The background to the complaint

1. This case concerns the information which the European Personnel Selection Office ('EPSO') provides to candidates in open competitions. The complainant, an Italian national, took part in Open Competition EPSO/AD/137/08, which aimed to establish a reserve list from which to recruit lawyer-linguists having Italian as their main language[1]. The competition was divided into two channels: a 'Court of Justice' channel and a 'Parliament/Council' channel. The complainant chose the 'Parliament/Council' channel, for which the competition envisaged 11 successful candidates.

2. The complainant succeeded in the admission tests and, on 13 March and 30 April 2009, EPSO invited her to take the written tests on 29 May 2009. In accordance with point II.B.3 of the notice of competition, the written tests consisted of three parts, namely, tests a), b) and c). Test a), which is at the origin of the present complaint, consisted in the correction of a legal text, written in Italian, containing errors of grammar, syntax, style and legal terminology. The purpose of the test was to check the perfect command of the candidate's main language (Italian for the complainant) and his/her capacity to express himself/herself in legal terminology. The pass mark for written test a) was 20 out of 40.

3. On 7 October 2009, EPSO informed the complainant that the mark she obtained in written test a) was 19 out of 40. Since the complainant did not obtain the pass mark, her written tests b) and c) were not marked[2] and she was excluded from the open competition.

4. By e-mail of 16 October 2009, the complainant asked EPSO to grant her access to her marked test. On 29 October 2009, EPSO forwarded to the complainant an unmarked copy of her test a) together with the Selection Board's evaluation sheet.

5. The evaluation sheet contained a short description of the content of the test (correction of a legal text in Italian containing errors of grammar, syntax, style and legal terminology), the purpose of the evaluation of the test (namely, assessing that the candidate had a perfect command of her main language and was able to express herself in legal terminology), the mark given by the Selection Board and the latter's global assessment of the candidate's test. As regards this assessment, the evaluation sheet contained the following four possibilities:

"Excellent correction

Excellent ability to detect errors. Excellent comprehension and command of Italian legal expressions.

Good correction

Good command of the Italian language. Only slight quality control required under real working conditions.

Satisfactory correction

A quality control and modifications required under real working conditions.

Insufficient correction

Text as revised does not reach the standard required."

In the complainant's case, the Selection Board ticked Insufficient correction.

6. On 30 October and on 9 November 2009, the complainant wrote back to EPSO. She emphasised that what she requested was a copy of her test a) with corrections and argued that, in light of the principle of transparency, she was entitled to obtain this information, namely, the reasoning behind the Selection Board's decision only to allocate 19 points out of 40 to her test a).

7. By e-mails of 3 and 17 November 2009, EPSO informed the complainant that, when dealing with her request, it respected the principle of transparency and the rules governing access to documents. However, due to the confidential nature of the work of the Selection Board[3], EPSO could not disclose more precise information concerning the complainant's test a), such as providing her with access to the corrected copy and/or any further information.

8. The complainant was not satisfied with the above reply and, therefore, turned to the Ombudsman.

The subject matter of the inquiry

9. The Ombudsman opened an inquiry into the complainant's allegation that EPSO wrongly failed to provide her with the requested clarifications concerning the marks she was awarded. The Ombudsman's inquiry also concerned the complainant's claim that EPSO should provide her with relevant information to enable her to understand the assessment made by the Selection Board, the errors she had committed, and to know the correct answers, and the criteria and evaluation method used by the Selection Board.

10. When opening the present inquiry, the Ombudsman further requested EPSO to answer the following questions:

(1) Given the nature of the competition (lawyer-linguists) and, more specifically, the written test at issue (correction of a text containing errors), could EPSO indicate whether the Selection Board members assessing written test a) were provided with a model of a 'correct test'?

(2) If no model of a correct test was given, could EPSO explain whether the assessors were given specific instructions concerning marking and evaluation criteria? Did they receive instructions in relation to the seriousness of errors and how to evaluate such errors in relation to each criterion which was taken into consideration?

(3) Could EPSO clarify: (i) how the assessment of the complainant's test set out on the evaluation sheet matches the evaluation and marking criteria; and (ii) the breakdown of the marks awarded for each criterion?

