Strasbourg, 5 October 2005

Dear Mrs E.,

On 10 March 2004, you made a complaint to the European Ombudsman against the European Personnel Selection Office (EPSO) concerning Open competition COM/A/3/02 for administrators in the field of socio-economic and ethical aspects of research and technological development activities.

On 30 March 2004, I forwarded the complaint to the Director of EPSO. On 10 June 2004, the Commission sent an opinion, stating that it contained the joint views of the Commission and EPSO. I forwarded the opinion to you with an invitation to make observations.

On 30 July 2004, I received your observations.

On 14 December 2004, I asked EPSO for additional information.

On 3 February 2005, I received a reply in French sent by the Commission, which stated that it contained the joint views of the Commission and EPSO. On 21 February 2005, I received the translation of that opinion into English. I forwarded the translation of the opinion to you with an invitation to make observations.

On 28 April 2005, 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 relevant facts are, in summary, as follows:

The complainant took part in the written test of competition COM/A/3/02 for administrators in the field of socio-economic and ethical aspects of research but she was not admitted to the oral test. She answered question 1 of test "d" in Greek (her main language) and question 2 of test "d", which was identical in substance to question 1, in English (her second language).

Following her request, on 3 February 2004, EPSO sent the complainant a copy of her written test and a copy of the evaluation sheet drafted by the Selection Board.

After having examined these documents, the complainant found that she did not agree with the evaluation of her answer given in Greek to question 1 of test "d".

On 10 February 2004, the complainant sent a letter to EPSO, in which she asked that her answer to question 1 of test "d" be re-evaluated by a new team of examiners with qualifications in the field covered by the test. She also asked EPSO to provide her with information as regards the working posts of evaluators in order to determine whether the evaluators of her tests were working in Directorates K and C of the General Directorate for Research. She asked, furthermore, whether the evaluators were aware of the instructions provided to candidates taking the written test that they should use the supporting documents only as the starting point for answering questions. In this respect, she argued that, given the comments on her evaluation sheet, it could be presumed that the evaluators did not know about those instructions. Finally, she pointed out that the comments of the evaluators were too general and the mark received for the same topic in her main language (Greek) was lower than the mark awarded for the test taken in her second language (English). In this context, she recalled that she had successfully completed five university-level courses in modern Greek.

On 27 February 2004, EPSO replied that, after having rechecked her test, the Selection Board confirmed its initial marks. (The complainant included a copy of EPSO'S reply in the documents attached to her complaint). EPSO also explained the general rules for the evaluation of written tests.

On 10 March 2004, the complainant lodged a complaint with the Ombudsman.

She alleged that EPSO's reply of 27 February 2004 to her letter of 10 February 2004 was incomplete.

She also alleged that the evaluation of her written test was unfair and mistaken.

She claimed that EPSO should answer her letter of 10 February 2004 exhaustively, including information about the composition of the Selection Board(1).

She also claimed that her written test should be re-evaluated by a new team of examiners.

THE INQUIRY

The opinion of the Commission and EPSO

The Ombudsman forwarded the complaint to EPSO and received an opinion from the Commission, which stated that it contained the joint views of EPSO and the Commission. The opinion can be summarised as follows:

The complainant participated in Open competition COM/A/3/02 published in the Official Journal C 177 A of 25 July 2002 (with a subsequent corrigendum published in the Official Journal C 228 A of 25 September 2002) to constitute a reserve list of administrators (A7/A6) in the field of socio-economic and ethical aspects of research and technological development activities.

As the complainant had obtained one of the 200 best marks in the pre-selection test, she was invited to submit a full application and then to take part in the written tests on 11 September 2003.

Written test "d" consisted of a case study on a subject of the candidate's choice related to the field chosen and connected with research policy in Europe and at the international level, aimed at assessing the knowledge of the chosen field, comprehension skills, the ability to analyse and summarise and the ability to draft in the candidates' main and second languages.

On 23 January 2003, the complainant was informed of her results. Since she had obtained 16.8 for her written test (the minimum pass mark was 20, out of 40), she was not admitted to the oral test.

