Strasbourg, 20 October 2006

Dear Ms T.,

On 29 May 2005, you made a complaint to the European Ombudsman concerning your exclusion from Open Competition EPSO/C/11/03 (English-language secretaries).

On 30 June 2005, I forwarded the complaint to the Director of the European Personnel Selection Office ("EPSO"). EPSO sent its opinion on 10 October 2005. I concluded that EPSO's opinion did not sufficiently address one aspect of your complaint. On 25 October 2005, I requested EPSO to provide me with more detailed information, and informed you accordingly. On 22 November 2005, EPSO sent me the requested detailed information. On 7 December 2005 I forwarded to you EPSO's reply of 22 November and its opinion of 10 October 2005, inviting you to submit observations.

On 30 January 2006, you submitted your observations. On that same date, you submitted a communication entitled "Letter-of-Intent".

On 8 February 2006, you informed my legal officer concerned, Mr Peter Bonnor, that you would later submit further observations.

On 20 March 2006, you sent me additional detailed observations.

On 30 March 2006, you informed Mr Bonnor that you would need an additional deadline of two weeks. Mr Bonnor replied by e-mail dated 3 April 2006, informing you that you were welcome to submit additional documents, and asking you to indicate whether the additional document concerned would contain your final observations.

On 31 March 2006, you sent me additional detailed comments (also sent by fax 3 April 2006).

On 12 April 2006, you sent me a handwritten letter containing further detailed observations.

On 13 April 2006, you sent me another handwritten letter containing further detailed observations. In this letter, you indicated that this letter concluded your observations.

On 3 May 2006, you sent Mr Bonnor an e-mail.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

By letter of 19 October 2004, the European Personnel Selection Office ("EPSO") informed the complainant, who is employed at the European Commission, that she had not obtained a sufficiently high mark to be admitted to the oral test in Open Competition EPSO/C/11/03 (English-language secretaries). Out of five tests, the complainant had failed to obtain the required pass mark in the penultimate test (d). Failure to obtain the pass mark in one test implied elimination from the competition. In her complaint, the complainant enclosed a copy of her written test (d).

On 7 November 2004, the complainant wrote to EPSO, apparently questioning (i) the mark that she had obtained and (ii) the competence of the evaluators (no copy of her letter was enclosed in her complaint to the European Ombudsman). On 23 November 2004, EPSO replied to the complainant, explaining to her the nature of the competition: the assessment was comparative, and the work of the Selection Board is secret. EPSO stated that it could not disclose any information about the evaluators, in order to guarantee their independence and the objectivity of their work.

In her complaint to the Ombudsman, the complainant alleged that she had been wrongly eliminated from the competition because she had used what she referred to as an "international standard for English language".

The complainant claimed that her marks should be reconsidered.

THE INQUIRY

EPSO's opinion and reply

Having examined the opinion submitted by EPSO, the Ombudsman concluded that it was necessary to ask the institution for more detailed comments on one aspect of the complaint. The following is a summary of EPSO's opinion and its reply to the Ombudsman's request for more detailed comments.

Background

Since the complainant obtained 12 out of 40 points in test (d), the pass mark being 20, the Selection Board was unable to admit her the next stage of the Open Competition, that is, the oral test. By letter of 19 October 2004, the complainant was informed of her results in the pre-selection tests and the written test and of the Board's decision not to admit her to the oral test.

The complainant contacted EPSO by e-mail on 26 October 2004, requesting a copy of her marked written test. That same day, EPSO sent the complainant a copy of her written test (d) together with the evaluation sheet drawn up by the Selection Board. It added that, in view of the secret nature of the work of the Board, it was unable to provide detailed information on the marking criteria or the actual marking carried out by the markers.

On 7 November 2004, the complainant sent EPSO a letter asking the Selection Board to re-examine its decision on the marking of her written test.

