Strasbourg, 18 April 2008

Dear Mr S.,

On 1 August 2006, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning Open Competition EPSO/AD/5/05.

On 6 November 2006, I forwarded your complaint to the Director of EPSO and asked EPSO to submit an opinion. EPSO sent its opinion in French on 22 February 2007, and supplied an English translation thereof on 23 April 2007. I forwarded the English translation to you with an invitation to make observations. No observations have been received from you.

I am writing now to let you know the results of the inquiries that have been made. I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

The complainant took part in Open Competition EPSO/AD/5/05, which was organised by EPSO and designed to constitute a reserve pool from which to recruit linguistic administrators in the field of translation having Czech as their main language(1).

On 1 June 2006, EPSO informed the complainant that he failed to attain the pass-mark for written test (c) and therefore could not participate in the next stages of the competition. Written test (c) consisted of a translation from the complainant's first compulsory source language (English) into his main language (Czech) of a general text relating to the activities of the European Union. This test was marked on a scale to 40 points, with a pass-mark of 20.

By e-mail of the same day of 1 June 2006, the complainant asked for a review of EPSO's above decision. He pointed out that he graduated from the Charles University in Prague and his main subjects were the English language and the Czech language (linguistics, literature and methodology). He also noted that he had been appointed as a Court Interpreter for the English language by a Czech court. He concluded therefore that he did possess the language skills required for the above post.

By letter of 30 June 2006, EPSO responded to a further letter of the complainant dated 6 June 2006 as follows:

- Every candidate's written test was corrected by at least two markers having a perfect command of the target language and a sound knowledge of the source language.

- The tests were marked according to detailed guidelines devised by the Selection Board. For every mistake or omission and depending on its seriousness, a certain number of points was deducted from the maximum number of points that could be awarded.

- The Selection Board checked that the correction criteria were correctly applied to the tests, took account of the comments/observations made by the markers and subsequently determined the score to be awarded.

- The Selection Board re-checked the complainant's written test (c) and verified that no error had taken place in its marking. On this basis, it confirmed the score awarded to the complainant's test (c).

- The Selection Board's decision was based on its assessment that the complainant's test paper contained:

(i) serious misunderstandings of the original text;

(ii) a style that did not meet EU standards;

(iii) an incorrect translation of several passages of the original text in the target language; and

(iv) some minor omissions, as well as grammatical and punctuation mistakes.

- Following the complainant's request, the Selection Board provided him with an unmarked copy of his written test (c) along with the evaluation sheet for that test.

According to the evaluation sheet, in order to evaluate the candidates' performance, the Selection Board based itself on the following criteria:(2)

"● Comprehension of the source language and the source text

- Comprehension of the text/Ability to grasp the text and deal with it

Coherence and structure of the text

- Logical reasoning skills in relation to the translation of difficult passages

● Command of the target language

- Clarity, precision, conciseness

- Style, presentation".

Further, in the "General evaluation" section, the evaluation sheet contains, for each of the above two groups of evaluation criteria, five boxes corresponding to a certain range of points and to the following general evaluations: excellent, very good, good, acceptable, and insufficient. In relation to the complainant's test (c), the Selection Board ticked the lowest box (insufficient, < 20 points) for both groups of the evaluation criteria. The mark awarded was 0.25 points out of 40.

The "Written assessment" section of the evaluation sheet consisted of five written assessments, of which one could be ticked. With respect to the complainant's test (c), the Selection Board ticked the lowest assessment, which stated: "Insufficient test paper not corresponding to the requirements related to the nature and level of the functions of the competition."(3)

By letter of 10 July 2006, the complainant basically reiterated the reasons, already mentioned in his e-mail of 1 June 2006 to EPSO, for which he believed that he was the best candidate for the post in question. In this regard, the complainant referred to his educational background, his working experience as a translator and a court interpreter and his continuous professional training. In this context, he stated that it was quite unfathomable that he would fail such an exam, and that he could not accept that he could have made grammatical and punctuation mistakes. He requested to have his test proofread once again by another two independent markers and evaluated without bias or favouritism. The complainant added that he found it insufficient to receive a copy of his translation into Czech without receiving, at the same time, a copy of the original text in the source language(4) and a "detailed description of the alleged mistakes". He also found it insufficient to receive an evaluation sheet written in French when the language of communication between EPSO and himself was English.