On 3 February 2004, EPSO sent the complainant, at her request, a copy of her examination paper together with the evaluation sheet.

On 10 February 2004, the complainant asked for question 1 of her test "d" to be re-evaluated by evaluators with qualifications in the field covered by the test. She also requested information about the background of the evaluators who had corrected her answer to this question.

By letter of 27 February 2004, EPSO informed the complainant that, after having examined her request, the Selection Board had decided to uphold her marks. In this letter, EPSO also explained the rules of the general evaluation system (evaluation by two evaluators on the basis of an "evaluation grid", anonymity of candidates, and evaluation criteria adopted prior to the tests). EPSO also informed her that in order to be included in the list of the 85 candidates with the highest marks, it had been necessary not only to obtain the pass mark of 20 (out of 40) but to be awarded at least 24.8 points in the written test.

As regards the complainant's allegations and claims, EPSO and the Commission stated, in summary, the following:

The Commission and EPSO first explained in detail the principles governing the evaluation of the written tests in all open competitions organised by EPSO.

On the basis of wide discretionary powers, the Selection Board defines the procedures for, and content of, the tests in light of the objectives of the tests and of the overall competition. The Board establishes the evaluation criteria prior to the tests and according to the notice of competition. On the basis of these criteria, the evaluators write comments and a suggested mark for each test on a provisional evaluation sheet which is subsequently sent to the Board. These sheets are preparatory documents for the Board and are subject to deliberation. They are covered by the confidentiality of the Board's work, in accordance with the case-law (T-53/00 Angioli, paragraph 68 and T-33/00 Martinez Paramo, paragraph 44). The Board sets the final mark, it adds its comments to the sheet, and then the chairman of the Board signs the sheet and provides it to candidates at their request. For each element of the test, EPSO includes comments on that evaluation sheet so as to make it possible for candidates to understand the reasons for the marks given.

When the Selection Board informs candidates of their results, it complies with the obligation to provide explanations as regards their performance. The Commission and EPSO also stated that, according to the case-law, when giving reasons for a candidate's failure, EPSO is not obliged to indicate which answers were deemed inadequate or to explain why these answers were deemed inadequate. The evaluation sheet sent to the complainant showed, therefore, the elements of the written test which had been evaluated according to the provisions of the notice of competition, namely the knowledge of the field, comprehension skills, the ability to analyse and summarise, and the ability to draft in the main and second languages. The final mark and an overall assessment were given on the evaluation sheet as well. The Commission and EPSO concluded that the evaluation sheet sent to the complainant comprehensively reflected the quality of her performance.

The Commission and EPSO stated that, in response to the complainant's request for her paper to be marked again, the Selection Board did check the complainant's paper. However, in light of the dual marking already performed, the Board did not deem it necessary to mark the test again. Only the Board may decide to have a test marked for a third time and a request of a candidate to that effect does not oblige the Board to do so.

The Commission and EPSO pointed out that the composition of the Selection Board was published in the Official Journal C 40 of 19 February 2003.

As regards the complainant's request for detailed information concerning the posts of evaluators of her test and her assumption that the different test evaluators were all from the Directorate General for Research, the Commission and EPSO pointed out that, in accordance with the Staff Regulations, in the case of certain tests the Selection Board is entitled to appoint evaluators with an advisory capacity (assesseurs). The Commission and EPSO stated, therefore, that evaluators are appointed after careful consideration of their experience and competence in the field covered by the competition. The decision to turn to evaluators with an advisory capacity (assesseurs) and their appointment by the Board form an integral part of the Board's work and as such, according to the Staff Regulations, are confidential, such confidentiality helping to ensure independence and objectivity. The role of evaluators is, however, limited, given that their comments form only the basis for the Board's determination of the final marks and assessments.

Finally, the Commission and EPSO underlined that, in accordance with the competition notice, the mark given by the Selection Board for a particular written test reflects the actual performance of the candidate in this test and is not based on the candidate's qualifications. Since this is a competition and not an examination, the performances and merits of candidates are assessed comparatively by the Board.