EPSO replied on 23 November 2004, informing her that the Selection Board understood her disappointment but reminding her that this was a competition in which the candidates' merits were appraised comparatively and was not a classical ability test. She was also provided with information on the marking procedure applied. After a re-examination of her file, the Board regretted that it had to confirm 12/40 as the result of her written test.

Comments regarding the marking of the written test (d)

The task of the Selection Board is, unlike in an ability test, to make a comparative appraisal of the candidates' tests. In making this comparison, the Board thus identifies the best answer sheet and thus the best candidate.

Furthermore, according to the established case-law of the Community courts, the wide discretionary powers of the Selection Board imply that it "cannot be required, when giving reasons for a candidate's failure of a test, to identify the answers which were considered unsatisfactory or to explain why they were considered unsatisfactory"(1). In addition to the marks that she had obtained, the complainant had also received additional explanations of her performance in the form of a copy of the Board's final evaluation sheet.

With regard specifically to the allegation relating to the purported use of an "international standard for English", the background to the open competitions organised by EPSO was the following:

In order to meet the needs of the various departments for English-language secretarial staff, Open Competition EPSO/C/11/03 was organised by EPSO with an eye to drawing up a list of successful candidates from which vacant posts in the European institutions could be filled. Therefore - by definition - this competition was framed within a European context. The markers for this competition were selected from the staff of the institutions on the basis of their own skills and linguistic knowledge of language. EPSO points out that, in accordance with Article 28(a) of the Staff Regulations, " ... [an official may only be appointed on the condition that:] he is a national of one of the Member States of the Communities, unless an exception is authorised by the appointing authority [...]". By definition, the staff of the various institutions is therefore mainly European.

In Open Competition EPSO/C/11/03 all the markers who marked the complainant's test were native English speakers, as were the members of the Selection Board.

The evaluation sheet of which the complainant had received a copy contained all the reasons for the result given to her for test (d), that is, "badly constructed sentences, difficult to understand, incorrect terminology, poor command of main language, many grammar mistakes".

EPSO points out that, according to the established case-law of the Community courts(2), the Selection Board cannot be required, when giving reasons for a candidate's failure of a test, to identify the answers which were considered unsatisfactory or to explain why they were considered unsatisfactory.

There is no indication in the candidate's file that the Selection Board made any comment about the use of an "international standard" for English.

The complainant's observations

The complainant submitted observations in written communications dated 20 January 2006, 30 January 2006 (two communications), 31 January 2006, 20 March 2006, 31 March 2006, 12 April 2006, 13 April 2006 and 3 May 2006.

In her observations, the complainant maintained her complaint. She furthermore made a number of detailed comments on a broader range of issues(3), and indicated that she was seeking to effect general changes(4). For the purpose of the present inquiry, the complainant's comments can be summarised as follows:

(i)The complainant criticised, generally, the use of the English language within the EU Administration, and proposed that the EU administration should define specific standards regarding the kind of English used, adding that these standards should also be reflected in the marking of relevant tests(5).

(ii)The complainant appeared to suspect that ulterior motives could, in her case, have contributed, or wholly caused, the mark given to her by the Selection Board. She mentioned "racism"(6).

(iii)The complainant proposed that the marking methods in recruitment competitions, and the information provided to failed candidates, should generally be improved and made more transparent(7).

THE DECISION

1 Preliminary remarks - new issues raised by the complainant

1.1 By letter of 19 October 2004, the European Personnel Selection Office ("EPSO") informed the complainant, who is employed at the European Commission, that she had not obtained a sufficiently high mark to be admitted to the oral test in Open Competition EPSO/C/11/03 (English-language secretaries). Out of five tests, the complainant had failed to obtain the required pass mark in the penultimate test (d). Failure to obtain the pass mark in one test implied elimination from the competition. In her complaint, the complainant enclosed a copy of her written test (d). On 7 November 2004, the complainant wrote to EPSO, apparently questioning (i) the mark that she had obtained and (ii) the competence of the evaluators (no copy of her letter was enclosed in her complaint to the European Ombudsman). On 23 November 2004, EPSO replied to the complainant, explaining to her the nature of the competition, i.e., that the assessment was comparative, and the work of the Selection Board was secret. EPSO stated that it could not disclose any information about the evaluators, in order to guarantee their independence and the objectivity of their work. In her complaint to the Ombudsman, the complainant alleged that she had been wrongly eliminated from the competition because she had used what she referred to as an "international standard for English language".

