la langue source. Erreurs de rédaction en langue cible. Problèmes de compréhension juridique".

(6) Case T-291/94 Pimley-Smith v Commission [1995] ECR-SC I-A-209 and II-637, paragraphs 63 and 64.

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

(8) According to point 2.11 of the Ombudsman's decision on complaint 1953/2003/(ADB)PB, "[t]he Ombudsman considers that it was reasonable for the Commission and EPSO to conclude that it would infringe the other candidates' data protection rights if they were to give the complainant full access to these candidates' examination papers. Moreover, the complainant has not made specific comments on the possibility of partial access. In light of the above, it appears that there has been no maladministration with regard to this aspect of the complaint."

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

(10) Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957, paragraphs 120 - 126.

(11) All quotes are taken from paragraph 123 of Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957.

(12) OJ 2005 C 184 A.

(13) See Decision on complaint 324/2003/MF, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(14) See Decision on complaint 774/2003/ELB, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(15) The Ombudsman notes that recently the issue of evaluation criteria, including marking instructions, appears to be a serious concern for many unsuccessful candidates who have turned to him. In the Ombudsman's view, it is clear that this issue deserves special attention. On 10 October 2005, he therefore opened an own-initiative inquiry (OI/5/2005/PB) into the issue of access to the evaluation criteria established by the Boards. Information on the outcome of the Ombudsman's own-initiative inquiry will be published on the Ombudsman's website in due course.

(16) According to the copy of test (b) provided by EPSO, phrase "The Court of Appeal stated:" is found between paragraphs "(...) territory" and "[i]t emerges clearly from those cases that (...)" quoted by the complainant.

(17) See Case T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 34, according to which (in the original French): "au vu du large pouvoir d'appréciation dont dispose un jury de concours pour évaluer les résultats des épreuves d'un concours, le jury ne saurait être tenu, en motivant l'échec d'un candidat à une épreuve, de préciser les réponses des candidats qui ont été jugées insuffisantes ou d'expliquer pourquoi ces réponses ont été jugées insuffisantes. Un tel degré de motivation n'est pas nécessaire (...)."

(18) Case T-371/03 Le Voci v Council, [2005] ECR-SC I-A-209 and II-957, paragraph 123 provides that "(...) observance of [the] secrecy [of the proceedings of the Selection Board] runs counter to (...) revealing all the factors relating to individual and comparative assessment of candidates (...)."