The complainant's observations

In her observations of 30 July 2004, the complainant reiterated, in summary, her original allegations and claims. In particular, she pointed out that EPSO had failed to reply to her query as to whether the evaluators were aware of the instructions provided to candidates to use supporting documents only as the starting point for answering questions. The complainant considered that if these instructions had not been taken into account by the Selection Board when establishing the evaluation criteria, the role of the evaluators could have been misleading rather than helpful and there could have been an administrative error. She also pointed out that EPSO had failed to answer her query concerning the fact that she had been awarded different marks for questions which were identical in substance (one answered in Greek, the complainant's main language and the other in English, the complainant's second language). She also took the view that the comment on her evaluation sheet, which consisted of one word "good", is too general.

In addition, she pointed out that EPSO’s letter of 27 February 2004 failed to indicate the possibilities of appeal and to give a legal basis for its refusal to re-examine her written test.

The complainant also pointed out that Greek was the main language of only one member of the Selection Board. In this context, she expressed doubts regarding the professional competence of this member who, as the only native Greek speaker on the Board, presumably evaluated her answer in Greek. She added that the said member works in a sector which is not directly related to the field covered by the test. She also stated that she would like to be informed about the competences of the evaluators. The complainant argued that EPSO’s refusal to indicate the professional competence of the evaluators restricted her access to crucial information that would have helped her to bring her case before the Court of First Instance.

The complainant also took the view that the evaluators' comments and suggested marks should not be secret.

Finally, the complainant asked the Ombudsman to inspect her file. She also claimed that EPSO should provide the Ombudsman with information concerning: the evaluators' experience and competence as regards the field of competition; their comments and marks; and the level of knowledge of Greek of the members of the Board.

She also stated in her observations that, in her letter dated 10 February 2004, she did not ask to be informed of the names of the members of the Selection Board.

Further inquiries

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

The request for further information

The Ombudsman therefore forwarded to EPSO the complainant's observations and asked EPSO: (1) to inform him whether the evaluators were provided with a copy of the instructions to candidates; (2) to respond to the complainant's argument that the comment on her evaluation sheet that she had disregarded the documents attached to the test is inconsistent with the instructions given to candidates that those documents should only be used as the starting point for answering the questions; (3) to inform him whether any specific rules or guidelines govern the use by Selection Boards of evaluators with an advisory capacity (assesseurs) and, if so, whether the rules or guidelines are publicly available; (4) to send him a copy of the instructions to candidates, together with a translation into English or French, if available.

The reply

The Ombudsman received a reply sent by the Commission, which stated that it contained the joint views of the Commission and EPSO. The reply referred to the queries submitted by the Ombudsman and also took a stance on the issues raised by the complainant in her observations. A copy of the "Instructions to candidates" in Greek and also copies in French and English, and copies of the written test "d", in Greek, English and French were attached.

The reply contained, in summary, the following comments:

1. As regards the instructions to candidates:

On the day of the written tests, the candidates were given two different documents containing the instructions: a document entitled "Instructions to candidates" and the instructions for the written test itself, which formed an integral part of the test.

The "Instructions to candidates" explained organisational procedures relating to the test (proof of identity, travel expenses, rules of behaviour) and also explained the content of the written test (the same description was given in the notice of competition). Depending on the subject area chosen by the candidates, additional information was provided specifying, for each subject area, the number of options contained in the test and indicating that the candidates should choose one option and answer relevant questions. Therefore, since the "Instructions to candidates" did not contain any specific points that would be useful to evaluate the tests, the evaluators did not receive a copy of those instructions.

Written test "d" also contained a part called "Instructions", which read as follows: "The attached documents are provided to assist you in answering the questions. When answering the questions you should also draw on your own knowledge" (underlining as in the original text).

The evaluators were provided with the copy of the subject of the written test and with other documents (such as the notice of competition).

2. As regards the evaluation of the complainant's performance:

Written test "d" offered four options, from which the candidates had to choose one: option A "Spring European Council"; option B "Innovation policy in a knowledge-based society"; option C "The universities in a Europe of knowledge"; option D "Ethics and governance".

The complainant chose option C, in which two questions were asked.

