The background to the complaint

1. The complaint concerns the refusal of the European Personnel Selection Office ('EPSO') to give access to the evaluation sheet concerning the complainant's test d) in Open Competition EPSO/AST/111/10.

2. The complainant participated in the above Open Competition, but was not among the successful candidates who were placed on the reserve list. At the same time that she requested a review of her results in the practical drafting skill test, that is to say, test d), she also asked EPSO for "the criteria of evaluation" and "a copy of [her] test with the potential corrections".

3. EPSO provided the complainant with a copy of her test d). She again asked whether it would "be possible to receive the evaluation sheet of [her] test d)". EPSO replied that "test d) was marked using a detailed and comprehensive marking grid ... This evaluation sheet is part of the confidential work of the Selection Board and it is therefore not accessible to candidates." When responding to the complainant's request for review, EPSO maintained its view that "[t]he correction criteria and the corrections carried out by markers/assessors are part of the confidential work of the Selection Board and are therefore not accessible to candidates."

The subject matter of the inquiry

4. In her complaint to the European Ombudsman, the complainant alleged that EPSO wrongly refused to provide her with the evaluation sheet regarding test d), showing the evaluation criteria and the corrections made in relation to those criteria.

5. The complainant claimed that EPSO should provide her with the evaluation sheet.

The inquiry

6. The Ombudsman asked EPSO to submit an opinion on the complaint by 29 February 2012. In the Ombudsman's letter to EPSO opening an inquiry into the present complaint, the Ombudsman asked EPSO to comment, in its opinion, on its refusal in light of an earlier undertaking. The undertaking was made following the own-initiative inquiry OI/5/2005/PB[1]. It required EPSO to use, and provide candidates with, a model evaluation sheet containing: (i) 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 (ii) in addition to the overall mark, the mark awarded by the Board for each criterion specified in the notice of competition.

7. Following an extension of the deadline, EPSO submitted its opinion on 28 March 2012. The opinion was forwarded to the complainant with a request to submit her observations, if any, by 31 May 2012. The Ombudsman did not receive any observations from the complainant.

8. On 2 May 2013, the Ombudsman made a draft recommendation to EPSO in respect of the complaint, asking for EPSO's detailed opinion by 31 July 2013. EPSO's detailed opinion on the draft recommendation was forwarded to the complainant with a request to submit her observations, if any, by 30 September 2013. The Ombudsman did not receive any observations from the complainant.

The Ombudsman's analysis and conclusions

A. Refusal to provide the evaluation sheet and related claim

Arguments presented to the Ombudsman

9. The complainant argued that, in order to ensure transparency in open competitions, EPSO should allow candidates access to the evaluation sheets and corrections concerning the different tests.

10. In its opinion, EPSO stated that selection boards act and proceed 'fully independently' and, as confirmed by "constant case-law", enjoy wide discretion concerning the choice of correction methods and the establishment of scoring criteria prior to the tests. Moreover, the appointing authority, or the administration in general, cannot interfere with the work of selection boards due to the selection boards' independence.

11. EPSO went on to state that the undertaking was made in 2008 following the Ombudsman's own-initiative inquiry OI/5/2005/PB, after which new competition procedures were introduced in line with the EPSO Development Plan on enhancing the transparency of the procedures. The reform of the competition procedure resulted in the introduction of a new, improved model for notices of competition and the publishing of 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 that make up a competition. Each notice of competition clearly indicates which competencies (which are equivalent to assessment criteria) are assessed in which tests and exercises, and how they are marked. The competencies are defined in detail in the Guide.

12. According to EPSO, the new model for notices of competition and the Guide, which, according to the case-law, are binding on the selection boards, provide for a new document format for communicating the assessment centre test results to candidates, namely, the competency passport. The competency passport contains: (a) a general description of the competency framework; (b) the total mark obtained by the candidate, together with a global overview of the candidate's main strengths and weaknesses, represented graphically; and (c) for each competency assessed, the marks awarded by the selection board and a description of the board's main conclusions on the candidate's performance. EPSO therefore concluded that, in line with the recommendations made by the Ombudsman, it has made major advances in the ongoing process of enhancing the transparency of selection procedures.

