Strasbourg, 24 April 2008

Dear Mr X,

On 16 March 2007, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning your participation in an Open Competition.

On 6 June 2007, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 21 September 2007 which I forwarded to you with an invitation to make observations. You submitted your observations on 28 November 2007.

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

THE COMPLAINT

According to the complainant, the facts can be summarised as follows:

The complainant took part in an Open Competition, which was designed to constitute a reserve of assistants.

On 28 June 2006, the European Personnel Selection Office ("EPSO") informed him that he had obtained insufficient results in the oral test and that, as a consequence, his name was not included in the reserve list.

On 10 July 2006, the complainant wrote to EPSO, requesting the re-examination of his oral test. He argued that his mark did not correspond to his performance during the test and stated that he had replied to 80% of the questions in a friendly and relaxed way. He asked to be informed of the evaluation criteria used in the oral test as well as of the Selection Board's evaluations.

On 20 July 2006, EPSO replied to the complainant. It indicated that the Selection Board had re-examined his marks for the oral test and that there was no error. It added that, during the oral test, the complainant had not demonstrated a sufficient knowledge of secretarial tasks and had not convinced the Board that he could fulfil the tasks described in the Notice of Competition (Title A(I)). According to EPSO, given the secrecy of Board proceedings, access to the evaluation criteria and the other documents requested by the complainant could not be granted. EPSO drew the complainant's attention to the Ombudsman's decision on complaint 324/2003/MF.

In his complaint, the complainant stated that he replied correctly to the questions asked. As regards the comparative assessment of candidates, he added that, as he was among the first candidates to take part in the oral test, he doubted whether the Selection Board remembered his performance and considered that either the marks for his test were given immediately or he was excluded before the comparative assessment had taken place. He disagreed with EPSO's statement that his knowledge of secretarial tasks was insufficient. He considered that the Board excluded him on the basis of a subjective assessment of his performance and not on the basis of objective evaluation criteria. Given his replies, it was impossible to obtain an eliminatory mark. He added that the evaluation criteria of the test and the Board's evaluations were not given to him.

The complainant alleged that the Selection Board failed appropriately to assess his performance in the oral test and that its assessment of his performance was not based on objective evaluation criteria. The complainant also alleged that EPSO failed to give him access to the evaluation criteria of the oral test and to the Board's evaluations. He claimed that his performance should be re-assessed. He also claimed that his name should be included in the reserve list or that the Open Competition should be cancelled because of a lack of fair treatment of candidates and a lack of objectivity by the Board. Finally, he claimed that he should be given access to the evaluation criteria of the oral test and to the Board's evaluations.

On 6 June 2007, the Ombudsman opened an inquiry into the following allegation and claim:

The complainant alleged that EPSO failed to give him access to the evaluation criteria of the oral test and to the evaluations of the Selection Board. He claimed that he should be given access to these criteria and evaluations.

The Ombudsman took the view that there were insufficient grounds to open an inquiry into the allegation and the claim concerning the assessment of the complainant's performance, because the complainant failed to submit specific arguments as regards the propriety of the reasoning underpinning the Selection Board's decision. Moreover, the admissibility conditions were not met as regards the allegation that the assessment was not based on objective evaluation criteria and the claim that his name should be included in the reserve list or that the Open Competition be cancelled, because no appropriate prior administrative approaches concerning these issues were made by the complainant.

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows.

EPSO recalled that the oral test consisted of an interview with the Selection Board designed to assess the candidates' skills to carry out the duties described in the Notice of Competition (Title A(I)). EPSO explained that, in order to assess the candidates' skills during the oral test, the Board established, prior to conducting the said test, an evaluation sheet, setting out the criteria to be used during its assessment. These criteria complied with the provisions of the Notice of Competition. Those skills concern, inter alia, secretarial tasks associated with organising meetings, preparing missions, and so on; as well as a range of other standard secretarial tasks: (i) filing documents and correspondence, monitoring correspondence, diary management, and so on; (ii) word processing in the candidates' main language and possibly in another official EU language; (iii) formatting electronic documents; and (iv) various administrative tasks associated with file management using office software packages. During the interview, the Board also assessed the candidates' specialist knowledge in the field concerned, their knowledge of the EU and its institutions, and their ability to adjust to working as a European civil servant in a multicultural environment.

The Selection Board used these criteria uniformly and consistently to assess all candidates, thereby complying with the requirements of objectivity and equality. Following a discussion between the members of the Board, it determined by consensus the final mark for each candidate.