In its reply of 27 July 2006, EPSO mainly emphasised the fact that two markers - working independently - reviewed the complainant's test paper in detail, applying exactly the same criteria as those employed for all other candidates, and assessed it for both individual errors and overall quality, bearing in mind the target audience.

On 1 August 2006, the complainant submitted his complaint to the European Ombudsman. He took the view that EPSO's reactions to his above letters were not adequate. He referred, once again, to his educational background and professional experience, and insisted that there were no omissions, and no grammatical and/or punctuation mistakes in his test. He also repeated that the French-language evaluation sheet was of little value to him, and stated that the sheet did not, in any way, provide relevant details.

Therefore, the complainant made the following allegations:

(1) EPSO's decision to exclude him from the above competition is wrong.

(2) EPSO failed to give substantive reasons for his exclusion from the competition.

The complainant also made the following claims:

(1) EPSO should re-assess his written test (c) and admit him to the oral test.

(2) EPSO should provide him with substantive reasons for his exclusion from the competition.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO summarised the facts giving rise to the present complaint. Further, it pointed out that, in order to mark the tests for this competition, the Selection Board relied on assessors (markers) who possessed all the skills necessary to perform their duties. In order to enable them to carry out their work properly, the Board provided the markers with instructions concerning working methods, which were applied to all papers and were designed to ensure that all candidates were compared using fair and uniform criteria. Each test was assessed by at least two markers who worked with photocopies on which the candidates' names did not appear.

EPSO went on to state that, in assessing the complainant's test paper, the Selection Board took note of the assessments and comments from the two markers, both of whom found a large number of errors relating to poor comprehension of the original text, mistranslations, passages which did not make sense, stylistic errors, lack of clarity and some omissions. After checking that the relevant criteria had been properly applied by the markers, the Board awarded a numerical mark for the test and gave an indication of its assessment of the level of comprehension of the source language and the source text (criterion 1) and of mastery of the target language (criterion 2). It did not, however, write any notes on the complainant's test paper. Its assessment as a whole appeared only on the final evaluation sheet.

EPSO further explained what skills were assessed under criteria 1 and 2 of the evaluation sheet, as summarised on pages 2 and 3 above, and stated that the complainant's performance was deemed insufficient with respect to each of these criteria (equating to a mark below 20 points).

EPSO also stated that, according to case-law relating to competitions(5), notification of a numerical mark and the sending of the Selection Board's evaluation sheet constituted a sufficient explanation for a decision with adverse effects. Such an explanation did not infringe the rights of rejected candidates. It informed them of the value judgement made regarding their performance and enabled them to see that they did not obtain the number of points set by the relevant notice of competition as the threshold for admission to the next stage of the competition.

Further, EPSO reiterated that, when a candidate's performance was assessed, the Selection Board did not write any notes or corrections on the candidate's script, but gave its comments by means of the evaluation sheet only. In this regard, EPSO referred to the case-law of the Court of First Instance and the decisions of the European Ombudsman according to which a Board was under no obligation to write its comments relating to the assessment of a candidate on his/her test paper(6). EPSO was therefore unable to provide the complainant with a list of errors and omissions that he had made since no such document existed.

EPSO went on to state that the Selection Board took careful note of all the points raised by the complainant before reviewing his written test (c). However, the Board found that the number of points it had initially awarded did indeed correspond to a level of quality that was insufficient (measured against the demands of the post for which the competition was organised). Furthermore, EPSO assured the complainant that there was no human error in copying the Board's mark into the letter notifying him of his results. On reviewing his test paper, the Board saw no reason to re-mark it, as it had already been marked twice, anonymously, as had the tests of all of the other candidates.

With respect to the complainant's arguments that he is the most suitable candidate for the post in question, EPSO pointed out that a competition involves many candidates competing for a limited number of posts. Furthermore, it is a Selection Board's duty to assess each candidate's performance in comparison with that of the other candidates, with a view to drawing up a list of the best among them. In carrying out this comparative assessment, the Board does not set out to cast doubt on the professional qualities of individual candidates. A competition is not the same as an aptitude test, and the mark obtained by a candidate in a competition is based on his performance on that day. By contrast, a candidate's conviction that he has performed well is a reflection of his own impression rather than of how he actually performed. Moreover, the performance must be, in any event, measured against all the other candidates' performances. EPSO added that a candidate's self-assessment does not demonstrate that the Board has made an error of judgement, and referred to Case T-53/00 Angioli v Commission in this regard(7).

