Odločba v zadevi 1172/2006/(GK)PB - Domnevno nezadostne informacije o napakah v pisnem preizkusu, posredovane kandidatu

Strasbourg, 11 September 2007

Dear Mr X,

On 20 April 2006, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning Open Competition EPSO/AD/4/04.

On 27 June 2006, I forwarded the complaint to the Director of EPSO, which sent its opinion on 20 September 2006. I forwarded it to you with an invitation to make observations, which you sent on 3 October 2006.

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

THE COMPLAINT

The complainant took part in Open Competition EPSO/AD/4/04, organised to constitute a reserve pool from which to recruit administrators of Hungarian citizenship in the field of European public administration. The Notice of Competition was published in Official Journal C 2004 317A, on 22 December 2004.

The complainant sat the pre-selection tests which were held on 15 July 2005. The pre-selection tests in the candidate's second language (the language chosen by the candidate when applying for the competition) consisted of tests (a), (b) and (c), each of which comprised a series of multiple-choice questions, which were designed to assess the candidates' skills and knowledge in a number of areas, as follows:

test (a) focused on the candidate's specific knowledge in the field referred to above, and was marked on a scale of 0 to 60, with a pass-mark of 30;

test (b) concerned the main developments in European integration and Community policies. It was marked on a scale of 0 to 20, with a pass-mark of 10;

test (c) sought to assess the candidate's general ability, in particular his or her verbal and numerical reasoning skills. It was marked on a scale of 0 to 40, with a pass-mark of 20.

Written tests (d) and (e), which were held on the same day as the pre-selection tests, consisted of the following:

test (d) contained a choice of subjects designed to assess the candidate's specialist knowledge, comprehension skills, ability to analyse and summarise, as well as drafting skills in the candidate's second language, as specified when applying for the competition on-line. This test was marked on a scale of 0 to 40, with a pass mark of 20.

test (e) required the drafting a short memo in the candidate's main language, setting out the arguments and conclusions from test (d). This test was designed to assess the candidate's command of his or her main language as regards the quality of both his or her writing style and presentation. This test was marked on a scale of 0 to 10 with a pass-mark of 8.

Test (d) was only marked if the candidate had obtained the pass-mark for written test (d).

The written tests were only marked if the candidate met all of three of the following conditions:

1. he or she obtained the pass-mark in each of the pre-selection tests (a), (b) and (c);
2. he or she was among the "X" best candidates for all these tests (for Hungarian citizens: 115);
3. he or she met all of the eligibility criteria.

Because the complainant satisfied all three conditions his written test (d) was marked.

Given that he did not obtain the pass-mark for this test (19/40 when the pass-mark was 20), the Selection Board did not mark the other written test, that is, test (e), and consequently did not invite him to the oral test.

The complainant was informed of the marks he had obtained in the pre-selection tests and in written test (d) by letter of 16 February 2006.

After receiving his marks, the complainant wrote to the Selection Board on 20 February 2006 requesting that his written test (d) be reconsidered and asking for a copy of his corrected test in order to understand why he had failed. In his letter, the complainant made it clear that he believed he had been discriminated against on the grounds of his age and of other stated circumstances.

On 23 February 2006, EPSO sent the complainant an acknowledgement of receipt and informed him that he would receive a reply to his request for reconsideration as soon as possible.

On 3 March 2006, the complainant sent EPSO an e-mail about his marks for test (a) which he considered were too low. On 10 March and 10 April 2006, the complainant sent reminders to EPSO pointing out that he had not yet received a reply.

On 12 April 2006, EPSO wrote to the complainant informing him of the outcome of the consideration of his request by the Selection Board. The Board informed him that it had checked his answers in the pre-selection tests (a) and (b); that it had concluded that the marks communicated to him were correct; and it therefore had no choice but to confirm the marks. As regards the written test, the Board stressed that this was not a traditional exam, but that his performance had been compared with that of the other candidates as a whole. The Board added that each test had been marked by at least two markers according to criteria laid down in advance by the Board. Furthermore, the Board explained that, in accordance with the principle of non-discrimination, which was also mentioned in the Notice of Competition, the test papers were identified only by a secret number in order to conceal the candidate's identity. The Board also gave details of the marking procedure used. After re-examining the complainant's written paper, the Board informed him that there had been no error in the marking and it had no choice but to confirm the mark of 19/40, as communicated to him previously. A copy of his test and the evaluation sheet completed by the Board were attached to the letter.

