The background to the complaint

1. The complainant participated in Open Competition EPSO/AST/111/10. The European Personnel Selection Office ('EPSO') organised this competition in order to draw up a reserve list from which to recruit assistants in the secretarial field.

2. She successfully sat the admission tests (Computer-Based Tests) and was invited to take part in the assessment exercises. The assessment exercises consisted of four tests, namely (a) a structured interview; (b) an in-tray exercise; (c) a practical test involving the preparation and/or processing of an MS Word document; and (d) a practical test to assess the drafting skills (particularly spelling, syntax and grammar). While tests (a) and (b) were meant to asses the candidates' general competencies in the field, tests (c) and (d) aimed to evaluate candidates' job-specific knowledge.

3. On 8 August 2011, EPSO informed the complainant that she did not obtain the necessary pass marks in the specific knowledge tests (referred to as 'practical tests'). Thus, EPSO could not place her name on the reserve list of successful candidates. EPSO also provided the complainant with a 'competency passport', which indicated the overall marks she obtained for the assessment centre exercises, as well as a breakdown of marks in respect of the tests aimed at assessing general and specific knowledge[1].

4. On 9 August 2011, the complainant asked EPSO to review her practical tests (c) and (d).

5. On 4 October 2011, EPSO provided the complainant with unmarked copies of her practical tests. She was also informed that the correction criteria applied by the markers/assessors form part of the confidential proceedings of the Selection Board and are, therefore, not accessible to candidates.

6. On 17 October 2011, the complainant reacted to EPSO's above reply. She stated that she was entitled to be granted access to the evaluation sheet. Moreover, the complainant emphasised that a new competition was planned and, "in order to improve her skills, she had to understand where she had failed".

7. On 2 December 2011, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

8. In her complaint to the Ombudsman, the complainant submitted the following allegation and claim.

Allegation

EPSO failed to review the complainant's practical tests and to provide her with a detailed explanation of the errors identified in these tests.

Claim

EPSO should provide her with copies of the corrected practical tests and/or the evaluation sheets.

The inquiry

9. On 20 January 2012, the Ombudsman opened an inquiry and asked EPSO to submit an opinion on the complainant's allegation and claim by 30 April 2012.

10. On 16 May 2012, EPSO sent the opinion, which was forwarded to the complainant with an invitation to submit observations on it. The complainant sent her observations on 28 June 2012.

11. On 14 September 2012, in accordance with Article 3(2) of the Ombudsman's Statute[2], the Ombudsman's services carried out an inspection of the relevant documents in EPSO's file[3]. EPSO considered the inspected documents to be confidential[4]. This meant that the public and the complainant could not have access to them.

12. On 12 October 2012, the Ombudsman forwarded to the complainant a copy of the inspection report and invited her to submit observations on it. The complainant did not sent observations.

The Ombudsman's analysis and conclusions

A. Alleged failure to review the complainant's practical tests and to provide her with a detailed explanation of the errors identified in these tests

Arguments presented to the Ombudsman

13. In support of her allegation, the complainant argued that EPSO failed to provide her with copies of the corrected practical tests and/or the evaluation sheets.

14. In its opinion, EPSO first noted that in respect of all the assessment centre tests, the Selection Board used objective marking criteria drawn up prior to the tests. However, the comparative assessment of merits of candidates is part of the proceedings of the Selection Board, which are covered by the secrecy surrounding such proceedings. According to settled case-law, communication of the marks obtained constitutes a sufficient statement of reasons for decisions of Selection Boards. However, EPSO provided the complainant with more information than what is required by the applicable law.

15. In this respect, the complainant received her competency passport containing a detailed evaluation of her performance at the assessment centre. This document included her 'competency profile', a 'competency overview' and her 'relative strengths and weaknesses' in all the seven competencies assessed. Furthermore, the comments of the Selection Board concerning the seven general competencies were all included in the 'relative strengths and weaknesses' section of her competency passport, along with her total and partial marks.

16. As regards the complainants' practical tests (c) and (d), these were marked using a detailed and comprehensive grid validated 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, EPSO informed the complainant about the marking criteria for tests (c) and (d) and she received copies of those tests.

17. Furthermore, given the technical nature of tests (c) and (d) ‒ respectively, a practical test involving the preparation and/or processing of an MS Word document and a practical test to assess the candidate's drafting skills (particularly spelling, syntax and grammar) ‒ the Selection Board decided not to include any comments regarding the candidates' specific competencies in their competency passports.

