Strasbourg, 2 June 2008

Dear Ms R.,

On 11 September 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 it to submit an opinion, which it sent on 21 February 2007. I forwarded it to you with an invitation to make observations, which you sent on 24 March 2007.

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 was designed to constitute a reserve pool from which to recruit linguistic administrators in the field of translation having Czech as their main language(1).

She 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 (French) into her main language (Czech) of a general text relating to the activities of the European Union. The complainant's test (c) was awarded 17.5 points out of 40, while the pass-mark was 20 points.

By letter of 1 June 2006, the complainant asked for a corrected version of her test (c) in order to understand the reasons for the mark awarded and to improve her future performance. She also requested that her test (c) be reviewed.

By letter of 29 June 2006, EPSO responded as follows:

• Unlike a standard examination, Open Competition EPSO/AD/5/05 involved an evaluation of the comparative merits of all candidates.
• The complainant's test was corrected anonymously by markers on the basis of a correction grid established by the Selection Board. The Board checked that the correction criteria were correctly applied by the markers; examined their observations; and determined the complainant's test result.
• After a new review, the Board regretted to confirm the mark awarded for the complainant's test.
• The complainant's test paper:
  1. contained a considerable number of omissions;
  2. contained a considerable number of errors in understanding; and
  3. did not satisfactorily meet the quality criteria established by the Selection Board.
• EPSO provided the complainant with an unmarked copy of her written test (c), together with the evaluation sheet for that test, which reflected the Board's final decision. The Board also explained that the markers' evaluations formed part of its deliberations and were thus covered by the secrecy foreseen by the rules in force, which was why they could not be divulged.

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

"● 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 contained, 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 17.5 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."

By further letter of 2 July 2006 to EPSO, the complainant admitted that, after having re-read her test (c), she found some errors, but disagreed that her translation contained a considerable number of omissions or errors in understanding. She added that her errors were rather linked to a lack of time for re-reading her test paper and bad time-management on her part.

In its reply of 13 July 2006, EPSO stated that it considered that it had provided the complainant with all of the necessary information concerning the evaluation of her test, and referred to its previous correspondence.

In her further letter of 17 July 2006 to EPSO, the complainant maintained that, on the basis of information received from EPSO, she, unfortunately, could still not understand the evaluation of her test (c) and the errors made therein. She took the view that a more detailed correction grid containing examples of serious errors that she could have committed, the criteria concerned, and the extent of the errors would be useful in this regard. The complainant added that providing this information would be in line with the Ombudsman's draft recommendation in case 674/2004/(MF)PB.

In its last reply of 27 July 2006, EPSO stated that the Selection Board considered that the evaluations of the complainant's test paper carried out by three independent markers provided sufficient proof with respect to the quality of that paper. EPSO added that the evaluations were based not only on individual errors, but also on the global assessment of the paper as a translation, from a reader's point of view. EPSO finally stated that, having regard to the secrecy inherent in the Board's work, the correction grid was not provided to candidates. In this context, EPSO drew the complainant's attention to the Ombudsman's decision on complaint 324/2003/MF.

On 11 September 2006, the complainant submitted her complaint to the European Ombudsman. She took the view that none of the three requests she sent to EPSO received a satisfactory answer containing concrete information. Therefore, the complainant alleged that EPSO failed to provide her with sufficiently precise information on the errors identified in her test (c). She claimed that EPSO should provide her with more precise information on those errors, in order to enable her to understand the evaluation of the test.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO first summarised the facts giving rise to the present complaint. Besides the facts summarised in the section entitled "The complaint" above, it followed from the opinion that, upon receiving the complainant's request of 1 June 2006 for a review of her test (c), the Selection Board proceeded to review her test paper. Subsequently, the Board asked EPSO to inform the complainant of its decision, which EPSO did by letter of 29 June 2006.

Further, EPSO pointed out that, in conformity with the pertinent statutory provisions, the Selection Board in Open Competition EPSO/AD/5/05 relied on assessors (markers) who served in an advisory role in the framework of the correction of the tests. In order to be able to carry out their work properly, the markers received instructions from the Board concerning the working methods which they were to apply to all papers, with a view to guaranteeing an equal and homogeneous comparison of all candidates. These instructions formed an integral part of the Board's work, the secret character of which was foreseen in Article 6 of Annex III of the Staff Regulations.