Question 1: "Answer this question in your main language, taking the attached document 4 as a starting point. Your answer must address both parts of the question. (...) Based on the attached excerpt (document 4): (a) explain the particular role that the universities play in European research; (b) give your own perspective on how new knowledge can benefit the economy and society in Europe".

Question 2: "Answer this question in your second language. The President of the Commission is speaking to journalists at a press conference. Suggest some questions that can be asked on the matters mentioned above, and the possible answers."

Answers to the first question were to be based not only on the documents attached to the test, but also on the candidates' own ideas regarding the content of these documents. As regards the second question, following the notice of competition, its purpose was to test the candidates' ability to draft in their second language.

Therefore, even though the subject of question 1 and question 2 was the same, the evaluation of the written test was not based on the same criteria since the purpose of the two questions was different. Therefore, the marks received for the two questions could logically be different.

The use by the Selection Board of a single word "good" to evaluate the complainant's knowledge of the second language does not mean that the Board failed to provide the complainant with sufficient reasoning.

3. As regards the members of the Board and the evaluators with an advisory capacity (assesseurs):

The information provided by the complainant in her observations that one of the members of the Board works in a sector which is not actively involved in the field of the competition refers to that person's current position. That member of the Selection Board had a perfect command of Greek and he was, therefore, able to evaluate and check the work of the evaluators (assesseurs) as regards all written tests in Greek.

EPSO also pointed out that the evaluators (assesseurs) are chosen on the basis of their competence in relation to the provisions of the notice of competition. According to Article 3 of Annex III of the Staff Regulation, the Selection Board has the sole responsibility regarding the choice of those evaluators. The role of the evaluators is, however, very limited since they may only give advice but cannot decide on the merits of candidates. According to established case-law, the Board may be assisted by evaluators with an advisory capacity (assesseurs) in all cases in which it considers it necessary and the procedural rules are respected provided that the evaluators use the same methods for all candidates and the Board retains the power of final evaluation.

The evaluators give their comments on provisional evaluation sheets which constitute preparatory documents in the work of the Board and, therefore, form an integral part of the Board's deliberations and are confidential. On the basis of such comments, the Board takes the decision on the final marks and comments, which are noted on the final evaluation sheet signed by the chairman of the Board. The Board enjoys a wide discretion regarding the evaluation of the candidates' results and is also entitled not to take into account the evaluators' comments at all.

The reply concluded by noting that an annex to the notice of competition indicates all the possibilities of redress for the candidates if they want to challenge a decision.

The complainant's observations

In her observations, the complainant stated, in summary, the following:

The fact that the information about the possibilities of appeal was included in the notice of competition does not mean that an institution has the right not to inform an individual in detail about such possibilities of appeal.

Although the instruction was given on page 2 of test "d" that, when answering the questions, the candidates should also apply their own knowledge, on page 5 there was an instruction that the attached document should be taken as a starting point. The complainant considers that this means that candidates had to use the attached documents only as the starting point and had to draw on their knowledge of other documents for answering the questions. She also takes the view that when assessing the tests, the Selection Board and evaluators did not take into account these instructions and that these instructions were not sent to the evaluators.

The complainant argued that a Greek member of the Selection Board (named by the complainant) was not working in the field related to the field of the competition and, therefore, was not competent to assess in substance her answer written in Greek. Furthermore, since he was the only member of the Board who had knowledge of Greek, he was not accountable to other members of the Board for his assessment (including his assessment of the comments of the evaluators). She pointed out, therefore, that the assessment of her performance could be made only by one member of the Board, while the candidates who gave their answers in English or French could be assessed by more than one member.

The complainant insisted that she should be provided with information on the professional competence of the evaluators.

Finally, she claimed that EPSO should submit her test for a re-examination by suitably qualified professionals, and if not, it should pay her compensation in the amount of EUR 366 248.79.

THE DECISION

1 Preliminary remarks

1.1 In her observations on the opinion of EPSO and the Commission, the complainant asked the Ombudsman to inspect her file.

1.2 The Ombudsman considers that the information provided by the parties, which includes copies of the complainant's examination papers, the evaluation sheet and the questions of test "d" with supporting documents, is sufficient to enable him to take a decision on the complainant's allegations and claims. The Ombudsman does not therefore consider it useful in the present case to inspect EPSO’s file concerning the complainant's case.