18. EPSO concluded that the complainant received: (i) her total marks; (ii) her partial marks for all competencies assessed; (iii) the comments by the Selection Board concerning the seven general competencies assessed; (iv) information about the marking criteria for tests (c) and (d); and (v) a copy of tests (c) and (d).

19. In her observations, the complainant noted that she had asked for her evaluation sheet and not for a comparative assessment with the other candidates. She stated that EPSO only provided her with (a) the competency passport (which all candidates received) and (b) copies of the uncorrected practical tests (c) and (d). Thus, EPSO could not argue that it provided her with more information than what is required by the applicable law, as it stated in its opinion. Finally, contrary to EPSO's statements, she did not receive information about the marking criteria for tests (c) and (d).

The Ombudsman's assessment

As regards the complainant's argument that EPSO failed to review her practical tests

20. The Ombudsman notes that the complainant asked EPSO to review her practical tests (c) and (d) on 9 August 2011. The Ombudsman recalls that EPSO is responsible for adopting the legal framework of a competition, that is, the notice of competition, which the Selection Board has to respect. The notice of competition provides candidates with an effective mean of redress, namely, to have their tests reviewed by the Selection Board. In the present case, the Selection Board failed to undertake any review of the complainant's tests and thus, failed to comply with this legal obligation. Nor did EPSO take a position on the complainant's argument in its opinion. This could amount to an instance of maladministration.

21. Nevertheless, in her observations on the opinion, the complainant did not maintain her argument. In these circumstances, the Ombudsman considers that no further inquiries are justified into this aspect of the complainant's allegation.

As regards the complainant's argument that EPSO failed to grant access to the evaluation sheets and/or to provide copies of the corrected practical tests

22. The Ombudsman notes that this aspect of the present case is identical to a matter submitted to the Ombudsman for inquiry in the framework of another complaint[5] on which the Ombudsman's decision will be issued on the same date as the present one. EPSO adopted the same position in both cases and the Ombudsman's analysis in both cases will thus be the same.

23. In reply to the complainant's argument that EPSO failed to provide copies of her corrected practical tests, the Ombudsman points out that, as rightly argued by EPSO, pursuant to case-law[6], the Selection Board in the present case complied with its legal obligation to justify its decision by providing the complainant with the marks obtained in the written tests and with her unmarked examination papers.

24. However, the fact that the Selection Board complied with its strict legal obligations does not dispense EPSO from respecting its own public commitments to act in accordance with principles of good administration, made in the framework of the Ombudsman's own-initiative inquiry OII/05/2005/PB[7]. In reply to the Ombudsman's above-mentioned own-initiative inquiry, EPSO made a commitment to use in the future a model evaluation sheet which contains, on the one hand, (a) the evaluation criteria set out in the published notices of competition (including the various elements eventually evaluated by the board for each criterion) and the level of performance attained (ranging from excellent to insufficient), and, on the other, (b) in addition to the global mark, the partial marks awarded by the board for each criterion specified in the notice of competition.

25. From EPSO's opinion, the Ombudsman understands that, as from 2010, the competency passport which each candidate taking part in the assessment centre tests now receives replaced the evaluation sheets used previously.

26. While the complainant's competency passport contained the Selection Board's detailed assessment of her general competencies, including partial marks awarded for each general criterion/competency evaluated, only the final mark was provided with respect to practical tests (c) and (d). No specific 'competencies' assessed in these tests were mentioned, and no partial marks corresponding to the specific competencies assessed in tests (c) and (d) were included.

27. The Ombudsman considers, therefore, that the information provided in the complainant's competency passport as regards tests (c) and (d) cannot reasonably be considered to replace the evaluation sheet which EPSO agreed to provide candidates with in the context of the Ombudsman's own-initiative inquiry.

28. EPSO explained in its opinion that the Selection Board decided not to include any comments regarding the candidates' specific knowledge in their competency passports because of the "technical nature" of these tests. EPSO also referred to the secrecy of the Selection Board's proceedings.

29. During the inspection of the file, the Ombudsman's services noted that the markers' evaluation sheets concerning the complainant's practical tests (c) and (d) mention in detail the evaluation criteria/competencies which were assessed and indicate the partial marks awarded for each criterion/competency. Therefore, if evaluation criteria and partial marks were used, the Ombudsman does not see why the "technical nature of the tests" could prevent their inclusion in the competency passport and thus their disclosure to candidates. The Ombudsman cannot help noticing that EPSO's 'old style' competitions for assistants (organised before 2010) also included 'specific knowledge' or practical tests aimed at assessing candidates' drafting skills and their ability to prepare/process an MS Word document. The very same "technical nature" of these tests did not prevent EPSO, at that time, from committing itself to providing a detailed evaluation sheet containing the assessment criteria, as well the breakdown of candidates' marks, in addition to their global mark. The Ombudsman is therefore utterly puzzled by the argument put forward by EPSO, which he finds entirely unconvincing.