Each test was assessed by at least two markers who worked with photocopies of tests on which no reference to the candidates' names appeared. In the complainant's case, the Selection Board, having taken note of the two markers' assessments, decided to proceed to a third correction before determining the final mark.

EPSO went on to state that, after checking that the correction criteria had been properly applied by the markers and after examining their remarks and observations, the Board arrived at a numerical result for this 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 page 2 above under "The Complaint", and stated that the complainant's performance was deemed to be insufficient with respect to each of these criteria (resulting in a mark below 20 points).

EPSO added that, according to the case-law of the Community Courts relating to competitions(2), notification of a numerical mark and the sending of the Selection Board's evaluation sheet constituted a sufficient explanation for a negative decision. Such an explanation did not infringe the rights of unsuccessful candidates. It enabled them to know the value judgement made regarding their performance and to verify that they did not obtain the number of points required by the relevant notice of competition for being admitted to the next stage of the competition.

Further, EPSO reiterated that, at the time of assessing a candidate's performance, the Selection Board did not write any notes or corrections on the candidate's script. Therefore, it could not provide more precise and focused information than that already conveyed by means of the evaluation sheet. EPSO was thus unable to inform the complainant of the errors which the Board had identified in her test, since a document containing such information did not exist. In this regard, EPSO pointed out that the Court of First Instance had found that the corrections need not appear on the candidates' test papers(3).

EPSO's conclusion was that the Selection Board's decision concerning the complainant's test (c) had been duly reasoned by means of communicating to her (i) the numerical mark for that test; (ii) the Board's evaluation sheet; and (iii) the further explanation contained in the letter of 29 June 2006. According to EPSO, it was not the Board's duty, in a competition, to identify, for each of the candidates, how serious or important each of their errors and omissions were, as would be required for an academic examination. Moreover, the Board could not supply such information since it lacked the authority to take on responsibilities going beyond its remit, which was to select staff with a view to satisfy the needs of the service.

The complainant's observations

With respect to EPSO's reference to the review of her test (c), the complainant queried what EPSO understood by the term "review", namely, whether it meant a simple re-counting of the points or a re-correction of the test.

Further, the complainant pointed to (i) EPSO's last reply to her dated 27 July 2006, in which it stated that the Selection Board considered that the evaluations of her test paper carried out by three independent markers provided sufficient proof concerning the quality of that paper; and (ii) EPSO's opinion according to which the Board, having taken note of the two markers' assessments and comments, decided to proceed to a third correction before determining her final mark. The complainant pointed out that the latter information was not provided to her earlier and showed that doubts existed concerning the evaluation of her test paper.

The complainant went on to state that, given that the Selection Board determined the final mark after having taken note of the markers' assessments, the members of the Board possessed only indirect information concerning the candidates' performance. In this regard, the complainant stated that it seemed to her that none of the Board's members had Czech as his/her mother tongue and that they had thus no means of verifying the information at the source.

The complainant also pointed out that her test paper was found to be insufficient both as regards the comprehension of the source language and the source text (criterion 1) and mastery of the target language (criterion 2). Furthermore, according to EPSO's letter of 29 June 2006, this evaluation was based on the assessment that her test paper contained a considerable number of omissions and errors in understanding. The complainant took the view that these two reasons related to criterion 1 (comprehension of the source language and the source text), but nothing was said about criterion 2 (mastery of the target language). The complainant added that the reasons given by EPSO were so vague that she would regard them as a tautology: "(insufficient because insufficient)."

The complainant concluded that there was no element in EPSO's opinion that enabled her to link it to her work. Moreover, EPSO's answers, and, in particular, its first letter of 29 June 2006, gave her the disagreeable impression that followed from reading a standard letter.

THE DECISION

1 Alleged failure to provide sufficiently precise information on the errors identified in the complainant's test (c) 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. She failed written test (c), which required candidates to translate from their first compulsory source language, which in the complainant's case was French, into Czech a general text relating to the activities of the European Union. The complainant obtained 17.5 points out of 40 (pass-mark 20) in test (c).