(4) Since EPSO has justified its position in light of the confidentiality of the proceedings of the Selection Board, could EPSO explain how the interest of confidentiality is balanced against the right to good administration protected under Article 41 of the EU Charter of Fundamental Rights and, more specifically, the right of an individual to have access to his/her file and the obligation of the administration to give reasons for its decisions? EPSO should also explain how its position in the present procedure can be reconciled with the answer it gave to the Ombudsman's draft recommendation in the European Ombudsman's own-initiative inquiry OI/5/2005/PB where EPSO said it would propose that selection boards use a model evaluation sheet which contains (a) the evaluation criteria set out in the published notice of competition, including the various elements eventually evaluated by the board for each criterion, and the level of performance attained, and, (b) in addition to the global mark, the partial marks awarded by the board for each criterion specified in the notice of competition.

Additionally, the Ombudsman asked EPSO to forward to him a copy of (i) the guidelines and/or instructions given to the members of the Selection Board concerning marking and evaluation criteria, if any, and of (ii) the evaluation sheet, or any other relevant document containing the breakdown of the mark awarded for the complainant's test a)[4].

The inquiry

11. On 12 March 2010, the Ombudsman invited EPSO to comment on the complainant's allegation and claim. On 25 June 2010, EPSO sent its opinion, which was forwarded to the complainant. On 30 July 2010, the complainant sent her observations on EPSO's opinion.

The Ombudsman's analysis and conclusions

A. EPSO's alleged failure to provide the requested clarifications regarding the marking of the complainant's written test a) and related claim

Arguments presented to the Ombudsman

12. In support of her allegation, the complainant argued that EPSO should at least provide her with an evaluation grid in order to show that the test in question, namely, test a) of Open Competition EPSO/AD/137/08, was actually corrected.

13. In its opinion, EPSO described the content and the purpose of written test a). Candidates were requested to correct a legal text, written in Italian, containing errors of grammar, syntax, style and legal terminology. The purpose of the test was to check the perfect command of the candidate's main language (Italian for the complainant) and the candidate's capacity to express himself/herself in legal terminology.

14. EPSO explained that the Selection Board decided to use an existing legal text which was modified, adding a certain number of errors which candidates had to identify and correct. Each test paper was marked anonymously by at least two assessors who received guidelines from the Selection Board. These guidelines, like any instructions given by the Selection Board to assessors, form an integral part of the Board's work which, as provided in the Staff Regulations, is covered by the confidential nature of the Board's deliberations.

15. As described by the above-mentioned guidelines, the Selection Board decided to award a certain number of points with regard to each correction made by candidates. The number of points differed, depending on the nature of the errors, such as errors relating to grammar, syntax, style and legal terminology, set out in point II.B.3 of the notice of competition, their seriousness and the quality of each correction. The Selection Board further provided for "penalty" points in the event of bad corrections and "bonus" points for corrections which improved the original text. In order to comply with the notice of competition, which provided for a mark between 0 and 40 points for test a), the Selection Board drew up a conversion table in which the points given by the Selection Board corresponded to an aggregate mark ranging from 4 to 40 points.

16. After checking the assessors' comments, the Selection Board set out the results for each candidate's test a). Each result was given on the evaluation sheet which was forwarded to those candidates who requested it. With regard to the complainant's test a), the Selection Board judged it to be unsatisfactory, in comparison to other candidates' performances. EPSO added that the evaluation sheet forwarded to the complainant contained not only the aggregate mark awarded to her test a), namely, 19 points out of 40, but also an explanation thereof, namely, that the "text as revised does not reach the standard required".

17. Furthermore, EPSO stressed that, in view of the nature of test a), and the interdependence of the relevant skills and abilities, the Selection Board did not consider it appropriate to award marks for each criterion in addition to the overall mark allocated to each test paper. There was no provision in the notice of competition requiring such partial marks to be awarded. The approach taken by the Selection Board to award an overall mark for each test was, therefore, perfectly in accordance with the notice of competition. Furthermore, and as consistently held by the Union courts, it was also in line with the wide discretion which Selection Boards enjoy as regards how tests are marked.

18. As regards the Ombudsman's question as to how the principle of the confidentiality of the proceedings of the Selection Board can be balanced with the right to good administration protected under Article 41 of the EU Charter of Fundamental Rights and, more specifically, the right of an individual to have access to his/her file and the obligation of the administration to give reasons for its decisions, EPSO invoked the case-law of the Union courts, according to which candidates in an open competition cannot invoke the general principle of transparency to challenge the applicability of Article 6 of Annex III to the Staff Regulations concerning the confidentiality of the Selection Boards' proceedings.