30. Finally, it is not clear why disclosing the evaluation criteria/competencies and the partial marks concerning the "general competency tests" does not interfere with the secrecy of the Selection Board's proceedings, while disclosing the evaluation criteria/competencies and partial marls in relation to "technical tests" could.

31. In light of the above, the Ombudsman takes the view that, by failing to indicate in the competency passport the evaluation criteria/competencies assessed in respect of the practical tests and the partial marks for these criteria/competencies, EPSO failed to comply with the commitment it made in the framework of the Ombudsman's own-initiative inquiry OII/05/2005/PB. This constitutes an instance of maladministration. In such situations, the Ombudsman's Statute requires the Ombudsman to seek a friendly solution to the case, aimed at satisfying the complainant's claim. In the present case, this is however not justified for the following reasons.

32. In the course of inspecting the file, the Ombudsman's services were informed that a general database[8] now exists, which is the electronic tool that generates the competency passport for each candidate at the end of the evaluation. With the exception of the global marks, the Selection Board did not include in that database any comments concerning the complainant's performance in practical tests (c) and (d). In addition, the inspection showed that EPSO did not have in its possession (i) any written records of communications between its services and the Selection Board of the competition, and (ii) any internal documents/written assessment drafted by the Selection Board concerning the complainant's practical tests (c) and (d). In light of the foregoing, the Ombudsman considers that making a proposal for a friendly solution suggesting that EPSO grant the complainant access to the Selection Board's evaluation sheets of her tests (c) and (d) is devoid of purpose because these documents do not exist. He will therefore close the case with a critical remark. Moreover, the Ombudsman will consider the appropriate way to deal with EPSO's refusal to act in conformity with its public commitments to the Ombudsman and to candidates concerning the extent of information it will provide to candidates who are unsuccessful in the competitions it organises.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

By failing to record and indicate, in the appropriate evaluation sheets or in the competency passport, (a) the evaluation criteria/competencies assessed in respect of the practical tests, and (b) the partial marks for these criteria/competencies, EPSO failed to comply with the commitment it made in the framework of the Ombudsman's own-initiative inquiry OII/05/2005/PB, and thus committed an instance of maladministration.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 29 April 2013

[1] According to the 'competency passport', the complainant scored 7 points out of 20 in test (c) and 4 points out 10 in test (d). Thus, her total score for practical tests (c) and (d) was 11 points out of 30, while the pass mark was 15 out of 30.

[2] Article 3(2) of the Ombudsman's Statute reads as follows: "The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned."

[3] Apart from the file concerning the present complaint, the Ombudsman's services also inspected the file concerning a similar complaint, that is, complaint 2022/2011/RT.

[4] The documents inspected were the following: 1. Copy of the Selection Board's evaluation of the complainant's application; 2. Copy of practical test (c); 3. Copy of practical test (d); 4. Copy of the markers' evaluation sheet of the complainant's test (c); 5. Copy of the markers' evaluation sheet of the complainant's test (d); 6. Copy of the general instructions provided to candidates in competition EPSO/AST/111/10 for practical tests (c) and (d); 7. Copy of the complainant's uncorrected practical test (c) (this document was not confidential); 8. Copy of the complainant's uncorrected practical test (d) (this document was not confidential).

[5] See decision on complaint 2022/2011/RT.

[6] See cases F-73/06 Van Neyghem v Commission [2007] ECR-SC I-A-1-441 and II-A-1-2515, paragraph 77 and T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 22, according to which, providing candidates with a copy of the test script as they drafted it, albeit without corrections, together with the communication of the marks, constitutes a sufficient statement of reasons for decisions of selection boards and enables the Union courts to carry out a judicial review appropriate to disputes of that kind. It is not required to clarify the answers of candidates considered to be insufficient or to explain why these answers were considered insufficient.

[7] See decision on complaint 2050/2011/RT, available at: http://www.ombudsman.europa.eu/en/cases/home.faces

[8] According to EPSO, data concerning the participation of a candidate in the Assessment Centre phase of a given EPSO competition (for assistants, administrators or other fields) is recorded in a database entitled 'Assessment Manager'.