In her complaint to the European Ombudsman, the complainant alleged that EPSO failed to provide her with sufficiently precise information on the errors identified in her test (c), and claimed that EPSO should provide her with more precise information on those errors, in order to enable her to understand the evaluation of the test.

The complainant referred mainly to EPSO's letter of 29 June 2006, in which the latter informed her that the Selection Board reviewed her test paper and confirmed the score awarded for it. EPSO also explained that the test paper contained (i) a considerable number of omissions; (ii) a considerable number of errors in understanding; and (iii) did not satisfactorily meet the quality criteria established by the Board. EPSO also provided the complainant with an unmarked copy of the test, together with the Board's evaluation sheet for that test.

1.2 In its opinion, EPSO considered that the Selection Board's decision concerning the complainant's test (c) had been duly reasoned by means of communicating to her (i) the numerical mark for that test; (ii) additional information contained in the evaluation sheet; and (iii) the further explanation contained in its letter of 29 June 2006.

Further, EPSO explained what skills were assessed under criteria 1 and 2 of the evaluation sheet, and stated that the complainant's performance was deemed to be insufficient with respect to each of these criteria.

EPSO also stated that, according to the case-law of the Community Courts relating to competitions, notification of a numerical mark and the sending of the Selection Board's evaluation sheet constitute a sufficient explanation for a negative decision. It further added that it is not the Board's duty, in a competition, to identify, for each of the candidates, how serious or important each of their errors and omissions were.

EPSO added that, given that the Selection Board did not write any notes or corrections on the candidates' test papers, it could not provide more precise and focused information than that already conveyed by means of the evaluation sheet. In this regard, EPSO pointed out that the Court of First Instance has found that the corrections need not appear on the candidates' test papers.

EPSO concluded that it was therefore unable to inform the complainant of the errors which the Board had identified in her test, since a document containing such information did not exist.

1.3 The Ombudsman notes that the present complaint essentially concerns the candidates' access to information indicating the seriousness and 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, as in the present case, the evaluation sheet prepared by the Board concerns a translation test, 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(4);
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"(5);
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."(6)

1.4 In light of the above, the Ombudsman examined the evaluation sheet which EPSO sent 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:

"● 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 17.5 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."

1.5 Furthermore, in addition to the information contained in the evaluation sheet, EPSO provided the complainant with supplementary information on the errors identified in her test paper by letter of 29 June 2006. In that letter, EPSO informed the complainant that her test paper:

1. contained a considerable number of omissions;
2. contained a considerable number of errors in understanding ; and
3. did not satisfactorily meet the quality criteria established by the Board.

1.6 In addition, by letter of 27 July 2006, EPSO informed the complainant that the evaluations, carried out by three independent markers, are based not only on individual errors, but also on the reader's global assessment of the paper as a translation.

1.7 Moreover, the Ombudsman recalls that the translation test in question aimed at assessing the candidates' knowledge and abilities which were necessary for translating into their main language complex texts mainly of a political, legal, economic, financial, scientific or technical nature relating to all the spheres of the European Union's activity. In the 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(7).

1.8 In light of the above, the Ombudsman considers that, by providing the complainant with the Selection Board's evaluation sheet and the additional information contained in its letters of 29 June and 27 July 2006, EPSO adequately indicated the Board's assessment regarding her errors. Therefore, the Ombudsman finds no maladministration as regards the complainant's allegation and considers that her related claim cannot be sustained.

1.9 Finally, in her observations, the complainant appears to question (i) whether the review of her test implied a simple re-counting of the points that she had been awarded or a re-correction thereof; and (ii) the fact that the Selection Board determines the final mark after having taken note of the assessments made by the markers and the related lack of direct information for the Board members concerning the candidates' performance. In this regard, the Ombudsman considers that, in order to be admissible for the purpose of the Ombudsman's inquiry, these observations do not constitute new allegations or claims. Moreover, any additional allegations or claims would necessarily have to be the object of prior administrative approaches to EPSO. Therefore, these observations are not addressed any further in the present decision.

2 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

---

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

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

(3) EPSO did not cite a specific case. The Ombudsman understands it to refer to paragraph 61 of Case T-19/03 Konstantopoulou v Court of Justice, cited in footnote 2 above.

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

(5) See point 1.6 of the draft recommendation.

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

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