In accordance with Article 6 of Annex III of the Staff Regulations, the comparative assessment of candidates was covered by the secrecy that applies to Selection Board proceedings(1). Moreover, the secrecy of Board proceedings implied that the positions of individual members of the Board and the detailed content of the evaluation sheet, namely, personal or comparative assessments could not be communicated(2). Therefore, access to this sheet could not be granted.

EPSO recalled that, in his decision 481/2002/IP, the Ombudsman considered: "the Commission's view that the evaluation sheet setting out the general assessment and observations of the Selection Boards should be considered as covered by the duty to keep the proceedings of the Selection Board confidential, as laid down by Article 6 of Annex III of the Staff Regulations, to be well founded".

EPSO also recalled that, during an oral test, the Selection Board did not only assess whether the candidate had given a correct or a wrong answer, but also evaluated the candidates’ skills to carry out the duties described in the Notice of Competition. The Board based its assessment of candidates on the replies given, and on the reasoning capacity and logical approach which underpinned these replies, as well as on their capacity to adapt to the work environment and to working in a multicultural environment. As the aim of a competition was to select the best candidates for the duties to be carried out, it was inevitable that the Board examined the respective merits of the candidates and conducted the tests so that only the best candidates would be selected. Thus, as confirmed by the case-law of the Community Courts, the task of a Board was not an automatic exercise, but involved an evaluation which presupposed a margin of discretion.

In accordance with the obligation to provide reasons, EPSO informed the complainant of his marks. Besides, in its letter of 20 July 2006, EPSO informed him of the result of the re-examination of his application and provided explanations as to the reasons why the Selection Board had decided to grant him a mark below the pass-mark. It considered that the candidate had not demonstrated good specialist knowledge in secretarial tasks and had not convinced it of his ability to carry out the duties.

As stated by the case-law of the Community Courts, "given that communication of the marks obtained in the various tests of a competition constitutes an adequate statement of the reasons on which the board's decisions are based, a selection board has no obligation to specify which of the candidate's replies were insufficient or to explain why they were considered insufficient"(3).

In conclusion, as regards the evaluation criteria, EPSO pointed out that these criteria were set out in the Notice of Competition and that the Selection Board informed the candidate that he had not met some of these criteria during the oral test. As regards the Board's evaluations, the complainant was informed of the Board's decision and again, subsequently, when he was informed of his marks and when detailed explanations were provided to him. The secrecy of Board proceedings, which is provided for in statutory rules, forbids the communication of the positions of individual members of the Board and of any personal or comparative assessments of candidates.

The complainant's observations

The complainant's observations can be summarised as follows:

According to the complainant, he was excluded from the Open Competition for reasons other than his replies during the oral test. He considered that EPSO refused to give him access to the evaluations and only recalled the provisions of the Notice of Competition. The complainant noted that the Ombudsman may have access to Selection Board proceedings.

THE DECISION

1 Alleged failure to give access to the evaluation criteria of the oral test and to the evaluations of the Selection Board and related claim

1.1 The complainant took part in an Open Competition and obtained insufficient results in the oral test for his name to be included in the reserve list. He alleged that the European Personnel Selection Office ("EPSO") failed to give him access to the evaluation criteria of the oral test and to the Selection Board's evaluations. He claimed that he should be given access to these criteria and evaluations.

1.2 In its opinion, EPSO recalled that , in order to assess the candidates' skills during the oral test, the Selection Board established, prior to the oral test, an evaluation sheet, setting out the criteria which it would use during its assessment and which were compliant with the provisions of the Notice of Competition:

• secretarial tasks associated with organising meetings, preparing missions, and so on; a range of other standard secretarial tasks: filing documents and correspondence, monitoring correspondence, diary management, and so on; word processing in the candidate's main language and possibly in another official language of the EU, formatting electronic documents; various administrative tasks associated with file management using office software packages;
• the candidates' specialist knowledge in the field concerned;
• their knowledge of the EU and its institutions;
• their ability to adjust to working as a European civil servant in a multicultural environment.

The Selection Board used these criteria uniformly and consistently to assess all candidates, thereby complying with the requirements of objectivity and equality. Following a discussion between the members of the Board, it determined by consensus the final mark for each candidate.

In accordance with Article 6 of Annex III of the Staff Regulations, the comparative assessment of candidates was covered by the secrecy of Selection Board proceedings(4). Moreover, the secrecy of Board proceedings implied that the positions of individual members of the Board and the detailed content of the evaluation sheet, namely, personal or comparative assessments, could not be communicated(5). Therefore, access to this sheet could not be granted.