2 Quality of EPSO's answer and related claim

2.1 The complainant took part in the written test of competition COM/A/3/02 for administrators in the field of socio-economic and ethical aspects of research but was not admitted to the oral test. On 10 February 2004, the complainant addressed EPSO, asking that her answer to question 1 of test "d" be re-evaluated by a new team of examiners with qualifications in the field covered by the test. She also asked EPSO to provide her, in summary, with information concerning the professional background of the evaluators of her test "d" and the instructions they had received. She also pointed out a disparity between the marks received for her answers to the same topic in her main language and her second language and contended that the comments on her evaluation sheet were too general.

On 27 February 2004, EPSO replied that after having rechecked her test, the Selection Board confirmed its initial marks. EPSO also explained the general rules for the evaluation of written tests.

In her complaint to the Ombudsman, the complainant alleges that EPSO's reply of 27 February 2004 to her letter of 10 February 2004 was incomplete.

She claims that EPSO should provide her with a thorough answer to her letter of 10 February 2004, and include information about the composition of the Selection Board(2). In her observations of 30 July 2004, the complainant clarified that she does not want to know the names of the members of the Selection Board.

2.2 In addition, the complainant points out in her observations on the opinion of EPSO and the Commission that, in its letter of 27 February 2004, EPSO failed to inform her about the possibilities of appeal. She also challenges the Commission's and EPSO's view concerning the confidentiality of the evaluators’ comments and contests EPSO’s failure to disclose the information she had requested about the professional competence of the evaluators.

2.3 The Ombudsman notes that in its reply of 27 February 2004, EPSO did not refer to the complainant's queries concerning the background of the evaluators, nor did it address the question of the comments and marks on her evaluation sheet and the instructions given to candidates. The Ombudsman finds these omissions regrettable. However, the Ombudsman notes that the Commission and EPSO, in their joint opinion of 10 June 2004 and in their joint reply to the Ombudsman's further inquiries of 21 February 2005, referred in detail to the issues raised by the complainant in her letter to EPSO of 10 February 2004 in the knowledge that the joint opinion and that reply would be forwarded to the complainant as part of the Ombudsman’s normal inquiry procedure.

The Ombudsman concludes, therefore, that EPSO has taken appropriate action in response to this aspect of the complaint, by replying to the complainant's queries during the Ombudsman’s inquiry.

2.4 As regards the substance of the replies given by and on behalf of EPSO, the Ombudsman will examine below, in this part of the decision, each of the issues raised by the complainant in her letter dated 10 February 2004 (except the issue of the instructions, which the Ombudsman will deal with in sections 3.9-3.13 of the decision). The Ombudsman will also examine the complainant's further allegation that EPSO failed to inform her of the possibilities of appeal (to which the Commission and EPSO replied in their response to the Ombudsman's further inquiries).

The complainant’s request for information concerning the evaluators

2.5 In their opinion and reply to the Ombudsman's further inquiries, the Commission and EPSO first stated that the composition of the Selection Board was published in the Official Journal C 40 of 19 February 2003. The Commission and EPSO also argued that, in accordance with the Staff Regulations, the Board is entitled to choose and appoint evaluators with an advisory capacity (assesseurs). However, the role of these evaluators is very limited since they may only give advice but cannot decide on the merits of candidates, which is the responsibility of the Board. They are chosen on the basis of their competence in relation to the provisions of the notice of competition. The decision to turn to evaluators with an advisory capacity (assesseurs) and their appointment by the Board form an integral part of the Board's work and are, as such, according to the Staff Regulations, confidential.

2.6 The Ombudsman takes the view that it is necessary to strike a balance between the general principle of openness and the legitimate needs of confidentiality in the work of Selection Boards. The Ombudsman understands that the current practice of EPSO is to publish the names of members of Boards, but not to identify or provide any other information concerning the evaluators. Taking into account the case-law concerning the role of evaluators, to which EPSO and the Commission make reference, the Ombudsman does not consider that EPSO’s current practice is obviously unreasonable as regards the balance between the two interests in question. He does not, therefore, find any instance of maladministration as regards this point. However, the Ombudsman notes that the Community institutions’ views as to the correct balance between openness and the legitimate needs of confidentiality in the work of Boards have evolved in the direction of giving greater weight to openness, as is illustrated by the decision to publish the names of members of Boards. The Ombudsman therefore suggests that EPSO consider whether it might be appropriate in future also to identify evaluators, possibly once their work has been completed. A further remark will be made below in this regard.