1.2 In its opinion, EPSO rejected the complaint.

1.3 In her observations, submitted in several written communications, the complainant maintained her complaint. She furthermore made a number of detailed comments on additional issues, and indicated that she was seeking to effect general changes. For the purpose of the present inquiry, the complainant's comments can be summarised as follows:

(i) The complainant criticised, generally, the use of the English language within the EU Administration, and proposed that the EU administration should define specific standards regarding the kind of English used, adding that these standards should also be reflected in the marking of relevant tests.

(ii) The complainant appeared to suspect that ulterior motives could, in her case, have contributed, or wholly caused, the mark given to her by the Selection Board. She mentioned "racism".

(iii) The complainant proposed that the marking methods in recruitment competitions, and the information provided to failed candidates, should generally be improved and made more transparent.

1.4 The Ombudsman's letter informing the complainant about the opening of the present inquiry stated that:

"The allegation and claim that I have asked EPSO to submit an opinion on are the following:

The complainant alleges that she has been wrongly eliminated from the competition for using what she refers to as an international standard for English language.

The complainant claims that her marks should be reconsidered."

As noted above, the complainant made a number of detailed comments on a wider range of issues in her observations. Those issues are additional to the specific allegation made in the complainant's complaint of 29 May 2005. The Ombudsman notes that the complainant has not submitted evidence, in respect of those specific issues, of appropriate prior administrative approaches to the relevant institution or body(8). After a careful examination of the matter, the Ombudsman has therefore decided that it would not be appropriate to examine those additional issues within the framework of the present inquiry. The complainant is, however, free to submit her specific allegations and claims to the institution or body concerned, and to contact the Ombudsman again if she does not receive a timely and satisfactory reply.

2 The allegation of wrongful exclusion from competition

2.1 The complainant alleged that she had been wrongly eliminated from Open Competition EPSO/C/11/03 because she had used what she referred to as an international standard for English language.

2.2 In its opinion, EPSO explained that, in order to meet the needs of the various departments for English-language secretarial staff, Open Competition EPSO/C/11/03 was organised by EPSO with an eye to drawing up a list of successful candidates from which to fill vacant posts in the European institutions. Therefore - by definition - this competition was framed within a European context. The markers for this competition were selected from the staff of the institutions on the basis of their own skills and linguistic knowledge of language. EPSO points out that, in accordance with Article 28(a) of the Staff Regulations, " ... [an official may only be appointed on the condition that:] he is a national of one of the Member States of the Communities, unless an exception is authorised by the appointing authority [...]". By definition, the staff of the various institutions is therefore mainly European. In the Open Competition here concerned all the markers who marked the complainant's test were native English speakers, as were the members of the Selection Board. The evaluation sheet of which the complainant had received a copy contained all the reasons for the result given to her for test (d), that is, "badly constructed sentences, difficult to understand, incorrect terminology, poor command of main language, many grammar mistakes". EPSO pointed out that, according to the established case-law of the Community courts(9), the Board cannot be required, when giving reasons for a candidate's failure of a test, to identify the answers which were considered unsatisfactory or to explain why they were considered unsatisfactory. There is no indication in the candidate's file that the Board made any comment about the use of an "international standard" for English.

