Dear Mrs E.,
On 22 April 1997, the regional ombudsman of Catalonia, in Spain ("Sindic de Greugues"), transferred to me a complaint you had lodged with that institution. Your complaint concerned the alleged lack of transparency with which the European Commission had evaluated the written tests of open competition EUR/LA/97 in which you had participated, and the institution's refusal to give you access to your marked test.
I forwarded the complaint to the President of the European Commission on 9 June 1997. The Commission sent its comments on 5 August 1997. I passed these comments on to you on 8 September 1997, with an invitation to make observations. You contested the arguments put forward by the Commission in letters dated 22 and 23 September 1997, 18 March 1998 and 1 April 1998. In view of your allegations, I requested some further information from the Commission on 22 July 1998, which I received on 6 October 1998. I informed you of the additional information submitted by the Commission on 19 October 1998. Having considered the arguments of the case, members of my Secretariat carried out an inspection of the relevant documents in the Commission's premises in Brussels on 11 January 1999.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

In September 1996, Mrs E. had taken part in the written tests of open competition EUR/LA/97. On 14 November 1999, she was informed by the Selection Board that her score in the first written test (3,51 over 20), was below the required mark, and that therefore she had failed the test.
The complainant requested to obtain a copy of her marked test on 21 November 1996 and 7 January 1997, in order to verify that the mark she had obtained corresponded to the corrections made in her test. Both requests were rejected by the Selection Board, because of the confidentiality of its work. In view of her academic and professional experience, the complainant expressed her concern as regards the low marks obtained, and asked the Ombudsman to get a copy of her marked test. She also indicated that the refusal of the Selection Board to her requests were contrary to the principles of openness and transparency.