The Ombudsman opened the present inquiry into the following allegations and claims made by the complainant:

Allegations:

1. In evaluating his test, EPSO acted in an unfair and discriminatory manner because of his age and other stated circumstances;
2. EPSO failed to provide adequate reasons for its initial evaluation and marking of his pre-selection tests (a), (b) and his written test (d) and fairly to handle his subsequent request for reconsideration;
3. EPSO failed to provide him with a copy of his "corrected essay" in written test (d) and with the correct answers for the tests (a) and (b), as requested by e-mails of 10 March and 10 April 2006; and
4. EPSO failed to reply to his e-mails of 10 March and of 10 April 2006.

Claims:

1. the complainant's essay for the written test (d) should be reconsidered and re-evaluated; and
2. the complainant should be provided with copies of his "corrected essay, that is, the evaluation sheets" for his written test (d), copies of his corrected tests (a) and (b), and with detailed justifications for his marks.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO replied to the complaint as follows:

Pre-selection tests (a) and (b)

For the pre-selection tests an answer key was prepared before the tests were held. EPSO enclosed a copy of the answer key with these comments. It could be seen from this answer key that the complainant's results were as follows:

test (a): 29 correct answers out of 40, giving a total score of 43.5/60, and

test (b): 34 correct answers out of 40, giving a score of 17/20.

The complainant could understand from the answer key why the Selection Board awarded him the marks it did. EPSO also pointed out that the complainant had not challenged the wording of any question or the choice of the correct answer as shown in the answer key.

Written test (d)

As was explained to the complainant in the letter of 12 April 2006, the tests were marked according to rules ensuring that the evaluation was impartial and objective. The complainant appears, however, to contest this when he alleges that "the marking of his tests was unfair and discriminatory on the grounds of age and[other stated circumstances]".

Each test is assessed by two markers working on photocopies of the tests which contain no reference to the candidate's name, age or to information relating to the other circumstances referred to by the complainant. The selection board notes the comments made by each marker and then decides on the final mark.

In the competition in question, the Selection Board laid down criteria for assessing the quality of the tests. The Board also included these criteria in the first part of the evaluation sheet. The criteria for assessing the quality of these tests are: (i) specialist knowledge and understanding of the subject: personal input, expertise, grasp of the subject, inclusion of key elements; (ii) ability to analyse and summarise: ability to present all the points and assess their relative importance; relevance, coherence and structure of the argument; and finally (iii) drafting skills: style, presentation, clarity, precision, conciseness. The Selection Board gave an indication on the evaluation sheet of how it rated the quality of the test according to each of these criteria.

In the complainant's case, the Selection Board rated his specialist knowledge and ability to analyse and summarise as average, but his drafting skills as unsatisfactory.

The purpose of the information provided on this sheet was to help the candidate understand why the selection board had given him a mark that was less than the pass-mark required by the Notice of Competition.

It is important to remember that the mark reflects the grounds for the decision that is regarded as the act adversely affecting the complainant, while the final evaluation sheet provided to the complainant constitutes an additional explanation. According to the established case-law of the Community Courts, the mark constitutes sufficient grounds for the selection board's decision, and consequently there is no need for the board to identify the answers that were not deemed to be satisfactory.

Furthermore, the Selection Board did not make any marks on the candidates' test papers. Consequently, it cannot provide any more information to the complainant than was already communicated on the evaluation sheet and cannot therefore accede to his request for a copy of his test containing corrections or annotations in the body of the text, because no such copy exists.