2.3 In her observations, the complainant maintained her complaint.

2.4 The Notice of Competition relevant to the present case stated that the competition was held for "English-language SECRETARIES" and that "Candidates must have a perfect knowledge of English and a satisfactory knowledge of one of the following languages: ..." (emphasis in original). In the complainant's case, the Board had noted a wide range of errors on the evaluation sheet given to the complainant: "badly constructed sentences", "difficult to understand", "incorrect terminology", "poor command of main language", "many grammar mistakes". According to the established case-law of the Community courts, the Selection Board has a wide margin of discretion in its assessment of candidates' test papers(10).

2.5 The Ombudsman notes that the complainant has specifically insisted that the Board's marking clearly excluded " international English". She has not made any precise arguments regarding a suspected refusal to recognise one or more specific styles of English (for example, American English), nor is it evident from her complaint and observations that she intended to refer to any such specific recognised style of English.

2.6 On the basis of the submissions made in the present inquiry, the Ombudsman has found no evidence of any kind that the Selection Board concluded that the complainant had used an "international standard" of English, let alone any evidence that it gave her the mark it did because she used any such perceived "international standard" of English.

2.7 In light of the foregoing, the Ombudsman considers that the complainant's allegation has not been substantiated, and that there has been no maladministration regarding this part of the case.

3 The claim that the marks should be reconsidered

3.1 The complainant claimed that her marks should be reconsidered.

3.2 In light of the Ombudsman's finding in point 2 above, this claim cannot be accepted.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO. The Ombudsman therefore closes the case.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) Case T-19/03 Konstantinopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107.

(2) Case T-291/94 Pimley-Smith v Commission [1995] ECR-SC I-A-209 and II-637.

(3) In her letter of 20 January 2006, the complainant announced that she would produce a more thorough analysis, declaring, amongst other things, that "[t]o state our purpose I might have to inform about a widespread below-capacity and for worldorder non-international/below-ethical-decency related staffing problem in the European Institutions (internal and external employee base). The initial phase of the study would be to collect sufficient and valuable documentation, in order to underline possible evidence."

(4) In a "letter-of-Intent" of 31 January 2006, the complainant stated, amongst other things, that "[i]n accordance with ethical principles as hereinabove in general terms referred to we will avoid any disruptive act(s), thought(s), wording(s), and/or capacity accumulation in disfavour of our employer, the European Commission. However, it is our duty to take a lead in initialising positive initiative and action wherever we have been enabled to, particularly in matters affecting our power of authority as en employee in service of the European Institutions.

Moreover, we feel very motivated and professionally liable in anything we do. We try to impose and influence our working environment - both professionally and private. We take responsibility with a view to confirm the new worldorder, nowadays imposed upon by the United States of America. Thereby we do indeed rely on the knowledge acquired by our american counterparts in matters of structure, logic, interrelational and linguistical ability, and many more. We stick to our intention of upgrading any systems up to international and non-discriminatory standard. We invest in as many opportunities as possible."

(5) For example, the complaint's letter of 20 March 2006, pp. 2-3.

(6) The complainant's letter of 20 March 2006, p. 6.

(7) For example the complainant's letter of 30 January 2006, p. 3.

(8) Article 2(4) Statute of the European Ombudsman:

“The complaint (...) must be preceded by the appropriate administrative approaches to the institutions and bodies concerned.”

The purpose of this requirement is to give the institution or body concerned the possibility to correct its behaviour, or at least to explain itself, before a complaint is made to the Ombudsman, and, subsequently, in case a complaint is lodged with the Ombudsman, to enable the Ombudsman to take into consideration the institution's reply when making a decision on the existence of sufficient grounds for opening an inquiry.

(9) Case T-291/94 Pimley-Smith v Commission [1995] ECR-SC I-A-209 and II-637.

(10) See, for example, Case T-267/03 Roccato v Commission, judgment of 26 January 2005, not yet reported, paragraph 41 and the references given therein (Joined Cases 112/73, 144/73, 145/73 Campogrande; Case T-153/95 Kaps; Case T-33/00 Martínes Páramo; Case T-19/03 Konstantopoulou).