The comments on the evaluation sheet and the marks received

2.7 The Commission and EPSO state that, although the two questions of the written test to which the complainant had to answer respectively in Greek and in English were in substance the same, the evaluation criteria were different and, therefore, the marks received for the two questions could logically be different: the purpose of the question to be answered in the second language was to test the candidates' ability to draft in that language whilst the question to be answered in the main language was designed to test the candidates' substantive knowledge.

The Commission and EPSO also take the view that the use by the Board of the single word "good" to evaluate the complainant's knowledge of the second language (English) does not mean that the Board failed to provide the complainant with sufficient reasoning.

2.8 The Ombudsman has examined the evaluation sheet submitted to him by the complainant.

He notes that the complainant received a mark of 11.6 (maximum mark 32) for her test in Greek, accompanied by the following comments made by the Selection Board on her evaluation sheet: (1) as regards the knowledge of the field: "Regrettably little knowledge, disregarding the given documents, failure to address the issues, short sighted and simplistic approach"; (2) as regards comprehension skills and ability to analyse and summarise: "Did not grasp the real issues. But average ability to summarise"; (3) as regards ability to draft in the main language: "Elementary".

For her test in English designed to examine her ability to draft in the second Community language, the complainant received a mark of 5.2 (maximum mark 8) and the Board made the following comment on her evaluation sheet: "Good".

In total, for her tests taken in Greek and in English, the complainant received a mark of 16.8 out of 40, accompanied by the following overall evaluation of the test: "Superficial and simplistic approach, failing to grasp the issues surrounding the topic, far too generic answers and lack of personal ideas".

2.9 As regards the complainant's test in English, the Ombudsman notes that the comment “good” is laconic, but that it is not inconsistent with the mark awarded and that the complainant does not appear to have put forward any arguments contesting the mark awarded to her for the test in English.

2.10 As regards the complainant's test in Greek, the Ombudsman considers that the comments made adequately inform the complainant of the Selection Board’s reasons for the mark awarded. The Ombudsman therefore finds no maladministration as regards this point.

The information concerning the possibilities of appeal

2.11 The Ombudsman notes, as was correctly pointed out by the Commission and EPSO, that the possibilities to appeal against EPSO's decisions were indicated in the notice of competition (Annex "Requests for Review - Appeal Procedures - Complaints to the European Ombudsman")(3). The Ombudsman also observes that the notice of competition is intended to be the primary source of information to candidates about the competition and its procedures. The Ombudsman therefore considers that, although it could have been helpful for EPSO to reiterate in its reply of 27 February 2004 to the complainant's letter the information that had already been given in the notice of competition about the possibilities of appeal, EPSO was not obliged to do so. Moreover, the Ombudsman notes that the complainant appears to be fully informed about the possibilities of appeal. The Ombudsman does not find, therefore, any instance of maladministration as regards this aspect of the complaint.

3 Allegedly unfair and mistaken evaluation and related claim

3.1 The complainant alleges that the evaluation of her written test was unfair and mistaken.

In support of her allegation, she argues that: (1) the composition of the Selection Board was irregular (only one member of the Board had knowledge of Greek and he was not holding a post in a field relevant to the competition); (2) the instructions to candidates were misleading and the evaluators were not aware of them.

The complainant claims that her written test should be re-evaluated by a new team of examiners. In her observations, the complainant develops her claim, stating that EPSO should pay her compensation if it does not proceed with the re-evaluation of her test.

In her observations, she also states that EPSO did not give reasons as to why it did not re-examine her test.