THE INQUIRY

The Commission's opinion
The comments from the European Commission on the complaint are in summary the following:
The Commission first set the background of the case. It explained that the complainant sought to take part in inter-institutional competition EUR/LA/97 organised for the establishment of a reserve list for translators (LA6/LA7), of Spanish mother tongue (1).The European Commission organised the tests, and acted as the appointing authority. However, the Jury was made of officials appointed by the different institutions.
In the notice of the competition concerning the written tests (points VII.A.1 and VII.B.1), it was indicated that the first written test (a) should consist of a translation into Spanish of a text of no more that 25 lines without dictionary. The second written test (b), was to be made of a series of multiple-choice questions related to European integration and EC policies. These two tests would be marked fist. Successful candidates should obtain a minimum score in both tests (10 over 20 for test a; 6 over 10 in test b), and furthermore, be among the 144 best candidates.
Mrs E., having obtained only a 3,51 mark in the first written test (a), was therefore eliminated from the competition. In reply to her request to obtain a copy of her test, the relevant Commission services explained that her marks were in accordance with the corrections made.
The Commission also pointed out that its refusal to allow candidates to have access to their marked tests, was supported by the ample power of Selection Boards to evaluate the merits of candidates, as recognised by the Court of Justice. In this context, the only obligation for Juries is to properly reason their decision. In the case of Mrs E., this duty had been met when the Selection Board indicated to her the marks she had obtained, as well as the criteria used for the correction of the tests. The fact that all tests had been marked by two different evaluators, chosen among experienced translators, showed that no subjective considerations took place in the marking of the tests.
As regards the complainant's claim of lack of transparency, the Commission expressed its view that the Jury had operated with the largest possible degree of transparency, and with due respect to the rule of law and confidentiality principles. Article 6 of Annex III of the Staff Regulations imposes a duty of confidentiality upon the work of Selection Boards, in order to avert any potential pressure being put on their individual members.
The complainant's observations
The Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations. In her reply of 22 September 1997, the complainant expressed some reasonable doubts as to the very low marks given to her, especially in view of her career and professional experience. The complainant explained she had specialised in English philology, with Master courses in Phonetics and Linguistics, and PhD courses at the University College London and the British Academy. The complainant also stressed that access to her marked test could hardly affect either the effectiveness of the Selection Board or the transparency of the Commission's work.
On 1 April 1998, the complainant forwarded to the Ombudsman a letter she had addressed to the Commission concerning the decision of this institution of 27 November 1997 to reject her appeal under article 90 of the Staff Regulations. The letter repeated, in substance, the same arguments already made in the complaint.
The Ombudsman forwarded the Commission's opinion to the complainant with an invitation to make observations. He received no observations.
Further inquiries
On 22 July 1998, the European Ombudsman wrote again to the Commission, requesting a copy of the written tests of Mrs E. in open competition EUR/LA/97, with the corrections made and the marks given by the Selection Board.
In its additional reply of 6 October 1998, the Commission reiterated its refusal to give copies of marked tests, recalling its arguments in a previous complaint (Ombudsman's own initiative 1004/97), namely the need to preserve the confidentiality of the Jury's work as laid down in article 6 of Annex III of the Staff Regulation. The institution also explained that the work of the Juries in this type of competition also involves a comparison of the merits of the candidates. This comparative assessment could not be properly undertaken by reviewing a single exam without reference to the other ones. In view of these considerations, the Commission regretted not being able to agree to the Ombudsman's request.
The Commission added that the normal means available to candidates to contest the decisions of the Jury are the appeal provided for in article 90 of the Staff Regulations, and recourse to the Community courts.
Inspection of the relevant documents
In view of the Commission's refusal to grant access to the documents being requested, the Ombudsman wrote to Commission President Santer on 19 October 1998, and reminded the institution of its duty under the provisions of Article 3 (2) of the Statute of the European Ombudsman(2). The Ombudsman also indicated in his letter that he intended to have the document inspected by a member of his Secretariat at the Commission's premises by the end of November, so that any possible misunderstanding regarding the potential use of the copy to be transmitted to him could be avoided. In its reply, the Commission agreed to hold a meeting "to discuss the nature of our concerns, since the Commission, at this stage, is not in a position to fully meet your request".
The meeting took place on 25 November 1995 at the Commission's premises in Brussels. In the course of the meeting, the responsible Commission services explained the procedure followed in the running of competitions, and in particular, the way corrections were made and supervised by the Selection Board. Taking into account the guarantees provided for by this procedure, and the limitations imposed by the case-law of the Community courts, it was suggested that there were sufficient elements to exclude any potential maladministration in the work of the Selection Board.
As for the requested inspection of the file, the representatives from the Commission stated that they could not take a final position on the matter before discussing it in the context of an inter-institutional meeting of the 'Heads of Administration' which was scheduled for 26 November.
Since there was no formal reply from the Commission by the end of November, the Ombudsman wrote again to the institution on 18 December 1998, and asked to inspect the relevant files, adding that

"If the Commission refuses to give the Ombudsman access to the files concerned, I request you [President Santer] to state the duly substantiated grounds of secrecy on which the decision is based.

In order to ensure that any special report to the European Parliament can be made promptly, I would be grateful to receive your reply by no later than 11 January 1999".

In a letter signed by Mr Trojan, Secretary General of the Commission, dated 23 December 1998, the Commission finally agreed to organise a meeting for the Ombudsman to inspect the written tests of the complainant in this case.
The inspection took place in Brussels, at the Commission premises on 11 January 1999. The meeting was chaired by Mr Fitzmaurice, Director at the Secretariat-General. The Commission was represented by the Head of Division responsible for Recruitment, Mrs D'Haen-Bertier, several officials from her services (Mrs De Carbon-Ferriere, Mr Curell and Mrs Bermudez), as well as by Mr Lewis from the Legal Service. A team of three members of the Ombudsman's secretariat looked at the documents brought by the Commission services, which included, i) the original written test drafted by the complainant, ii) two marked copies with the corrections made, and the score given by both evaluators, and (iii) the criteria defined by the Jury and used by the evaluators in their assessment of the tests. In reply to questions from the Ombudsman's services, the Commission representatives explained the criteria laid out by the Selection Board for the marking of tests, and the procedure followed to ensure that the marked copies corresponded to the original test of the complainant. The Ombudsman's services inspected the complainant's translation into Spanish of the original English text, and the corrections and marks made by each one of the two examiners.