13. EPSO stated that the Selection Board in this case used objective marking criteria drawn up prior to the tests. However, as regards the suitability of the candidates, the proceedings of the Board were, above all, of a comparative nature and, accordingly, were covered by the secrecy provision surrounding such proceedings. Consequently, in line with "constant case-law", communicating the marks obtained constituted a sufficient statement of reasons. However, EPSO provided the complainant with more information than the marks obtained. The complainant received a competency passport with a detailed evaluation of her performance at the assessment centre. The competency passport included her 'competency profile', a 'competency overview' and her 'relative strengths and weaknesses' in all seven general competencies assessed. Furthermore, the comments of the Board in respect of those seven competencies were all included in the 'relative strengths and weaknesses' section of the complainant's competency passport, together with her overall mark and her mark for each competency. However, given the technical nature of test d), which was a practical test to assess the candidate's drafting skills and, in particular, spelling, syntax and grammar, the Board decided not to include any comments regarding the candidate's specific competencies in the competency passport.

14. EPSO stated that the complainant's test d) was marked using a comprehensive grid validated by the Board and applied equally to all candidates. The markers were informed of the marking procedure and of the criteria in order to ensure that these were correctly applied to all candidates.

15. EPSO concluded that the complainant had been provided with: (i) her overall mark; (ii) her marks for the seven general competencies assessed; (iii) the Board's comments concerning the seven general competencies assessed; (iv) information about the marking criteria for test d); and (v) a copy of test d). In EPSO's view, this constituted more information than the applicable rules require in order to fulfil the obligation to state reasons.

The Ombudsman's assessment leading to a draft recommendation

16. The Ombudsman appreciated the steps taken by EPSO to provide candidates, through the competency passport, with information about the evaluation of their competencies at the assessment centre stage of open competitions. The Ombudsman acknowledged that, as stated by EPSO, the competency passport constitutes a "new document format for communicating the assessment centre results to candidates". The Ombudsman pointed out, however, that the competency passport only contains information that will automatically be communicated to candidates, that is, the overall mark for each competency assessed[2]. This does not in any way imply that EPSO is prevented from providing candidates, upon request, with additional information about their performance in a particular test.

17. The Ombudsman also acknowledged that, according to the case-law of the EU courts, the legal obligation for a selection board to give reasons for its decision is fulfilled by providing the candidate with the final mark obtained in a particular test. Again, the Ombudsman pointed out that this does not mean that EPSO is prevented from providing candidates with additional information.

18. In respect of EPSO's reference to the secrecy provision surrounding the work of selection boards, the Ombudsman reiterated the finding made in the context of the own-initiative inquiry OI/5/2005/PB: the provision in the Staff Regulations providing that the proceedings of the selection boards shall be secret[3] does not prevent disclosure, to candidates, of the evaluation criteria or a detailed breakdown of marks in respect of a particular test. The outcome of that own-initiative inquiry was that EPSO undertook to meet the commitment that candidates should have a right to be provided with an evaluation sheet indicating not only the overall mark, but also the evaluation criteria used and the mark awarded for each criterion.

19. The Ombudsman has inspected certain EPSO files in the context of other complaints concerning Open Competition EPSO/AST/111/10. The Ombudsman is therefore aware that, in respect of test d), the markers used an evaluation sheet breaking down the marks by the criteria set out in the Notice of Competition (spelling, syntax and grammar).

20. On the basis of the above, the Ombudsman did not find EPSO's arguments, that it need no longer abide by the commitment it made in the context of the own-initiative inquiry OI/5/2005/PB, convincing. The Ombudsman addressed EPSO's unjustified refusal to provide the complainant with the evaluation sheet in respect of test d), which constitutes an instance of maladministration, by making the following draft recommendation:

Taking into account the Ombudsman's findings, EPSO should provide the complainant with a copy of her evaluation sheet in respect of test d), showing the evaluation criteria and the marks obtained in relation to those criteria.

The arguments presented to the Ombudsman after the draft recommendation

21. In its detailed opinion on the draft recommendation, EPSO stated, in summary, that it believes that providing a competency passport, which was decided upon by the institutions, for all candidates at the assessment centre stage of competitions represents best practice. It provides both quantitative and qualitative feedback, is highly transparent and represents a major step forward compared to previous practice. In this sense, EPSO believes that the Management Board's decisions in this area therefore supersede the 2005 agreement between the Ombudsman and the Director of EPSO as it goes far above and beyond the terms of that agreement. It also demonstrates EPSO's genuine general commitment to providing candidates not just with more detailed information, but also meaningful and useful feedback, showing the objectivity, fairness and thoroughness of the assessment process.