3.2 The Commission and EPSO informed the Ombudsman, in their reply of 21 February 2005, that the member of the Selection Board to whom the complainant referred in her observations, stating that he does not deal in his work with the field of the competition, does not indeed do so at present. The Commission and EPSO, in their reply of 21 February 2005, also point out that this member of the Board has a perfect command of Greek and was thus able to evaluate and check the work of the evaluators with an advisory capacity (assesseurs) of all written tests in Greek. However, according to the Commission and EPSO, the final assessment of the complainant's performance was submitted to the deliberation of the entire Board, which took the final decision on the complainant's results and the chairman of the Board confirmed these results by signing the evaluation sheet.

In their reply of 21 February 2005, the Commission and EPSO also explain that the candidates received, as a separate document, the instructions on procedural organisation of the tests. They also received the instructions on how to deal with test "d", which were included in the test itself. In the same reply, the Commission and EPSO refer in detail to these instructions. They also sent to the Ombudsman a copy of the instructions on procedural organisation of the tests and a copy of the written test "d" (composed of four subjects, each with two questions), in three linguistic versions, namely Greek, French and English. The Commission and EPSO state that the evaluators were provided with a copy of the subject of the written test together with other documents (including the notice of competition). The Commission and EPSO take the view that, according to the instructions on how to deal with test "d", the answers were to be based not only on the documents attached to the test, but also on the candidates' own ideas regarding the content of these documents.

Finally, in their opinion of 10 June 2004, the Commission and EPSO stated that, at the complainant's request for review addressed to the Selection Board, the latter did check the complainant's paper. However, in light of the dual marking already performed, the Board did not consider it necessary to mark the test again. Only the Board may decide to have a test marked for a third time and a request of a candidate to that effect does not oblige the Board to do so.

The competence of the persons carrying out the assessment

3.3 As a preliminary point, the Ombudsman recalls that under the third paragraph of Article 3 of Annex III to Staff Regulations, the Selection Board may, for certain tests, be assisted by one or more examiners serving in an advisory capacity (assesseurs).

3.4 Furthermore, the Ombudsman recalls that, according to established case-law, Selection Boards may have recourse to the assistance of evaluators whenever they consider that necessary. As also noted by the Commission and EPSO, there is no irregularity provided that the methods of marking do not differ from one candidate to another and the Board retains the power to make the final assessment(4).

3.5 Moreover, the Selection Board must be composed in such a way as to guarantee its capacity objectively to assess the candidates' professional qualities as evidenced from their performances in the tests(5). The appointing authority has wide discretion in assessing the abilities of the persons whom, pursuant to Article 3 of Annex II of the Staff Regulations, they are called on to appoint as members of the Board(6).

3.6 Referring to the above judgement(7), the Ombudsman points out that even in the cases of competitions for "linguistic" positions, the Court of First Instance has stated that it is not necessary for each member of the Board to have a perfect knowledge of the language of the test they are to evaluate. Moreover, the Ombudsman notes that the aim of the competition in question in the present case was not to recruit individuals from professions related to languages, but rather to recruit administrators specialised in the field of socio-economic and ethical aspects of research and technological development activities.

3.7 The Ombudsman also takes the view that although the above case-law implies that members of the Selection Board must have knowledge of the field of competition, this does not imply that they must necessarily currently be working in posts related to that field.

3.8 The Ombudsman considers, therefore, that on the assumption that the complainant is correct in her assertion that the Selection Board had only one member with knowledge of Greek and that, moreover, he was not working in the field of the competition, those facts cannot be regarded as an irregularity that affected the results of the competition.

The instructions on how to deal with test "d"

3.9 The Ombudsman recalls, first, that according to established case-law, the Selection Board has wide discretion as regards the arrangements and detailed content of the tests provided for within the framework of the competition(8).

3.10 The Ombudsman has carefully examined test "d", copies of which were sent to him in Greek, English and French by the Commission and EPSO (i.e.: pages 1 and 2 with the heading "Instructions" and pages 3, 4, 5 and 6, each with a heading referring to one subject of the test (page 3-Option A, Spring European Council; page 4 -Option B, Innovation Policy; page 5 - Option C, Universities in the Europe of knowledge; page 6 - Option D, Ethics and governance). Each subject had two questions.