THE DECISION

On the basis of the information provided by the complainant and the observations submitted by the European Commission, the Ombudsman has reached the following conclusions:
1. Role of the European Ombudsman
1.1 In the course of the Ombudsman's inquiry into this case, the Commission has stated that the normal means for candidates to contest adverse decisions taken by Selection Boards in open competitions are the appeal provided for in article 90 of the Staff Regulations, and recourse to the Community courts. It has also implied that the work of any Selection Board has sufficient internal controls and guarantees to exclude any potential instance of maladministration.
1.2 The institution of the European Ombudsman, as set up by the Treaty of Maastricht, was meant to underline the commitment of the Union to democratic, transparent and accountable forms of administration. To accomplish such aim, the European Ombudsman shall help to uncover maladministration in the activities of Community institutions and bodies, and make recommendations with a view to putting an end to it (3). These Community activities which do not fall within his mandate, are explicitly stated in his Statute(4).
1.3 No activity related to the organisation of a competition, or its procedure, let alone the decisions taken by Selection Boards, have been excluded from the Ombudsman's remit. Accordingly, the Ombudsman has the powers to launch any inquiry related to a potential case of maladministration in these type of cases.
1.4 As regards the means to contest a decision of a Selection Boards, in addition to the use of article 90, par. 2 of the Staff Regulations or recourse to the Court of First Instance, candidates may send a complaint to the European Ombudsman. Nothing precludes complainants in those cases from exercising their rights to apply to the Ombudsman as European citizens.
2. Right of the complainant to have access to her marked tests
2.1. The complainant has repeatedly asserted her right to have access to her tests once marked by the Selection Board, as a means to ensure that the process had been carried out with transparency and in due respect for the rule of law.
The Commission has rejected her requests on the grounds that the work of the Selection Board are confidential as set out in article 6 of Annex III of the Staff Regulations.
2.2. In the present state of Community law there is no legal basis for considering that the Commission is under an obligation to disclose a copy of corrected examination papers to the candidates. In this regard, the Ombudsman refers however to his own initiative inquiry concerning more transparency in the recruitment procedures followed by the Commission (ref. 1004/97/PD).
Furthermore, in order to dispel any potential suspicion concerning the corrections made in Mrs E.'s written tests, the Ombudsman carried out an inspection of the documents on 11 January 1999.
3. Assessment of the complainant's written test
3.1. As established by Community case-law, in assessing the results of tests, Selection Boards enjoy a wide discretion. This power, however, is not unbounded. It can be reviewed to ascertain whether its exercise, which must be based on objective criteria, is vitiated by a manifest error or by a misuse of powers, or whether the Selection Board has manifestly exceeded the limits of its discretion(5).
3.2. In order to ensure that in using its discretionary powers, the Selection Board had acted within the limits of its legal authority, the Ombudsman requested the Commission to inspect the relevant documentation concerning this case, namely the complainant's written tests in open competition EUR/LA/97 and the evaluation made by the Selection Board.
3.3. Having inspected the relevant documents in this case, the Ombudsman has found no evidence to question the judgements made by the Selection Board. The Ombudsman has therefore concluded that the Selection Board acted within the limits of its legal authority. There appears to be no instance of maladministration as regards this aspect of the case.
4. Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman therefore closes the case.
The President of the European Commission "Sindic de Greuges de Catalunya" will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

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(1) OJ C 62A

(2) "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested of them and give him access to the files concerned. They may refuse only on duly substantiated grounds of secrecy".

(3) Article 138e Treaty establishing the European Community; Article 2, par. 1, Statute of the European Ombudsman.

(4) For instance, cases before courts or related to a court's ruling (article 1, par. 3), or those activities of the Court of Justice and the Court of First Instance acting in their judicial role (article. 2, par. 2).

(5) See, case T-46/93, Fotini Michäel-Chiou v. Commission [1994] ECR I-A-0297; par. 48; case 40/86, Georges Kolivas v. Commission [1987] ECR 2643; par. 11.