19. Additionally, EPSO then commented on its obligation to give reasons and argued that the case-law of the Union courts recognises that the obligation to give reasons for an individual decision aims to provide the person concerned with the information necessary to determine whether or not the decision is well-founded. In this regard, EPSO emphasised that, in accordance with the case-law of the Union courts, the provision of the mark obtained by a candidate in a given test constituted an adequate statement of reasons for the decision of the Selection Board. In the present case, EPSO informed the complainant of the evaluation given by the Selection Board to her test a) and indicated to her that she did not obtain the number of points set as a threshold for admission to the next stage of the competition.

20. Again with regard to decisions by a Selection Board, EPSO emphasised that the obligation to give reasons must, however, be reconciled with the need to maintain the confidentiality of its proceedings. This excludes the disclosure of the positions adopted by Selection Board members and of any elements relating to personal or comparative assessments of candidates.

21. In light of the above, EPSO argued that it fully complied with the obligation to give reasons for the Selection Board's decision. EPSO further underlined that it was not the responsibility of a Selection Board to point out to candidates the seriousness of their errors, as is the case with school examinations.

22. In her observations, the complainant argued that EPSO's opinion was unsatisfactory. The complainant underlined her right to know, with absolute certainty: (i) that her test a) was corrected, since it was not possible to confirm this on the basis of the documents forwarded to her by EPSO; and (ii) the reasons why her test a) was judged to be unsatisfactory.

The Ombudsman's assessment

23. The Ombudsman recalls that he has already dealt with several complaints against EPSO concerning the issue of transparency in recruitment competitions and the duty to state reasons[5]. In his decision closing complaint 14/2010/ANA, the Ombudsman stated the following (see points 32-36 of the decision):

- Any request for additional information in relation to a candidate's performance in an open competition organised by EPSO is subject to complex considerations. Within the context of the duty to state reasons, EPSO needs to reconcile the secrecy of the Selection Board's proceedings with the requirements of transparency[6].

- On the one hand, the Court of Justice gave a far-reaching interpretation of the concept of confidentiality of the Selection Board proceedings when it stated that the marking criteria form an integral part of the comparative assessments of the candidates' respective merits and are therefore covered by the secrecy of the proceedings in the same way as the Selection Board's assessments. The marks awarded to a candidate are the expression of value judgments made concerning each of them and the communication of the marks obtained constitutes an adequate statement of the reasons upon which the Board's decisions are based[7].

- On the other hand, the Ombudsman consistently highlights the importance of the fundamental principle of transparency enshrined in Article 1 of the Treaty on European Union[8] and Article 15(1) of the Treaty on the Functioning of the European Union[9]. Today, it is widely accepted that transparency in the decision-making process strengthens the democratic nature of the institutions and enhances public confidence in European administration[10].

- Even before the entry into force of the Treaty of Lisbon, which strengthened the principle of transparency and endowed it with renewed dynamism, the Ombudsman had emphasised to EPSO that the needs for greater openness in recruitment procedures are much more wide-ranging than the needs for general openness, however important the latter may be. Such needs include important specific concerns regarding legal protection, equality, proportionality and the Union's interest in recruiting officials of the highest standard of ability, efficiency and integrity[11].

- In this regard, following the Ombudsman's own-initiative inquiry OI/5/2005/PB on transparency in EU recruitment procedures, EPSO undertook the obligation to propose to the Selection Boards that, in the case of written tests, they use a model evaluation sheet, obtainable by candidates upon request, which contains (a) the evaluation criteria set out in the published notices of competition (including the various elements eventually evaluated by the Board for each criterion) and the level of performance attained (ranging from excellent to insufficient), and (b) in addition to the global mark, the partial marks awarded by the Board for each criterion specified in the notice of competition[12].

24. In the case at hand, the Ombudsman notes that EPSO informed the complainant of her marks obtained in test a), by letter dated 7 October 2009. Following her request for further information, EPSO also sent her additional documentation on 29 October 2009, such as copies of her test a) and the relevant evaluation sheet. The evaluation sheet included the overall mark awarded to the complainant, that is, 19 points out of 40, and a statement of formal assessment relating to the level of her performance.