EPSO concluded by stating that it provided the complainant with a sufficient explanation of the Selection Board's decision concerning his test (c), by means of (i) the notification of a numerical mark for that test; (ii) the additional information contained in the Board's evaluation sheet; and (iii) the further explanation contained in its letter of 30 June 2006 to the complainant. According to EPSO, it is not the Board's duty, in a competition, to identify how serious or important each of the candidate's errors and omissions were, as would be required for an academic examination. Moreover, the Board cannot supply such information since it lacks the authority to take on responsibilities outside its remit, which is to select staff with a view to meeting the needs of the institutions.

The complainant's observations

The complainant did not submit any observations.

THE DECISION

1 Allegedly wrongful decision to exclude the complainant from the competition and related claim

1.1 The complainant participated in Open Competition EPSO/AD/5/05 for linguistic administrators in the field of translation having Czech as their main language. He failed written test (c), which required candidates to translate from English into Czech a general text relating to the activities of the European Union. The complainant obtained 0.25 points out of 40 (pass-mark 20) in test (c).

The complainant alleged that EPSO's decision to exclude him from the competition was wrong, and claimed that EPSO should re-assess his written test (c) and admit him to the oral test.

In support of his allegation, he mentioned his educational background, his working experience as a translator and as a court interpreter, as well as his continuous professional training. In light of the above, he considered that he was the best candidate for the above post. He also refused to accept that he could have made grammatical and punctuation mistakes.

1.2 In its opinion, EPSO explained in further detail the explanation it had provided to the complainant in its earlier replies to him. It explained that each test was assessed by at least two markers who worked with photocopies on which the candidates' names did not appear. The markers possessed all the skills necessary for the performance of their duties and applied, when correcting all of the test papers, the Selection Board's instructions concerning working methods, thereby ensuring that all candidates were compared on the basis of fair and uniform criteria.

EPSO went on to state that the Selection Board took note of the assessments and comments of the two markers assessing the complainant's test (c) and checked that they properly applied the relevant criteria. On that basis, the Board awarded a numerical mark for the test and gave an indication of its assessment of the complainant's test (c) on the final evaluation sheet, for each of the criteria used. The complainant's performance was deemed insufficient with respect to each of the criteria and therefore he failed to reach the pass-mark.

With respect to the complainant's conviction that he was the most suitable candidate for the post, EPSO stated that such a conviction was a reflection of the candidate's own impressions rather than of how he actually performed. In a competition, however, many candidates compete for a limited number of posts, and the Selection Board's duty is to assess each candidate's performance in comparison with the performance of the other candidates. The mark obtained is based on the candidate's performance on that day. EPSO added that a candidate's self-assessment does not demonstrate that the Board has made an error of judgement, and referred to the relevant case-law(8).

Finally, EPSO pointed out that the complainant's test paper was reviewed but the Board saw no reason to re-mark it, since it had already been marked twice, anonymously, as had the tests of all the candidates.

1.3 The Ombudsman notes that the complainant based his allegation essentially on two elements. First, the complainant is convinced that, in light of his educational background, working experience and continuous professional training, he is the best candidate for the post of a Czech-language linguistic administrator in the field of translation. Second, the complainant is convinced that there were no omissions, or grammatical and/or punctuation mistakes in his test.

1.4 In this regard, the Ombudsman recalls that, according to the case-law of the Community Courts, a Selection Board's assessment made in evaluating a candidate's knowledge and capabilities constitutes an expression of a value judgment, and forms part of the broad power of discretion which the Board enjoys(9). The extent to which the Board's value judgments regarding a candidate’s performance in the test were well founded can be reviewed by the Community Courts only (i) in clear cases of infringement of the rules governing the Board's proceedings; (ii) in clear cases of a manifest error or misuse of powers; or (iii) in the event that the Board has manifestly exceeded the bounds of its discretion(10).