He notes that the instructions on how to deal with the test were included in the test itself and were placed as follows:

1) The two separate pages with the heading "Instructions", which preceded the questions, read, inter alia, as follows: "The attached documents are provided to assist you in answering the questions. When answering the questions you should also draw on your own knowledge";

2) The introductory sentence to the first question on each page with the heading referring to the subject of the test included the following: "(...) answer this question in your main language, taking the attached document 4 as a starting point (...)";

3) The wording of the first question itself contained the following instruction: "(...) Based on the attached excerpt (...) explain (...)".

The Ombudsman understands from the above that the candidates were invited to refer to the attached documents and also to offer their own proposals to address the main issues.

3.11 The Ombudsman notes the slight imprecision resulting from the fact that there were three non-identical, albeit consistent instructions, to candidates. He considers that such a slight imprecision cannot be regarded as a substantive error capable of affecting the results of the competition.

3.12 As regards the evaluators’ knowledge of the instructions, the Ombudsman understands from EPSO's explanation that the evaluators were provided with all three of the instructions referred to in paragraph 3.9 above. Moreover, given the comment on the complainant's evaluation sheet as regards her knowledge of the field (test in Greek) that she "disregarded the given documents" and the final comment that her answers demonstrated a "lack of personal ideas", it appears that the evaluators knew that the candidates should have to refer to the attached documents and also to offer their own proposals to address the main issues.

3.13 On the basis of the available information, the Ombudsman does not consider that the complainant has succeeded in demonstrating either that the instructions were misleading in nature or that the evaluators did not know about them.

Re-evaluation of the complainant’s test

3.14 On the basis of the explanation provided by the Commission and EPSO, the Ombudsman understands that, following the complainant's request, the Board reviewed the complainant's test, but in light of the dual marking already performed, and the consistency of the marks awarded on each occasion, it did not find any reasons to mark the test for a third time.

3.15 The Ombudsman recalls that, as established by Community case-law(9), in assessing the results of tests, the Selection Board enjoys a wide discretion.

3.16 Furthermore, the Ombudsman points out that the notice of competition provides that the candidate can submit a request for review by sending a letter setting out the reasons for that request and that the Board will reply as soon as possible. However, the Ombudsman is not aware of any rule or principle that would require a remarking of the test by a new team of evaluators.

3.17 In light of the above, the Ombudsman does not find any maladministration as regards this aspect of the complaint. The complainant's claim cannot, therefore, be sustained.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO. The Ombudsman, therefore, closes the case.

The President of the Commission and the Director of EPSO will be informed of this decision.

FURTHER REMARK

The Ombudsman notes that the Community institutions’ views as to the correct balance between openness and the legitimate needs of confidentiality in the work of Selection Boards have evolved in the direction of giving greater weight to openness, as is illustrated by the decision to publish the names of members of Boards. The Ombudsman therefore suggests that EPSO consider whether it might be appropriate in future to also identify the evaluators, possibly once their work has been completed.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman points out that the parties’ contributions to the inquiry indicate that they have understood this allegation as referring primarily to information about the evaluators.

(2) The Ombudsman points out that the parties’ contributions to the inquiry indicate that they have understood this allegation as referring primarily to information about the evaluators.

(3) OJ C 177 A/33 of 25 July 2002.

(4) See Case T-33/00 Martinez Paramo and Others v Commission (2003) II-541, paragraph 58; Case T-153/95 Kaps v Court of Justice (1996) II-663, paragraph 26.

(5) See Case T-156/89, Mordt v Court of Justice (1991) II-00407, paragraph 105 and the case-law cited there.

(6) Supra, paragraph 107.

(7) Supra, paragraph 106 and also: Case T-160/99 Svantesson, Hellsten, Haegg v Council (2001) IA-00175, paragraph 33.

(8) Supra, paragraph 121. See also, Case T-146/99 Teixeira Neves v Court of Justice (2000) IA-00159, paragraphs 37 and T-173/99 Elkaim, Mazuel v Commission (2000) IA-00101, paragraph 35.

(9) See Case T-53/00 Angioli v. Commission, judgement of 23 January 2003, paragraph 91-94 and the case-law cited there.