25. EPSO did not, however, provide the complainant with a detailed breakdown of her marks, since the Selection Board decided not to award partial marks for each criterion. The reasons invoked by EPSO in this regard were that, in view of the nature of test a), and the interdependence of the relevant skills and abilities, the Selection Board did not consider it appropriate to award marks for each criterion in addition to the overall mark given to each test paper. Furthermore, EPSO stressed that there was no provision in the notice of competition requiring such partial marks to be awarded. In light of the above, EPSO concluded that the approach taken by the Selection Board to award an overall mark for each test was perfectly in accordance with the notice of competition and also in line with the wide discretion which, as confirmed by the case-law of the Union courts, Selection Boards enjoy as regards how tests are marked. EPSO also referred to the secrecy of the Selection Board's proceedings and the limits of the legal obligation to state reasons.

26. The Ombudsman is not entirely convinced by the above arguments put forward by EPSO. The Ombudsman is, of course, fully aware of the case-law that EPSO refers to with respect to the secrecy of the Selection Board's proceedings and the limits of the legal obligation to state reasons. He notes that, in a judgment of 8 July 2010, the Civil Service Tribunal summarised the situation as follows[13]:

"A decision by which a selection board states that a candidate has failed in a test is, however, the expression of the comparative assessments undertaken by the board. Having regard to the secrecy which must surround the proceedings of a selection board and in view of the wide discretion it enjoys to evaluate the results of competition tests, it cannot be required, in giving reasons for a candidate’s failure in a test, to specify which of the candidate’s answers were judged inadequate or to explain why those answers were considered inadequate. Consequently, communication of the marks obtained in the various tests constitutes, in principle, an adequate statement of the reasons on which the board’s decisions were based.

However, the secrecy surrounding the proceedings of a selection board and the wide discretion it enjoys do not mean that candidates in a competition who so request may not, where appropriate, be informed of the marks obtained for each of the evaluation criteria set out in the competition notice for the oral test."

27. The present case concerns the option referred to in the second paragraph quoted above.

28. In this respect, the Ombudsman recalls, as he did in his letter to EPSO opening the present inquiry, that EPSO made an express commitment to propose to the Selection Boards that they use an evaluation sheet which sets out the partial marks awarded by the board for each criterion specified in the notice of competition.

29. In the present case, it is undisputed that EPSO did not respect this commitment. It is, therefore, not possible to provide the complainant with more detailed information than that which she has already received. He will therefore make a critical remark in this regard.

30. The Ombudsman notes that the complainant's main concern was to be informed whether the Board did, as a matter of fact, carry out an actual assessment of her test here in question, and if so, whether that assessment was properly and accurately carried out.

31. The Ombudsman examined the relevant evidence that EPSO submitted during this inquiry, and confirms that the Board did carry out an assessment which was accurate, thorough and consistent with the method described by EPSO in its opinion.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman issues the following critical remark:

In response to the Ombudsman's own-initiative inquiry OI/5/2005/PB, EPSO made a commitment to encourage Selection Boards to ensure that candidates could receive more detailed information about the marking of their tests. In the present case, EPSO took no steps to implement this commitment. This constitutes an instance of maladministration.

The Ombudsman is currently considering the possibility of opening a further own-initiative inquiry into the level of transparency in EPSO's selection procedures.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 7 February 2012

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[1] Notice of Open Competition EPSO/AD/137/08, OJ 2008 C 263A, p. 1.

[2] See Point II.B.3 of Notice of Competition EPSO/AD/137/08.

[3] Article 6 of Annex III to the Staff Regulations of officials of the European Communities.

[4] The Ombudsman underlined that any information that EPSO might consider to be confidential would not be disclosed to the complainant.

[5] See, for example, decisions of the European Ombudsman on complaints 1251/2009/(CK)ANA and 14/2010/ANA.

[6] Case T-72/01 Pyres v Commission [2003] ECR II-861, paragraphs 70-71.

[7] Case C-254/95 P European Parliament v Angelo Innamorati [1996] ECR I-3423, paragraphs 28-31.

[8] "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen."

[9] "In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible."

[10] Decision of the European Ombudsman on own-initiative inquiry OI/4/2007/(ID)MHZ concerning EPSO, paragraph 32.

[11] Draft recommendation to the European Personnel Selection Office concerning own-initiative inquiry OI/5/2005/PB on transparency in EU recruitment procedures, paragraph 1.8.

[12] Decision of the European Ombudsman closing his own-initiative inquiry OI/5/2005/PB concerning the European Personnel Selection Office, paragraph 23.

[13] Case F-17/08 Wybranowski v Commission, judgment of 18 July 2010.