When the tests were marked each marker made comments, but only the evaluation sheet shows the assessment of the Selection Board itself, which is the only body authorised to assess the candidates' performance, for each marking criterion. EPSO sent the Board's assessment to the complainant. Even though a board may seek the opinion of evaluators, such as the markers, it is a matter of established case-law that it is the responsibility of the board and not of any third parties enjoying a consultative role to retain control of the operations and to exercise its discretion.

EPSO pointed out that, in the case of complaint 324/2003/MF, the Ombudsman stated that he was not aware of any rule requiring the selection board to write comments relating to the evaluation of a candidate on that person's test paper.

The Court of First Instance has also ruled on the method that may be used by a selection board for correcting tests and held on this occasion that the corrections could not appear on the test papers themselves. This is because the marking methods must ensure that corrections already made do not influence the subsequent evaluation by another marker(1).

EPSO pointed out that a test is evaluated solely by the selection board and involves a comparison of each candidate's performance with that of other candidates. It is important to stress that the final mark awarded to the candidate by the selection board depends not only on the quality of that person's test but also on the overall quality of the performance of all candidates.

In view of the explanations given above regarding the anonymous correction of the test papers by two different markers, EPSO can guarantee that the principle of non-discrimination was fully respected. Moreover, the complainant does not cite any evidence to support his relevant allegation.

The complainant's observations

In his observations on EPSO's opinion, the complainant made, in summary, the following comments.

First, the complainant stated that the correct answers for the pre-selection tests, namely, tests (a) and (b), were reasonable, and the complainant thus accepted them.

Further, he noted that it is widely known that EPSO

"does not follow a transparent way in the process of evaluation of the written tests", and "many complainants claim that the Selection Board had failed to give them access to their marked examination papers".

"A similar instance of maladministration has happened in my case. So far I have received a copy of my unmarked examination paper (...) as well as a copy of the Selection Board's evaluation sheet."

He added that: "I would like to receive the marks of the two markers who corrected my essay and I would like to get a detailed explanation of my marks. The reasons given for the decision on my essay are insufficient: the Selection Board simply ticked certain boxes on the evaluation sheet. They have still not sent the two markers' correction marks to me. I have not received a valid explanation of my mark, no information has been given to me as to how many errors have been found and whether serious or only minor errors have been committed".

The complainant expressed the belief that "the essay I submitted was of high quality and therefore fulfilling the high standard required. It should be awarded at least the pass mark". The complainant also stated that "(...) my test should be re-examined by genuinely impartial and duly qualified professionals and I should be admitted to the oral test".

The complainant stated that "[a] number of arguments support my claim that my essay was given an unjustifiably low mark": (i) The complainant had gathered that his knowledge of the EU constitutional treaty had been considered insufficient, which in his view could not be correct in light of his extensive reading in relation to this subject and his reference, in his essay, to the principal innovations of the constitution. (ii) His drafting skills were good, otherwise he "would not have received two professional degrees in English language". (iii) The complainant knew of EU staff whose abilities "are not superior to [his]".

Finally, the complainant maintained his view that he had been "discriminated [against] on the grounds of my age and [other stated circumstances]." H did not submit any evidence or arguments in this regard.

THE DECISION

1 Alleged discrimination because of age and gender

1.1 The complainant alleged that the European Personnel Selection Office ("EPSO") made its evaluation of his tests in Open Competition EPSO/AD/4/04 in an unfair and discriminatory matter because of his age and other stated circumstances. In light of the gravity of this allegation, the European Ombudsman considered it appropriate to afford EPSO an opportunity to respond to it in the present inquiry.

1.2 EPSO has pointed out that, in accordance with standard practice, each test had been assessed by two markers working on photocopies of the tests which contained no reference to the candidate's name, age or to information relating to the other circumstances referred to by the complainant. EPSO also noted that the complainant has not cited any evidence to support his allegation.

1.3 The Ombudsman notes that, as emphasised in EPSO's opinion on the complaint, the Selection Board in this case followed the standard practice of having the tests marked anonymously. Moreover, the complainant has not submitted any evidence or any concrete arguments to support his allegation.

