Strasbourg, 17 December 2004

Dear Ms M.,

On 13 October 2003, you made a complaint to the European Ombudsman against the European Personnel Selection Office (EPSO) concerning access to your practical test in Open competition COM/C/1/02 (French-speaking typists) and the marks and detailed comments of the examiners regarding your practical test.

On 14 November 2003, I forwarded the complaint to the Director of EPSO.

On 25 February 2004, I received an opinion from the Commission, which was expressed as containing the joint views of EPSO and the Commission.

On 10 March 2004, I forwarded the opinion to you with an invitation to make observations. No observations were received from you. In a telephone conversation with my office on 1 October 2004, you maintained your claims.

On 4 November 2004, I submitted a proposal for a friendly solution to EPSO. A copy of my proposal was sent to you (by post and e-mail) and, for information, to the Commission.

On 10 December 2004, I received the answer from the Commission (expressed as containing the joint views of EPSO and the Commission).

On 13 December 2004, you confirmed by phone that a friendly solution had been brought about.

I am writing to let you know the results of the inquiries that have been made. As an annex to this decision, I send you a copy of your written examination script.

THE COMPLAINT

According to the complainant, the facts are, in summary, as follows:

In July 2003, the complainant took part in the practical test of competition COM/C/1/02 (French-speaking typists). She did not pass her test and was therefore excluded from the competition.

On 24 September 2003, she asked the European Personnel Selection Office (EPSO), which organised the competition, to send her copies of all her practical examination documents: the questions of the test, the document typed by her (examination script) and the corrected version of that document.

On 2 October 2003, a copy of her final evaluation sheet (with her marks) was sent to her.

Afterwards, she called EPSO to get more information and the President of the Selection Board stated that the document that she had received was the only document of the practical examination sent to candidates.

On 13 October 2003, she submitted a complaint to the European Ombudsman against EPSO.

She alleged that EPSO, which organised the competition, failed to send her a copy of her examination script and the questions of the test.

She claimed that she should have access to her examination script and the questions of the test, in order to know her errors and thus to prepare herself better for future tests.

THE INQUIRY

The Commission's opinion

The opinion sent by the Commission (with reference to EPSO acting on behalf of the Selection Board) can be summarised as follows.

Competition COM/C/1/02 was published in Official Journal C18A of 22 January 2002 and was organised with the aim of drawing up a reserve list of French speaking typists. The complainant applied for this competition. As she was among the best candidates after the preselection tests and written tests, she was invited to take part in the practical and oral tests which took place on 27 May 2003. Given that she obtained 7 points out of 20 (the pass mark was 10) in the practical test, the Selection Board could not place her on the reserve list.

On 23 July 2003, the complainant was informed of her results.

On 24 September 2003, the complainant requested copies of her practical examination documents (the questions and her script).

On 2 October 2003, EPSO, on behalf of the Selection Board, provided her with a copy of her final evaluation sheet containing the comments of the Selection Board on her practical examination.

The Commission pointed out that the evaluation sheet contained all the explanations concerning the complainant's mistakes, which could help her improve in the future. According to the Commission, the evaluation sheet clearly demonstrated that the instructions on the page-setting, page-format, insert mode, change of position and corrections of the text were not followed accurately and completely.

As regards the complainant's request for a copy of her typed script, the Commission stated that given the nature of the test, the corrections and comments are made on the original scripts. The Commission also argued that, in accordance with the established case law (cases Innamorati T-289/94 and Alexandratos and Panagiotou T-233/02), the obligation to give a reason does not imply the communication of the annotated copies, which contain the assessments made by the Selection Board.

The Commission also stated that the communication of the mark obtained in the test is a sufficient provision of a reason for the Selection Board's decision. The Commission thus argued that the reasons for the complainant's failure appeared on the final evaluation sheet received by the complainant since it included not only the final mark for the complainant's test but also complementary information concerning her results.

As regards the complainant's request for the disclosure of the questions of the practical test, the Commission put forward that, in order to respect the principle of equal treatment, examples of tests of previous open competitions were accessible exclusively through the Internet page of EPSO. The Commission also stated that the examples of the practical tests for typists (of French and German language) were expected to be published shortly, given that the last two competitions for French and German speaking secretaries-typists were closed.

The complainant's observations

No observations were received from the complainant.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion sent by the Commission, the Ombudsman was not satisfied that the complainant had received an adequate response to all her allegations and related claims. In accordance with Article 3(5) of the Statute(1), the Ombudsman therefore wrote to EPSO (and to the Commission for information) on 4 November 2004, to propose a friendly solution on the basis of the following analysis of the issue in dispute between the complainant and EPSO:

1.1. The complainant alleged that EPSO failed to send her a copy of her examination script. She claimed that she should have access to her examination script in order to know her errors and thus to prepare herself better for future tests.

