The background to the complaint

1. The present complaint concerns EPSO's refusal to provide a candidate with detailed information on why she failed a staff recruitment competition.

2. In 2012, the complainant participated in a staff recruitment competition for secretarial assistants (open competition EPSO/AST/117/11). Candidates were assessed on general and specific skills. The assessment of the specific skills consisted of two practical tests, namely (a) the preparation and/or processing of an MS Word/Excel document, and (b) a practical test to assess drafting skills.

3. The complainant failed practical tests a) and b). In giving her a breakdown of her marks in the competency passport, EPSO provided comments on why the particular marks were awarded in the case of the general skills assessment. However, she received no comments as regards the marks obtained on the practical tests.

4. The complainant then asked EPSO to send her the same kind of information for the practical tests as for the tests assessing the general skills.

5. EPSO replied that, according to point 6.2 ("Access to information") of the Guide to Open Competitions, candidates are informed only of their overall marks for each competency assessed and that it could not provide further information to the complainant[1]. In August 2012, the complainant turned to the Ombudsman.

The inquiry

6. The Ombudsman opened an inquiry into the complaint and identified the following allegation and claim:

Allegation:

EPSO failed to provide the complainant, in her competency passport, with comments explaining her scores on practical tests a) and b).

Claim:

EPSO should provide the complainant with further information concerning her performance on practical tests a) and b).

7. In the course of the inquiry, the Ombudsman received EPSO's opinion on the complaint on which the complainant did not submit observations. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

A. The alleged failure of EPSO to provide the complainant with comments concerning her performance on practical tests a) and b)

Arguments presented to the Ombudsman

8. In its opinion, EPSO stated that, due to an internal oversight, it had not provided the complainant with a copy of her practical tests earlier but that it had now sent the complainant a copy of her uncorrected practical tests However, EPSO informed the complainant that, given the confidential nature of the works of the Selection Board, it could not provide more detailed information concerning the tests, such as the assessment criteria. EPSO apologised for any inconvenience it may have caused to the complainant.

9. EPSO clarified that, in the past, and following the Ombudsman’s own-initiative inquiry OI/5/2005/PB, it made a commitment to propose that Selection Boards provide candidates with an evaluation sheet containing (a) the evaluation criteria set out in the notice of competition (including the various elements that may be evaluated by the Selection Board for each criterion) and the level of performance attained (ranging from excellent to insufficient), and (b) in addition to the total mark, the partial marks awarded by the Selection Board for each criterion specified in the notice of competition. However, in 2010, EPSO introduced new competition procedures in order to enhance the transparency of those procedures. For all competitions launched since 2010, EPSO has been using a standard "Assessment Centre" model, based on competencies.

10. With these new competition procedures, EPSO also introduced a new, improved model for notices of competition and a Guide to Open Competitions, which contains the common rules applicable to all competition procedures. These documents provide the candidates with detailed information about the nature of the different tests and exercises of a competition. Each notice of competition clearly indicates which skills are assessed (they can be considered as equivalent to assessment criteria) in which tests and exercises, and how they are marked. The skills are set out in detail in the Guide to Open Competitions. The notices of competition and the Guide, which according to case law are binding upon the Selection Boards, establish a new document format, namely the "competency passport", for sending candidates their results on the Assessment Centre tests. The competency passport contains i) a general description of the "competency framework", ii) the total mark obtained by the candidate, along with an overview of the candidate’s main strengths and weaknesses, in graphic form, and iii) for each skill assessed, the partial marks awarded by the Selection Board and a description of the Board’s main conclusions on the candidate’s performance. EPSO thus believes that it has taken major steps forward in the on-going process of enhancing the transparency of selection procedures, in line with the recommendations made by the Ombudsman.

11. As regards the present case, EPSO said that it had provided the complainant with more information than required by law. EPSO disagreed with the complainant that it had not sufficiently reasoned its decision with regard to her performance on the practical tests. It argued that the European Code of Good Administrative Behaviour is a draft piece of legislation that has not been fully approved and that is not applicable to EPSO. EPSO stated that, when candidates are assessed, the proceedings of the Selection Board are of a comparative nature and covered by the secrecy surrounding such proceedings. Thus, in line with constant case-law, communication of the marks obtained constitutes a sufficient statement of reasons. EPSO nonetheless provided the complainant with more information.

12. EPSO pointed out that the complainant's practical tests were marked using a detailed and comprehensive grid approved by the Selection Board and applied equally to all candidates. Markers were duly informed of the marking procedure and criteria to ensure that these were correctly applied to all candidates. Moreover, the complainant received copies of her tests.

13. In asking EPSO to submit an opinion, the Ombudsman pointed out that, in its opinions in cases 2022/2011/RT and 2430/2011/RT which concerned the same issue as the present complaint, EPSO stated that it could not provide more information concerning the performance of candidates on the practical tests because of the "technical nature" of these tests. The Ombudsman therefore asked EPSO to clarify why the technical nature of these tests does not allow EPSO to provide more information when, in the past, candidates could obtain evaluation sheets for this kind of tests. EPSO explained that, given the technical nature of tests (a) and (b), the Selection Board decided not to include any comments regarding the candidates’ specific skills in their competency passports.

14. EPSO clarified that the evaluation grids established the relevant assessment criteria and the number of points to be assigned according to the candidate's performance for each criterion. In relation to test (a), the evaluation sheet set out the criteria to be taken into consideration concerning the use of many MS Word/Excel tools (for example, the use of the correct line spacing, the correct text font, the correct use of underlined, bold or italic or text headers, etc.). In relation to test (b), the criteria included the candidate's use of the correct spelling, syntax and grammar and the general quality of the draft.