22. EPSO stated that it stands by its commitment made to the Ombudsman in the context of the own-initiative inquiry OI/5/2005/PB. Nevertheless, EPSO argued that the individual points obtained by candidates in relation to the different aspects of their competencies do not constitute intermediate marks. Since each competency is assessed in two separate tests, the points obtained in each of them are subject to discussion and modification by the Selection Board. Thus, only the resulting final mark for each competency constitutes a mark which is duly communicated in the context of the competency passport.

23. EPSO added that the precise criteria for the evaluation of the candidate's competencies fall, in accordance with "constant case-law", under the secrecy provision governing the work of the Selection Board and can, therefore, not be communicated.

24. EPSO considers that it has fully complied with its commitment to the Ombudsman to provide candidates with an evaluation sheet which indicates the assessment criteria applied by the selection board, the performance level of the candidate, and the total mark awarded. EPSO stated that as a result of the overhaul in methodology and the complete and comprehensive feedback now provided to candidates, similar complaints should no longer occur.

The Ombudsman's assessment after the draft recommendation

25. EPSO has clarified that, following the reform of the competition procedure, the competencies set out in the notice of competition constitute the evaluation criteria. The competencies are assessed through a combination of various tests. The results of a candidate for each competency are only arrived at after evaluating each test together with other relevant tests. The outcome of any individual test serves as a basis for further discussions within the selection board when the selection board is assessing a candidate's level of performance in respect of a particular competency. The Ombudsman acknowledges that such deliberations are clearly covered by the secrecy provision governing the work of the selection board provided for in Article 6 of Annex III to the Staff Regulations.

26. The Ombudsman notes, however, that in the competency passport, EPSO provides the candidates with the overall marks obtained in their tests c) and d). In other words, EPSO does not consider these marks to be covered by the secrecy provision.

27. The Ombudsman further notes that the marker's evaluation sheet used for test d), (which in turn was used by the Selection Board in order to give its final assessment of the candidates) set out the criteria to be evaluated (spelling, syntax and grammar), as well as the breakdown of mark for each criterion. The Ombudsman further notes that tests c) and d) are eliminatory, in that the Notice of Competition sets out a minimum pass mark for these tests.

28. On the basis of the above, the Ombudsman considers that it is appropriate for EPSO to provide candidates with the breakdown of the mark in respect of each evaluation criterion set out in the Notice of Competition for test d)[4], reflecting the Selection Board's final evaluation of the candidate on the basis of the markers' corrections. The Ombudsman thus maintains that the refusal to provide the complainant with the breakdown of marks regarding test d) constitutes an instance of maladministration. The Ombudsman will make a critical remark in this regard.

29. The Ombudsman notes that, in its response to critical remarks made in other cases[5] concerning access to the breakdown of marks in test d) in the Open Competition in question, EPSO has promised to take into consideration, in future procedures, the Ombudsman's conclusion that candidates should have been provided with the breakdown of the mark in respect of each evaluation criterion. It would be useful if EPSO could inform the Ombudsman of any concrete action taken or planned in this regard when responding to the critical remark in the present case. The Ombudsman will consider, on the basis of EPSO's reply to this critical remark, whether she will need to launch an own initiative inquiry into this particular aspect of the feedback given to candidates in the competency passport concerning their performance in the job specific knowledge tests.

B. Conclusion

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

The refusal to provide the complainant with the evaluation criteria and the mark obtained for each criterion in respect of test d) constitutes an instance of maladministration.

The complainant and EPSO will be informed of this decision.

 

Emily O'Reilly

Done in Strasbourg on 23 January 2014

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[1] The decision is available at: www.ombudsman.europa.eu/en/cases/decision.faces/en/3706/html.bookmark

[2] According to Point 6.2. of the Guide.

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

[4] The Ombudsman notes that in this particular case the complainant only asked for the evaluation sheet of test d). However, the same logic appears to be applicable to test c).

[5] 2022/2011/RT (http://www.ombudsman.europa.eu/cases/decision.faces/en/49985/html.bookmark) and 2430/2011/RT (http://www.ombudsman.europa.eu/cases/decision.faces/en/49986/html.bookmark)