The Ombudsman considers that his own review in the framework of the present complaint should be based on the same approach. The Ombudsman also notes that, i n the present case, the complainant did not submit any evidence indicating that any of the above situations materialised.

1.5 Furthermore, as pointed out by EPSO, a candidate's self-assessment does not demonstrate that the Selection Board has made an error of judgement(11).

1.6 In these circumstances, the complainant's conviction that, in light of his educational background, working experience and professional training, he was the best candidate for the post in question is not, in itself, sufficient to sustain his allegation that EPSO's decision to exclude him from the competition was wrong or his related claim. Moreover, the complainant's test was indeed reviewed by the Selection Board, in accordance with the Notice of Competition(12). The Ombudsman is not however aware of any rule which requires the Selection Board to award, in fact, different marks, when it reviews the tests. Therefore, the Ombudsman finds no instance of maladministration in this regard.

2 Alleged failure to give substantive reasons for the complainant's exclusion from the competition and related claim

2.1 The complainant alleged that EPSO failed to give substantive reasons for his exclusion from the competition, and claimed that it should provide him with such reasons.

The complainant referred to the answers he received from EPSO on 30 June 2006, in reply to his letter of 6 June 2006. EPSO confirmed the score awarded for his test (c) on the grounds that the Selection Board re-checked that test and verified that no error had taken place in its marking. EPSO also informed the complainant that the Board's decision was based on the following errors in the complainant's test (c): (i) serious misunderstandings of the original text; (ii) a style that did not meet EU standards; (iii) incorrect translation of several passages of the original text in the target language; and (iv) some minor omissions, as well as grammatical and punctuation mistakes. EPSO also provided the complainant with an unmarked copy of the test along with the Board's evaluation sheet for that test, drafted in French(13). As regards this last aspect, the complainant argued in particular that the French-language evaluation sheet was of little value to him and noted that the language of his correspondence with EPSO was English.

2.2 In its opinion, EPSO considered that it provided the complainant with a sufficient explanation of the Selection Board's decision concerning his test (c) by means of (i) the notification of a numerical mark for the test; (ii) the additional information contained in the evaluation sheet; and (iii) the further explanation contained in EPSO's letter of 30 June 2006 to the complainant.

EPSO also stated that, according to the case-law of the Community Courts relating to EPSO competitions, the notification of a numerical mark and the sending of the Board's evaluation sheet constitute a sufficient explanation for a negative decision, and added that it is not the Board's duty to identify how serious or important each of the candidate's errors and omissions were. EPSO equally referred to the case-law of the Court of First Instance, as well as to the decisions of the European Ombudsman, according to which a Board is under no obligation to write its comments relating to the assessment of a candidate on his/her test paper(14).

EPSO concluded that it was therefore unable to comply with the complainant's request that he be provided with a list of errors and omissions since no such document existed.

2.3 The Ombudsman notes that this aspect of the complaint essentially concerns the candidates' access to information indicating the seriousness and the extent of the types of error identified by the Selection Board in competitions for translators.

This issue has already been addressed in the Ombudsman's inquiry into complaint 674/2004/(MF)PB. In his draft recommendation in that case, the Ombudsman made, inter alia, the following points:

(1) providing candidates with a copy of the Selection Board's final evaluation sheet can be an adequate indication of the Board's assessment regarding the errors and weaknesses it identified in a candidate's examination paper;

(2) where the evaluation sheet prepared by the Board concerns a translation test (as in the present case), 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 candidate's paper, without, however, imposing an unreasonable administrative burden on Boards(15);

(3) "(...) 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"(16);

(4) the Court of First Instance has found that "(...) a selection board 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."(17)

2.4 In light of the above, the Ombudsman examined the evaluation sheet which was sent by EPSO to the complainant. He notes that, according to that evaluation sheet, the Selection Board based its evaluation of his test (c) on the following criteria:(18)

"● Comprehension of the source language and the source text

- Comprehension of the text/Ability to grasp the text and deal with it

Coherence and structure of the text

- Logical reasoning skills in relation to the translation of difficult passages

● Command of the target language

- Clarity, precision, conciseness

- Style, presentation".

