Dear X,
On 11 May 1998 you complained to the European Ombudsman on behalf of Y (hereafter "the complainant") alleging the refusal of the Selection Board of open competition EUR/LA/101 to re-examine the marks Y had obtained and to provide more detailed information about the evaluation of Y's test.
On 4 September 1998 I forwarded the complaint to the President of the European Parliament. The Parliament sent its opinion on 23 November 1998 and I forwarded it to you with an invitation to make observations, if you so wished. On 31 December 1998, I received your observations on the Parliament's opinion.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complaint, the relevant facts were as follows:
In 1997 Y participated in open competition EUR/LA/101 (Greek language translators). However, by letter of 19 January 1998, the Chairman of the Selection Board informed him that he could not take part in the following stages of the competition, given that he only obtained 17 marks on test d) and that the requested minimum was 20 marks. Y, having considered that his performance at test d) had been misjudged, contacted X asking for an intervention.
On 22 January 1998 X wrote to the Chairman of the Selection Board asking to review the marks of Y and to forward to him the marks that each member of the Selection Board gave to Y. After considerable time had passed with no response on behalf of the Selection Board, X advised Y to address a similar letter, which Y did on 16 February 1998. In his reply dated 19 February 1998 the Chairman didn't consider the re-examination of Y's marks but pointed out that the evaluation of the papers was done in a strictly anonymous way and that the work carried out by Selection Boards is covered by the obligation of secrecy according to the case-law of the European Court of Justice. Therefore the Chairman could not provide more detailed information on the result of test d).
On 18 March 1998 Y wrote to the competitions and selection procedures service of DG 5 asking again for a re-examination of test d). On 24 March 1998 the head of service replied by stating that no mistake had taken place during the evaluation of Y's paper and the determination of Y's marks. Therefore, X lodged a complaint to the European Ombudsman alleging 1) the refusal of the Selection Board to provide more detailed information concerning the marks obtained and the evaluation criteria, 2) the refusal to review the marks of Y on test d) and the insufficiency of the reasoning given to that respect, and asking 3) that the decision to exclude Y from the competition be annulled.

THE INQUIRY

The European Parliament's opinion
In its comments, the Parliament stated that according to the case-law of the Court of Justice (Innamorati/Parliament case C-245/95 P) the Selection Board's assessment of the tests of individual candidates is treated as confidential and that the communication to those concerned of the marks obtained in the tests constitutes sufficient motivation. The same case-law of Community Courts has recognised that the proceedings of Selection Boards are covered by the statutory obligation of secrecy and forbids communication to candidates of the correction of their written tests or the criteria on which these corrections were based.
Furthermore, as regards Y's request for re-examination of test d), the Parliament stated that Y indeed received an answer dated 24 March 1998 confirming the absence of any errors in the determination of the marks. The Parliament finally pointed out that the Selection Board had completed its work and that the competition was effectively concluded on 13 February 1998.
X's observations
In observations X maintained the complaint and stated that the question of whether there had been a fair and transparent evaluation of Y's marks had not been answered by the Parliament, since in its letter of 24 March 1998 DG 5 did not actually inform the candidate whether in fact a re-examination of the results took place and failed to indicate the way and the criteria according to which the examination was done.
X added that as long as the rules of the evaluation of the candidates are not accessible to the candidates, there will always arise disputes about the transparency of the competitions and that the Parliament cannot be hiding behind the case-law of the Court of Justice excluding the existence of contrary jurisprudence or the application of the principle of good administrative behaviour.

THE DECISION

1 The alleged refusal of the Selection Board to provide more detailed information on the marks obtained and the evaluation criteria
1.1 X alleged that the Parliament refused to provide more detailed information on the marks given by the different members of the Selection Board and the evaluation criteria. As regards this allegation, the Parliament stated that according to the case-law of the Court of Justice, the proceedings of Selection Boards are covered by the statutory obligation of secrecy which forbids communication of the correction of their written tests and the criteria on which these corrections were based.
1.2 In the present state of Community law there is no legal basis for considering that the Parliament is under an obligation to disclose detailed information on the marks each member of the Selection Board gave to a candidate. However, Selection Boards, in accordance with the case-law of the Court of Justice and the principles of good administrative behaviour, should provide applicants with the reasons and elements necessary for understanding the decisions they take. Therefore the Ombudsman considered it insufficient that, despite Y's multiple requests, the Parliament did not provide more detailed information on the criteria of evaluation used by the Selection Board.
1.3 The Ombudsman draws the Parliament's attention to the fact that, by communicating more detailed information on the criteria of evaluation to the candidates, the Parliament would considerably increase the transparency in the recruitment and could also alleviate the work of Selection Boards in dealing with requests and complaints from applicants. With this regard, the Ombudsman refers to the own initiative inquiry he opened in November 1997 concerning more transparency in the recruitment procedures followed by the Commission (ref. 1004/97/PD, see enclosure). This own initiative inquiry concerns, amongst other things, the impossibility for the applicants to ask a re-examination of the marks obtained and to get a copy of the corrected test as well as the non-communication of the evaluation criteria followed by the Selection Boards.
2 The alleged failure of the Selection Board to review test d) and the insufficiency of the reasoning given
2.1 As regards the allegation that the Selection Board did not review the marks obtained on test d) and failed to state reasons, the Parliament pointed out that by letter dated 24 March 1998 Y was informed that no error had taken place during the determination of Y's marks.
2.2 Selection Boards, in accordance with the case-law of the Court of Justice and the principles of good administrative behaviour, should provide applicants with the reasons necessary for understanding their decisions. Therefore the Ombudsman considered it insufficient that, further to Y's request for reviewing the marks obtained on test d), the Parliament merely stated that "no error had occurred in the determination of your marks". This explanation did not contain sufficient details to enable Y to understand the Selection Board's decision on the request for reviewing the marks.
3 The request to the Ombudsman to annul the decision by which Y was excluded from participating to the next stages of the competition
The Ombudsman has no power to annul decisions of Selection Boards. As regards this point, the Ombudsman draws the attention of X to the fact that on 13 February 1998 the competition was effectively concluded.
4 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remarks:

Selection Boards, in accordance with the case-law of the Court of Justice and the principles of good administrative behaviour, should provide applicants with the reasons necessary for understanding the decisions they take. Therefore the Ombudsman considered it insufficient that, despite Y's multiple requests, the Parliament did not provide more detailed information on the criteria of evaluation used by the Selection Board. Furthermore, it was insufficient that the Parliament merely stated that "not any error had occurred in the determination of your marks". This explanation did not enable Y to understand the Selection Board's decision on the request for reviewing the marks.

Given that this aspect of the case concerns procedures relating to specific events in the past, it is not appropriate to pursue a friendly settlement of the matter. The Ombudsman has therefore decided to close the case.
The President of the European Parliament will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN