The background to the complaint

1. The complainant is an Italian citizen who took part in competition EPSO/AST/111/10 for assistants in the secretarial field.

2. The complainant succeeded in the computer-based pre-selection tests and was invited to take part in the assessment centre exercises. The assessment exercises consisted of four tests, namely, (a) a structured interview; (b) an in-tray exercise; (c) a practical test involving the preparation and/or processing of an MS Word document; and (d) a practical test to assess drafting skills (particularly spelling, syntax and grammar). While tests (a) and (b) were meant to assess the candidates' general competencies in the field, tests (c) and (d) aimed to evaluate the candidates' job-specific knowledge (specific competencies).

3. On 8 August 2011, EPSO informed the complainant that he did not obtain the required overall pass mark in tests (c) and (d). Thus, EPSO could not place his name on the reserve list of successful candidates. EPSO also provided the complainant with a 'competency passport', which indicated the overall marks he obtained for the assessment centre exercises, as well as a breakdown of marks in respect of the tests aimed at assessing general and specific competencies[1]. The 'competency passport' included a comprehensive written evaluation of the complainant's general competencies. However, under the headings of "practical drafting skills test" and "word processing test" no comments were provided and only numerical marks were given.

4. On 10 August 2011, the complainant requested via the EPSO website copies of his marked tests (c) and (d). On 7 September 2011, the complainant received from EPSO copies of his answers in the two tests. However, the task sheets for the tests and the markings of the assessors were not provided. The complainant therefore contacted EPSO again on 8 September 2011 and stressed that without the task sheets and the markings he was unable to assess why his answers were not considered sufficient to pass the two tests.

5. On 26 September 2011, EPSO replied that the correction criteria and the corrections carried out by the markers/assessors were part of the confidential work of the Selection Board and were therefore not accessible to candidates.

6. On 6 October 2011, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

7. The Ombudsman opened an inquiry into the following allegation and claim:

Allegation

EPSO failed to provide the complainant with sufficient information concerning the correction of his practical tests c) and d).

Claim

EPSO should disclose the task sheets for the tests and the marks given by the assessors, or any other relevant documents or information which would enable him to understand the Selection Board's decision.

The inquiry

8. On 6 December 2011, the Ombudsman requested EPSO to submit an opinion on the complainant's allegation and claim by 29 February 2012. In his letter, the Ombudsman pointed out that, in the 'competency passport', the assessment of general and specific competencies appeared to be carried out in different ways. The Ombudsman therefore asked EPSO to explain, in its opinion, how the commitments that EPSO had undertaken following the Ombudsman's own-initiative inquiry OI/5/2005/PB were satisfied in relation to the assessment of specific competencies.

9. EPSO sent its opinion on 13 April 2012. The opinion was forwarded to the complainant with an invitation to make observations, which the complainant sent on 25 May 2012.

The Ombudsman's analysis and conclusions

Preliminary remarks

10. The Ombudsman notes that other participants in competition EPSO/AST/111/10 brought several complaints to the Ombudsman and raised allegations similar to the one in the present case[2].

11. In his inquiries in those cases, the Ombudsman carried out inspections of the relevant documents on EPSO's file. The inspections allowed the Ombudsman to acquire general information on the way practical tests (c) and (d) were assessed, how such assessments were documented and how they were then communicated to candidates[3].

12. The information acquired appears to be relevant also for the present case. Therefore, whenever necessary for his assessment of the complainant's allegation, the Ombudsman will make reference to the factual information obtained as a result of the inspections in those related cases.

A. Allegation that EPSO failed to provide the complainant with sufficient information and related claim

Arguments presented to the Ombudsman

13. In his complaint to the Ombudsman, the complainant alleged that EPSO failed to provide him with sufficient information concerning the correction of his practical tests c) and d). The complainant pointed out that EPSO's refusal to provide the corrections of his tests prevented him from assessing the reasons why he failed to obtain the required pass mark and therefore from having recourse to the available remedies within the applicable deadlines.

14. The complainant further pointed out that EU institutions are subject to stringent rules on transparency and access to documents set out in Regulation 1049/2001 and that recruitment procedures cannot be excluded from those rules.