1.2. The Commission put forward that the final evaluation sheet, a copy of which was sent to the complainant, contained, in addition to the complainant's marks, detailed comments and an explanation concerning her mistakes, which, according to the Commission, could help the complainant improve in the future.

The Commission also took the view that, given the specific nature of the practical typing test, the examiners wrote their corrections relating to the assessment of a candidate on the candidate’s examination script itself. The Commission argued that according to the case law, the obligation to give reasons for a decision does not render compulsory the communication of the marked script bearing the examiner's assessments.

1.3. The Ombudsman points out that the complaint concerns the Commission’s refusal to provide a copy of a document (the complainant’s own marked examination paper), not the adequacy of the reasons given by the Selection Board for the complainant’s exclusion.

1.4. The Ombudsman recalls that on 18 October 1999, he sent a special report to the European Parliament following his own-initiative inquiry into the secrecy which formed part of the Commission's recruitment procedure(2). The special report included a formal recommendation that, in future recruitment competitions, the Commission should give candidates access to their own marked examination papers on request. On 7 December 1999, the President of the European Commission wrote to the European Ombudsman to inform him that:

"The Commission welcomes the recommendations you made in this report and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination papers, upon request, from 1 July 2000 onwards."(3)

1.5. Since the Commission has not subsequently informed the European Ombudsman and the European Parliament of any intention to alter this commitment, the Ombudsman considers that it remains binding and trusts that it will continue to be honoured.

1.6. In view of the above, the Ombudsman's provisional conclusion was that EPSO's failure to give the complainant access to her examination script upon her request, could be an instance of maladministration.

The Proposal of a Friendly Solution

On the basis of the above consideration and in accordance with Article 3(5) of the Statute of the Ombudsman, the Ombudsman made the following proposal to EPSO for a friendly solution:

EPSO could give the complainant access to her own marked examination paper.

The Commission's Reply

On 10 December 2004, the Ombudsman received the answer from the Commission (expressed as containing the joint views of EPSO and the Commission). The Commission and EPSO responded postively to the proposal for a friendly solution by sending a copy of the complainant's marked examination paper.

The Commission and EPSO also presented in summary the following comments.

As a result of the commitment by Mr Prodi to give to the candidates access to the copies of their marked examination papers (written tests) on their request, the Commission adopted legal and administrative measures for a practical execution of this commitment. The Commission and EPSO noted therefore that the complainant's practical typing test was a part of the oral test and could not be classed as the written test strictly speaking. For that reason, the measures applied to execute Mr Prodi's commitment as regards the written tests were not applied to the complainant's practical test. However, given the explicit request of the Ombudsman and with a concern for transparency, EPSO decided to convey to the Ombudsman a copy of the complainant's practical test. This decision should be considered as exceptional and not set a precedent.

The Commission and EPSO also expressed the view that the corrections annotated on the copy of the complainant's practical test will allow her to know the errors that she made.

The Commission and EPSO also informed the Ombudsman that in the near future, the Administrative Council of EPSO would reflect on issues of transparency in relation to candidates in European competitions. EPSO committed itself to inform the Ombudsman of these reflections.

Finally, the Commission and EPSO stressed that the evaluators' corrections are part of deliberations and do not express the Selection Board's overall judgement. The evaluators indicated on the separate sheet the complainant's mistakes. On the basis of it, the Selection Board determined final marks which were contained in the final evaluation sheet (which had already been sent to the complainant). Every mistake identified on the complainant's examination paper resulted in subtraction of a number of points. EPSO also indicated, by way of example, practical typing tasks, which were not properly performed by the candidate.

The Complainant's Observations

In a telephone conversation with the Ombudsman's office on 13 December 2004, the complainant confirmed that a friendly solution had been brought about.

THE DECISION

1 Access to the examination script

1.1 On 4 November 2004, the Ombudsman proposed a friendly solution between the complainant and EPSO. This was based on the conclusion that there could be an instance of maladministration because EPSO had failed to send the complainant a copy of her examination paper.

1.2 The friendly solution consisted in asking EPSO to give the complainant access to her own marked examination script.

1.3 On 10 December 2004, the Commission and EPSO responded postively to the proposal for a friendly solution by sending a copy of the complainant's marked examination paper. They expressed the view that the corrections shown on the copy will allow the complainant to know the errors that she made.

1.4 In a telephone conversation with the Ombudsman's Office on 13 December 2004, the complainant confirmed that a friendly solution had been brought about.

2 Conclusion

Following the Ombudsman's initiative, it appears that a friendly solution to the complaint has been agreed between EPSO and the complainant. The Ombudsman therefore closes the case.

The President of the Commission and the Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) "As far as possible, the Ombudsman shall seek a solution with the institution or body concerned to eliminate the instance of maladministration and satisfy the complaint".

(2) Special report of the European Ombudsman following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedure: http://www.ombudsman.europa.eu/special/en/default.htm.

(3) See press release no. 16/99 of the European Ombudsman of 15 December 1999.