15. The markers then filled in the evaluation sheets and calculated the final score for each test. Given the practical nature of these tests, the Selection Board considered that the final scores constituted a sufficient statement of reasons. Therefore, it decided not to include any comments in the competency passports regarding the candidates’ specific skills. This decision, EPSO stated, is in line with the Selection Board's wide powers of discretion as regards the methods and detailed contents of the tests, as well as their assessment and choice of correction methods.

16. EPSO concluded that the complainant received all the information necessary to fulfil the legal obligation to state reasons. She was even provided with additional explanations going beyond those required by applicable law.

The Ombudsman's assessment

17. After the Ombudsman opened his inquiry, EPSO on 6 September 2012 sent to the complainant a copy of her (uncorrected) practical tests a) and b). However, as these were uncorrected copies, the complainant could not figure out, from the information in her possession, why she did not obtain the pass mark for the practical tests. Thus, the communication to the complainant of the uncorrected copies of her practical tests does not alter the allegation that EPSO failed to provide the complainant, in her competency passport, with comments explaining her scores on practical tests a) and b).

18. EPSO has explained that, with the introduction of the new competition procedures in 2010, the competency passport now constitutes the document of reference for communicating candidates’ results on the Assessment Centre tests. The competency passport contains, for each of the 7 assessed general skills, both i) the candidate's detailed score, and ii) a comment from the Selection Board explaining the candidate's performance (allowing the candidate thus to understand how well he/she performed). However, while it contains the scores obtained for the two practical tests, it does not explain those scores.

19. It is true that EPSO has provided further explanations to the complainant on which evaluation criteria the markers used in the evaluation sheets for the practical tests a) and b). The Ombudsman is however not convinced that the practical nature of these tests prevented the Selection Board from either communicating to the complainant the evaluation sheets or including in the competency passport detailed comments regarding the complainant's performance on tests a) and b). In several cases, the Ombudsman has already criticised EPSO for not providing candidates with more detailed information as regards their performance on practical tests[2], thereby underlining that EPSO had departed from the commitments it had made in the context of the Ombudsman's own-initiative inquiry OI/5/2005/PB.

20. However, on 12 February 2014, the Civil Service Tribunal gave its judgment in case De Mendoza Asensi v Commission in which it stated that Selection Boards do not need to give candidates the corrected version of their tests, the reasons why replies were erroneous, or the evaluation grids used for the written and oral tests, since these documents form part of the Selection Board's comparative assessments and are covered by the secrecy of the Selection Board proceedings[3]. This ruling limits the scope for transparency in the employment selection procedures of the European Union. The Ombudsman is obliged to have regard to this recent development of the case-law of the Union Courts and to be guided by it in her inquiries. No further inquiries into the complainant's allegation and claim are therefore justified.

21. Regardless of the above conclusion, the Ombudsman calls EPSO's attention to the fact that that this new development discharges it only from the duty to disclose the evaluation sheets. However, it does not discharge EPSO and the Selection Boards from the obligation to establish detailed and clear evaluation and marking grids, which will ensure that the markers and the members of the Boards will conduct fair and objective evaluations and markings of the candidates' papers. It also requires EPSO to pay special attention to the content of the candidates' competency passport. Since the competency passport is the only document allowing candidates to understand why they failed a test, it is imperative that it contain the necessary information about the candidate’s performance, including on the practical tests.

22. The Ombudsman notes that, in the course of her inquiry, EPSO provided the complainant with further relevant information. EPSO provided the complainant with a copy of her practical tests a) and b) and it explained the evaluation criteria that had been used by the markers. However, not all rejected candidates lodge complaints with the European Ombudsman. Those who do not complain may well be left with the feeling that the EU selection policy is inconsistent, cryptic and unfair, and lacks transparency. This certainly is not the image the EU institutions wish to convey to citizens. In this regard, the Ombudsman will make a further remark below.

23. The Ombudsman finally wants to strongly reject EPSO's argument that it would not be bound by the principles of the European Code of Good Administrative Behaviour. Strictly legally speaking, the Code is not a binding legal document.  The Ombudsman however underlines that the European Code of Good Administrative Behaviour contains principles of EU law, like the principle that institutions should reason their decisions (Article 18 of the Code), which apply to all EU institutions, independently from whether they are contained in the Code or not. Most of the principles contained in the Code are also established principles in the EU case-law. The Ombudsman therefore considers as unacceptable any claim by EPSO that it is not bound by the principles of the Code. The Ombudsman also points out in this context that the European Commission has its own Code of Good Administrative Behaviour[4] and that EPSO, which administratively forms part of the Commission, is thus bound by that Code.

B. Conclusions

On the basis of her inquiry into this complaint, the Ombudsman closes it with the following conclusion:

In light of the recent developments of the case-law of the Civil Service Tribunal, there are no grounds for the Ombudsman to conduct further inquiries into the present complaint.

The complainant and EPSO will be informed of this decision.

Further remark

In the light of recent developments in the case-law of the Civil Service Tribunal, the competency passport is now the only document which enables candidates to understand why they have failed in a particular test. For this reason, when organising open competitions, EPSO should be particularly careful to ensure that the competency passport contains all the necessary information, including details of the candidates' performance in the practical tests.

 

Emily O'Reilly

Done in Strasbourg on 27 June 2014