15. Finally, he argued that the EU institutions should set an example of public service. However, by recruiting officials through a non-transparent recruitment procedure, the Union fails to live up to the required standards and compromises its image in the citizens' eyes. He claimed that EPSO should disclose the task sheets for the tests and the marks given by the assessors, or any other relevant documents or information which would enable him to understand the Selection Board's decision.

16. In its opinion, EPSO recalled that, in case of decisions taken by a Selection Board in a competition, the general obligation to state the reasons on which a decision is based must be reconciled with the need to respect the secrecy surrounding the proceedings of Selection Boards, as required by Article 6 of Annex III of the Staff Regulations. EPSO recalled that, according to the case-law of the Court of Justice, this secrecy was introduced with a view to guaranteeing the independence of Selection Boards and the objectivity of their proceedings, while protecting them from all external interferences and pressures. Observance of this secrecy therefore precludes the disclosure of any factor relating to individual or comparative assessments of candidates, including correction methods and marking criteria[4].

17. EPSO further pointed out that the comparative assessment performed by the Selection Board is reflected in the marks given to the candidates. As a consequence, the communication of those marks is an adequate justification of the Selection Board's decisions. The Board is not required to specify the candidates' answers that were deemed insufficient or to explain why these responses were considered insufficient[5].

18. As regards the question raised by the Ombudsman in the letter opening his inquiry and mentioned in paragraph 8 above, EPSO pointed out that, subsequent to the Ombudsman's decision in his own-initiative inquiry OI/5/2005/PB, it had introduced new competition procedures. In particular, it had been using a standard 'assessment centre' model, based on competencies, in all competitions launched since 2010.

19. While under the previous system candidates had to pass in strict order one or more written tests and an oral test, all of which were marked separately and were potentially eliminatory, the 'assessment centre' is considered a single competition stage. In particular, in the 'assessment centre', candidates' general and specific competencies are tested across the various exercises. The competencies, which can be assimilated to the test assessment criteria of the old type competitions, are then scored in an aggregate manner, by compiling the results obtained for each competency in the different exercises.

20. EPSO also pointed out that the reform of the competition procedures has been accompanied by the introduction of (i) a new, improved model for notices of competition, and (ii) a Guide to Open Competitions ('the Guide'), which contains the common rules applicable to all competition procedures. These documents provide candidates with detailed information about the nature of the different tests and exercises which make up a competition. Each notice of competition also clearly indicates which competencies are assessed in which tests and exercises, and how they are marked. The candidates' required competencies are defined in detail in the Guide.

21. EPSO added that the notices of competition and the Guide make provision for a new document format for communicating candidates' assessment centre test results, namely, the 'competency passport'. This contains: (a) a general description of the competency framework; (b) the total mark obtained by the candidate, along with an overview of the candidate's main strengths and weaknesses, in graphic form; (c) for each competency assessed, the partial marks awarded by the Selection Board and a description of the Board's main conclusions on the candidate's performance.

22. In the present case, EPSO provided the complainant with copies of his answers in the practical tests (c) and (d). Moreover, it provided him with his 'competency passport' containing a detailed evaluation of his performance at the assessment centre. This document included his 'competency profile', a 'competency overview' and his 'relative strengths and weaknesses' in all the seven general competencies assessed. The passport also indicated the partial marks obtained in practical tests (c) and (d).

23. In light of the foregoing, EPSO considered that the information provided to the complainant with regard to his practical tests (c) and (d) was sufficient and in full compliance with the applicable legal framework.

24. In his observations, the complainant took note of the case-law quoted by EPSO. He stressed, however, that invoking secrecy in order to ensure objectivity while assessing a technical examination testing Microsoft Word skills of candidates for secretarial positions seemed to be disproportionate. He added that the refusal to disclose correction methods and marking criteria gave the impression that the selection procedure is not reliable.

The Ombudsman's assessment

25. At the outset, the Ombudsman points out that, in line with the case-law of the Union courts[6], the Selection Board in the present case complied with its legal obligation to justify its decision by providing the complainant with the marks obtained in the written tests and with his unmarked examination papers.

26. However, the fact that the Selection Board complied with its legal obligations does not dispense EPSO from respecting its own public commitments to act in accordance with principles of good administration, made in the framework of the Ombudsman's own-initiative inquiry OI/5/2005/PB[7]. In reply to the Ombudsman's above-mentioned own-initiative inquiry, EPSO made a commitment to use in the future a model evaluation sheet which contains, on the one hand, (a) the evaluation criteria set out in the published notices of competition (including the various elements eventually evaluated by the board for each criterion) and the level of performance attained (ranging from excellent to insufficient), and, on the other, (b) in addition to the global mark, the partial marks awarded by the board for each criterion specified in the notice of competition.

27. From EPSO's opinion, the Ombudsman understands that, in respect of the 'new style' competitions the Office organises as from 2010, the competency passport which each candidate taking part in the assessment centre tests now receives replaced the evaluation sheets used previously. The 'evaluation criteria' referred to previously in the evaluation sheet now appear to be included in the competency passport as 'competencies'. In addition to the global mark, the competency passport should also include partial marks for each competency assessed. Moreover, the competency passport should provide the Selection Board's main conclusions on the candidate's performance.

28. The Ombudsman welcomes EPSO's initiative to provide candidates with a structured and complete document, namely, the competency passport, which contains information regarding the candidates' performance in all the assessment centre tests.

29. However, in the present case, while the complainant's competency passport contained the Selection Board's detailed assessment of his general competencies, including partial marks awarded for each general criterion/competency evaluated, it only provided the final mark with respect to practical tests (c) and (d). No specific 'competencies' assessed in these tests were mentioned, and no partial marks corresponding to the specific competencies assessed in tests (c) and (d) were included.

30. The Ombudsman considers, therefore, that the information provided in the complainant's competency passport as regards tests (c) and (d) cannot reasonably be considered to replace the evaluation sheet which EPSO agreed to provide candidates with in the context of the Ombudsman's aforementioned own-initiative inquiry. Moreover, despite EPSO's argument, in reply to the complainant's request for further information concerning tests (c) and (d), that it provided sufficient information, and, more specifically, the marks and the copies of his answers in the practical tests (c) and (d), the Ombudsman does not consider that this information adequately meets the standard defined in his own-initiative inquiry OI/5/2005/PB.

31. EPSO explained in its opinion that the proceedings of Selection Boards are secret and that it is precluded from disclosing any factor relating to individual or comparative assessments of candidates, including correction methods and marking criteria.

32. Should EPSO wish to argue that it is not responsible for its failure to comply with its own commitment because it cannot oppose the views of the Selection Board, which is independent, the Ombudsman points out that Selection Boards are indeed appointed by EPSO and must comply with the rules and/or procedural guidelines which EPSO declares to be binding upon them. The Selection Boards' wide margin of discretion does not go so far as to allow manifest errors of appreciation or failure to respect the legal or regulatory framework that the boards must observe and apply. The principle of the Selection Boards' independence does not, in the Ombudsman's view, exclude that EPSO can, and indeed should, provide the Selection Boards it appoints with procedural guidelines. In fact, this is how EPSO should proceed in respecting and implementing in an appropriate manner its public commitment towards the European Ombudsman and, therefore, towards candidates.

33. Furthermore, during the inspections of the file in the related cases, the Ombudsman's services noted that the markers' evaluation sheets concerning practical tests (c) and (d) for competition EPSO/AST/111/10 mention in detail the evaluation criteria/competencies which were assessed and indicate the partial marks awarded for each criterion/competency. Therefore, given that evaluation criteria and partial marks were used, the Ombudsman does not see for which valid reasons EPSO decided not to include them in the competency passport and thus disclose them to candidates. The Ombudsman cannot help noticing that EPSO's 'old style' competitions for assistants (organised before 2010) also included 'specific knowledge' or practical tests aimed at assessing candidates' drafting skills and their ability to prepare/process an MS Word document and that back then EPSO used to provide to candidates a detailed evaluation sheet containing the assessment criteria, as well as the breakdown of candidates' marks, in addition to their global mark.

34. Finally, it is not clear why disclosing the evaluation criteria/competencies and the partial marks concerning the "general competency tests" does not interfere with the secrecy of the Selection Board's proceedings, while disclosing the evaluation criteria/competencies and partial marls in relation to "technical tests" could.

35. In light of the above, the Ombudsman takes the view that, by failing to indicate in the competency passport the evaluation criteria/competencies assessed in respect of the practical tests and the partial marks for these criteria/competencies, EPSO failed to comply with the commitment it made in the framework of his own-initiative inquiry OI/5/2005/PB. This constitutes an instance of maladministration. In such situations, the Ombudsman's Statute requires the Ombudsman to seek, to the extent possible, a friendly solution with the institution concerned to eliminate the instance of maladministration and satisfy the complaint. In the present case, this is however not justified for the following reasons.

36. In the course of inspecting the file in related cases concerning competition EPSO/AST/111/10, the Ombudsman's services were informed that a general database[8] now exists, which is the electronic tool that generates the competency passport for each candidate at the end of the evaluation. With the exception of the global marks, the Selection Board did not include in that database any comments concerning the candidates' performance in practical tests (c) and (d). In addition, the inspections carried out in the related cases showed that EPSO did not have in its possession (i) any written records of communications between its services and the Selection Board of the competition, and/or (ii) any internal documents/written assessments drafted by the Selection Board concerning the candidates' practical tests (c) and (d). The Ombudsman also recalls that the markers' evaluation sheets mentioned above at paragraph 33 are mere preparatory documents which markers submit to the Selection Board, whereas the final assessment of the candidates' tests is made by the Selection Board only.In light of the foregoing, the Ombudsman considers that making a proposal for a friendly solution suggesting that EPSO grant the complainant access to the Selection Board's evaluation sheets of his tests (c) and (d) would be devoid of purpose because these documents do not exist.

He will therefore close the case with a critical remark.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

By failing to record and indicate, in the appropriate evaluation sheets or in the competency passport, (a) the evaluation criteria/competencies assessed in respect of the practical tests, and (b) the partial marks for these criteria/competencies, EPSO failed to comply with the commitment it made in the framework of the Ombudsman's own-initiative inquiry OI/5/2005/PB, and thus committed an instance of maladministration.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 24 July 2013

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[1] According to the 'competency passport', the complainant scored 6 points out of 20 in test (c) and 6 points out of 10 in test (d). Thus, his total score for practical tests (c) and (d) was 12 points out of 30, while the pass mark was 15 out of 30.

[2] See the Ombudsman's decisions closing his inquiries into complaints 2022/2011/RT and 2430/2011/RT. Two further cases deal with similar allegations but concern a different competition for assistants in the secretarial field (EPSO/AST/117/11). These cases are complaints 1633/2012/OV and 1674/2012/OV.

[3] See in particular the inspections carried out in cases 2022/2011/RT and 2430/2011/RT.

[4] EPSO made reference to cases 89/79 Bonu v Council [1980] ECR 553, paragraph 5 and C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paragraph 24.

[5] C-254/95 Parliament v Innamorati [1996] ECR I-3423, paragraph 29, F-16/07 Dragoman v Commission [2008] ECR FP-I-A-1-00139, paragraph 63.

[6] See Cases F-73/06 Van Neyghem v Commission [2007] ECR-SC I-A-1-441 and II-A-1-2515, paragraph 77 and T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 22, according to which, providing candidates with their marks and with a copy of the test script as they drafted it, albeit without corrections, together with the communication of the marks, constitutes a sufficient statement of reasons for decisions of selection boards and enables the Union courts to carry out a judicial review appropriate to disputes of that kind. It is not required to clarify the answers of candidates considered to be insufficient or to explain why these answers were considered insufficient.

[7] See decision on complaint 2050/2011/RT, available at: http://www.ombudsman.europa.eu/en/cases/home.faces

[8] According to EPSO, data concerning the participation of a candidate in the Assessment Centre phase of a given EPSO competition (for assistants, administrators or other fields) are recorded in a database entitled 'Assessment Manager'.