In addition, the evaluation sheet contained the following information on the assessment of the complainant's test:

- In the "General evaluation" section, the lowest of the five possible boxes (insufficient, < 20 points) was ticked for both groups of the above evaluation criteria. The mark awarded was 0.25 points out of 40.

- In the "Written assessment" section, the lowest of the five possible assessments was ticked: "Insufficient test paper not corresponding to the requirements related to the nature and level of the functions of the competition."(19)

2.5 In addition, in its letter of 30 June 2006, EPSO provided the complainant with the following information on the errors identified in his test paper:

(i) the types of the errors ("misunderstandings of the original text"; "style not meet EU standards"; "incorrect translation of several passages of the original text in the target language"; "omissions", "grammar and punctuation mistakes");

(ii) the seriousness of the errors ("serious misunderstandings", "minor omissions"); and

(iii) the extent of the errors ("incorrect translation of several passages", "some minor omissions") (emphasis added).

2.6 In light of the above, the Ombudsman considers that, by providing the complainant with (i) the evaluation sheet as described in point 2.4 above, and (ii) additional information as described in point 2.5 above, EPSO adequately indicated the Board's assessment regarding the complainant's errors.

Moreover, he recalls that the evaluation sheet concerns a translation test which aimed at assessing the candidates' knowledge and abilities necessary for translating into their main language texts mainly of a political, legal, economic, financial, scientific or technical nature which are frequently demanding and encompass all the spheres of activity of the European Union. Furthermore, in the translation test, particular importance was placed on the ability of candidates to grasp problems of all kinds, often complex in nature, to react rapidly to changing circumstances and to communicate effectively(20).

2.7 Finally, as regards the complainant's statements concerning the fact that the evaluation sheet which EPSO sent to him was written in French, the Ombudsman notes that, according to Article 10(3) of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents(21), documents shall be supplied in an existing version and format. This working document of the Board therefore appears to have existed only in French, which was the working language of the Selection Board. Therefore, it does not appear justified to request EPSO to produce an English-language version of the evaluation sheet. Moreover, the content of the evaluation sheet was explained to the complainant in English in EPSO's opinion, and again in the present decision.

2.8 For all of the above reasons, the Ombudsman finds no maladministration as regards the complainant's second allegation and considers that his related claim cannot be sustained.

3 Conclusion

The Ombudsman concludes that the inquiry into this complaint has not revealed an instance of maladministration. The Ombudsman therefore closes the case.

The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Notice of Competition published in OJ 2005 C 117 A, p. 3.

(2) Translation from French by the Ombudsman's services, based on EPSO's opinion.

(3) Translation from French by the Ombudsman's services.

(4) The complainant did not request such a copy.

(5) EPSO did not cite a specific case. The Ombudsman understands it to refer to Case T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraphs 32 and 33.

(6) Paragraph 61 of the Judgment in Case T-19/03 Konstantopoulou v Court of Justice, cited 5 above; and the Ombudsman's decision on complaint 324/2003/MF, which can be found at his website (http://www.ombudsman.europa.eu).

(7) Case T-53/00 Angioli v Commission [2003] ECR-SC-I-A-13 and II-73, paragraph 94: "[A complainant's] conviction that he has answered the questions asked correctly (...) does not amount to irrefutable proof of an obvious error of judgement [ by the assessors]" (Translation from the original French provided by EPSO).

(8) See footnote 7.

(9) Case T-193/00 Felix v Commission [2002] ECR-SC I-A-23 and II-101, paragraph 36.

(10) Case T-294/03 Gibault v Commission [2005] ECR-SC I-A-141 and II-635, paragraph 41.

(11) See footnote 7.

(12) See Annex to the Notice of Competition (Requests for applications to be reconsidered - Appeal procedures - Complaints to the European Ombudsman).

(13) The evaluation sheet is described in detail on pages 2 and 3 above.

(14) See footnote 6.

(15) See point 1.6 of the draft recommendation which can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).

(16) See point 1.8 of the draft recommendation.

(17) Case T-294/03 Gibault v Commission [2005] ECR-SC I-A-141 and II-635, paragraph 42.

(18) See footnote 2.

(19) See footnote 3.

(20) Point A.I. of the Notice of Competition.

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