1.4 In light of the foregoing, the Ombudsman finds that the allegation here concerned has not been substantiated.

2 Alleged failure to provide adequate reasons for initial evaluation and marking of the pre-selection tests and to fairly handle his subsequent request for reconsideration

2.1 The complainant alleged that EPSO failed to provide adequate reasons for its initial evaluation and marking of his pre-selection tests (a), (b) and his written test (d) and fairly to handle his subsequent request for reconsideration.

Pre-selection tests (a) and (b)

2.2 With regard to pre-selection tests (a) and (b), EPSO pointed out in its opinion that, for the pre-selection tests, an answer key was prepared before the tests were held. EPSO enclosed a copy of the answer key with these comments, from which the complainant's results could be seen. The complainant could furthermore understand from the answer key why the Selection Board awarded him the marks it did.

The Ombudsman notes that the complainant has expressly accepted EPSO's relevant above explanations.

In light of the above, the Ombudsman considers that no further inquiries into this aspect of the case is required.

Written test (d)

2.3 With regard to the complainant's test (d), the Ombudsman notes that his above allegation contains two parts: (i) adequacy of reasons, and (ii) fairness in the handling of the complainant's request for reconsideration. These are examined separately in the following.

- adequacy of reasons

2.4 The Ombudsman first notes that EPSO has correctly pointed out that the legal duty to state reasons for the rejection of an applicant's application following an unsuccessful written test is satisfied by the communication of the final mark to the candidate concerned(2). The Ombudsman notes that the complainant does not appear to dispute this part of EPSO's position, and that his complaint is rather concerned with the adequacy of the information given to him in relation to the marking of his test.

2.5 EPSO has in the first place pointed out that it has, in accordance with its standard practice, sent the complainant a copy of (i) his test paper for test (d), and (ii) the Selection Board's final evaluation sheet.

With regard to the marked test paper, both the Court of First Instance and the Ombudsman have consistently 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(3). A selection board is therefore under no obligation to provide such a paper to candidates.

2.6 As regards the Selection Board's final evaluation sheet, EPSO has expressly pointed out in the present case that "[t]he purpose of the information provided on this sheet was to help the candidate understand why the selection board had given him a mark that was less than the pass-mark required by the competition notice" (emphasis added). The Ombudsman notes that the purpose thus formulated by EPSO is on the whole consistent (albeit in a summary form) with the European Ombudsman's relevant position in this field. That position was referred to in, for instance, the Ombudsman's decision on complaint 674/2004/PB. In that particular case, EPSO and the Commission had referred to a previously made commitment to provide applicants with more information on their performance in open competitions. The Ombudsman noted the following:

"1.4 The commitment referred to by EPSO and the Commission was made following the Ombudsman's special report of 18 October 1999 to the European Parliament. The report followed the Ombudsman's own-initiative inquiry into the secrecy that formed part of the Commission's recruitment procedure. The special report included, among others, a formal recommendation that in future recruitment competitions the Commission should give candidates access to their own marked examination papers on request. This recommendation was based on the following considerations:

'[...] being able to inspect his own marked examination script does entail several benefits for the candidate. First, the candidate gains the opportunity to discover his mistakes and thus to improve his future performance. Second, the candidate’s confidence in the administration is strengthened. This is important, since there seems to be a widespread belief that tests are not always properly assessed by the Commission and indeed that sometimes they are not assessed at all. Third, if a candidate feels that he has been wrongly assessed, he will be able to argue much more precisely if he has seen his marked examination script.' (p. 5 of the Ombudsman's Special Report.)

1.5 In his letter dated 7 December 1999, the Commission's former President, Mr Romano Prodi, accepted the Ombudsman's recommendation that candidates should have access to their marked examination papers. In his letter to the Ombudsman, he stated the following:

'The Commission welcomes the recommendations you made in this report and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination papers, upon request, from 1 July 2000 onwards.'"