1.3 The Ombudsman notes that the complainant requested access to the evaluation criteria and the Selection Board's evaluations in a letter to EPSO dated 10 July 2006. In reply, EPSO referred to the duties described in Title A(I) of the Notice of Competition and to the secrecy of Board proceedings.

The Ombudsman further notes that, in its opinion, EPSO, when addressing the question of the evaluation criteria, referred again to Title A(I) of the Notice of Competition and gave a list of these criteria. As regards the Selection Board's evaluations, EPSO explained that, in accordance with the Staff Regulations and the case-law of the Community Courts, the positions of individual members of the Board and the detailed content of the evaluation sheet, namely, personal and comparative assessments, were covered by the secrecy of Board proceedings.

1.4 The issue of access to the selection criteria used by a Selection Board has been raised in other complaints addressed to the Ombudsman, namely, in Decisions on complaints 2097/2003/(ADB)PB, 2028/2003/(MF)PB and 413/2004/(MF)PB. The inquiries into the above-mentioned complaints were closed in September 2005.

In the above-mentioned cases, the Ombudsman made three separate draft recommendations that the Commission and EPSO should reconsider their refusals to give access to, respectively, the evaluation criteria, the selection criteria established by the Selection Board, and a copy of the detailed evaluation sheet.

In all three cases, the Commission and EPSO submitted joint opinions. In one of the cases (2097/2003/(ADB)PB), the above-mentioned institutions responded to the Ombudsman's draft recommendation by providing a copy of the written test paper containing the Selection Board's remarks and corrections. In their opinion, the Commission and EPSO emphasised, however, that the release of the corrected test paper was an exception which did not constitute precedent.

In the context of complaints 2097/2003/(ABD)PB and 2028/2003/(MF)PB, the Commission and EPSO did not agree to disclose the selection criteria laid down by the Selection Board and, as regards complaint 413/2004/(MF)PB, they did not agree to disclose a copy of the detailed evaluation sheet. However, the Commission and EPSO stated that, on a more general level, they were examining the possibility of providing candidates with a more detailed evaluation sheet, in order to allow them better to understand marking by the Board.

On 8 September 2005, in the context of his decision closing the inquiry into complaint 2097/2003/(ADB)PB, the Ombudsman concluded that EPSO's position raises important factual and legal issues of a more general nature. He reached the same conclusion in his subsequent decisions of 14 September and 22 September 2005 closing his inquiries into complaints 2028/2003/(MF)PB and 413/2004/(MF)PB respectively. In light of the above conclusion, he announced that he would open an own-initiative inquiry regarding access to evaluation criteria.

On 10 October 2005, the Ombudsman launched an own-initiative inquiry, OI/5/05/PB, into candidates' access to the evaluation criteria established by Selection Boards and applied to written examinations forming part of competitions organised by EPSO. On 3 July 2007, the Ombudsman made further inquiries, asking EPSO to comment on the question of access to marking criteria laid down for the purpose of oral tests. The own-initiative inquiry deals also with the secrecy of Board proceedings, provided for by Article 6 of Annex III of the Staff Regulations.

Based on the above, the Ombudsman therefore takes the view that, pending the outcome of the Ombudsman's own-initiative inquiry, there are no grounds for further inquiries into the present complaint against EPSO. Information on the outcome of the Ombudsman's own-initiative inquiry will be published on the Ombudsman's website (http://www.ombudsman.europa.eu) in due course.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, no further inquiry is necessary. 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 44/71 Marcato [1972] ECR 427.

(2) Case T-336/02 Christensen v Commission [2005] ECR-SC I -A-75 and II-341.

(3) Case T-153/95 Kaps v Court of Justice [1996] ECR-SC I-A-233 and II-663, at paragraph 81. Translation from the original French by the Ombudsman's services: "dès lors que la communication des résultats chiffrés obtenus par un candidat aux différentes épreuves d'un concours constitue une motivation suffisante du jugement de valeur porté par le jury, un jury de concours ne saurait être tenu, en vue de motiver sa décision de ne pas inscrire un candidat sur la liste d'aptitude à l'issue d'un concours, de préciser les réponses du candidat qui ont été jugées insuffisantes ou d'expliquer pourquoi celle-ci ont été jugées insuffisantes".

(4) Case 44/71 Marcato [1972] ECR 427.

(5) Case T-336/02 Christensen v Commission [2005] ECR-SC I -A-75 and II-341.