In his decision on complaint 674/2004/PB, the Ombudsman thus took the view that providing candidates with a copy of the selection board's final evaluation sheet can be considered to constitute an adequate indication of the board's assessment regarding the errors and weaknesses it identified in a candidate's test paper. The Ombudsman noted that the evaluation sheet must provide the candidate concerned with sufficiently clear and detailed information in light of the purposes identified in his above-mentioned inquiry. Furthermore, he explained how this requirement could be implemented in practice in relation to evaluation sheets concerning translation tests(4). The Ombudsman also pointed out that the requirement should not impose an unreasonable administrative burden on boards. Furthermore, he referred to the wide margin of discretion that the board enjoys when it evaluates the performance of candidates in tests. In light of this discretion, the Ombudsman considered that the board is under no legal obligation, or any obligation deriving from principles of good administration, to provide candidates with a detailed opinion on the specific errors or weaknesses that it has identified.

The Ombudsman notes that the present case concerns an evaluation sheet prepared for the assessment of an essay aimed at testing the candidate's specialist knowledge, comprehension and drafting skills, as well as ability to analyse and summarise. In this regard, the Ombudsman considers that the basic requirement that sufficiently clear and detailed information must be provided to candidates applies to such an evaluation sheet. This implies that the evaluation sheet should provide the candidate with sufficiently detailed information about the weaknesses identified in the candidate's test paper in light of the purposes mentioned in point 1.4 of the Ombudsman's above-mentioned decision on complaint 674/2004. This detailed information should also take into account the purpose of the specific test and the candidate's knowledge and abilities assessed through the test pursuant to the relevant provisions of the Notice of Competition.

2.7 In the present case, the evaluation sheet given to the complainant contained the following information:

"FINAL EVALUATION SHEET - SELECTION BOARD

COMPETITION ...

Written test d)

Secret no.: ...

SUBJECT 1 [ etc., to subject 7, subject 2 being ticked ]

In order to evaluate your performance, the Jury [i.e., the Selection Board] based itself on the following criteria:

• Knowledge of the Field and understanding of the subject

- Personal contribution and expertise on the subject

- Ability to master the subject

- Presence of key elements

• Analysis and summary

- Ability to present the main points and to judge the relative importance thereof

- Pertinence, coherence and structure of argumentation

• Drafting skills

- Style and presentation

- Clarity, precision, conciseness

General evaluation

Knowledge of the field: ○ Excellent ○ Very good ○ Good ○ Average ○ Insufficient

Analysis and summary: ○ Excellent ○ Very good ○ Good ○ Average ○ Insufficient

Drafting skills: ○ Excellent ○ Very good ○ Good ○ Average ○ Insufficient

Final mark: ... / ...

Overall written evaluation

○ Excellent paper corresponding perfectly to the requirements related to the nature and level of the functions.

○ Very good paper corresponding very well to the requirements related to the nature and level of the functions.

○ Good paper corresponding well to the requirements related to the nature and level of the functions.

○ Average paper corresponding in general to the requirements related to the nature and level of the functions.

○ Paper not corresponding to the requirements related to the nature and level of the functions.

Specific observations of the Selection Board: .................................................................................... "

In the present case, the Selection Board (i) ticked the relevant circles under "General evaluation"; (ii) noted the relevant points given under "Final Mark"; and (iii) ticked the relevant circle under "Overall written evaluation".

In light of standards referred to in point 2.6 above, the Ombudsman finds that the information given to the complainant on the evaluation sheet was sufficient for the test here concerned. The complainant's view that EPSO was obliged to provide him with more detailed information is not therefore upheld.

2.8 As regards the complainant's wish, expressed in his observations, to receive the marks of the two markers who corrected his essay, the Ombudsman does not consider it justified to extend the scope of his present inquiry into this claim, which was made by the complainant for the first in his observations on EPSO's opinion and does not appear to have been preceded by appropriate administrative approaches to EPSO.

- fairness in the handling of the complainant's request for reconsideration

2.9 With regard to this part of the allegation, the Ombudsman understands the complainant, in essence, to consider that his essay was clearly given an unjustifiably low mark in light of his knowledge and experience, and that the decision to confirm the Selection Board's rejection of his candidature was thus "unfair".

2.10 In this respect, the Ombudsman recalls that the Selection Board has wide discretionary powers in assessing tests such as the one at issue here. In these cases, when the complainant challenges the propriety of the Board's substantive assessment of his or her performance, the Ombudsman's review is necessarily limited to the existence of a manifest error of assessment. The complainant must prove such a manifest error of assessment in a sufficiently specific way, by making concrete reference to his performance in light of its evaluation and the purpose and content of the relevant text. A complainant's mere references to his or her abilities and background and personal conviction about the quality of his or her essay are clearly inadequate to establish such a manifest error of assessment, which concerns the complainant's performance in the specific test in question.

2.11 In the present case, the complainant has, in support of his above allegation, merely referred to his abilities and background and to his personal conviction about the quality of his essay. It follows that he has not provided any specific arguments or evidence supporting the existence of a manifest error in the assessment carried out by the Selection Board.

2.12 In light of the foregoing, the Ombudsman does not consider that the relevant part of the complainant's allegation has been substantiated.

3 Failure to provide a copy of the "corrected essay" and with correct answers

3.1 The complainant alleged that EPSO had failed to provide him with a copy of his "corrected essay" in written test (d) and with the correct answers for tests (a) and (b), as requested by e-mails of 10 March and 10 April 2006.

3.2 The Ombudsman considers that these matters have been dealt with in points 2.2 and 2.5 above. The Ombudsman therefore makes no further inquiries into this part of the case.

4 Failure to reply to e-mails

4.1 The complainant alleged that EPSO (wrongfully) failed to reply to his e-mails of 10 March and of 10 April 2006.

4.2 The Ombudsman is not in possession of these e-mails. In this regard, the complainant has informed the Ombudsman that he did not keep copies of them. However, it appears undisputed that both e-mails were essentially reminders relating to the complainant's previous e-mail of 3 March 2006, in which he contested the results that he had obtained in pre-selection tests (a) and (b). In its letter of 12 April 2006, EPSO informed the complainant of the outcome of the examination of his results obtained in the Open Competition, which included the following statement:

"[f]ollowing your request, the Selection Board has carefully checked your answer sheets for the pre-selection test a) and b). As a result of this examination, the Board has come to the conclusion that the results inserted in your EPSO profile is indeed correct. We therefore confirm that your mark is 43.5 for test a) and 17 for test b)."

4.3 In his observations, the complainant's has not submitted any further comments on this part of the case.

4.4 Since EPSO was not required to reply separately to these reminders, the Ombudsman finds that there has been no maladministration by EPSO regarding this part of the case.

5 The complainant's claims

5.1 In light of the above findings, it is not necessary to further examine the complainant's claims referred to under "The Complaint" above.

6 Conclusion

On the basis of his inquiries into this complaint, the Ombudsman has

1. concluded that it is not necessary to further inquire into the part of the second allegation concerning the pre-selection tests (cf. point 2.2 above); and
2. found that there appears to have been no maladministration by EPSO regarding the remainder of the complaint.

The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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

(2) Case T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 32: "Compte tenu du secret qui doit entourer les travaux du jury, la communication des notes obtenues aux différentes épreuves constitue, selon la jurisprudence susvisée, une motivation suffisante des décisions du jury (arrêts Parlement/Innamorati, point 22 supra, point 31, et Pyres/Commission, point 27 supra, point 66)".

(3) See 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 are available on the Ombudsman's website (http://www.ombudsman.europa.eu).

(4) In that case, the Ombudsman made the following findings (point 1.8 of his decision):

"(...) the evaluation sheet must 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. Such information would be particularly useful to candidates who, like the complainant in the present case, will often wish to know in which respects they should seek to improve their performance in future competitions. Relatedly, the Ombudsman pointed out that, in light of the above and in view of the wide margin of discretion that the Board enjoys when it evaluates the performance of candidates in tests, the Board is under no legal obligation or any obligation deriving from principles of good administration, to provide candidates with a detailed opinion on the specific errors or weaknesses that it has identified."