The background to the complaint

1. In 2013, the complainant participated in Open Competition EPSO/AD/263/13 for translators having Italian as their main language[1]. The complainant did the translation tests which consisted of a translation of a text from English into Italian (test A) and a translation of a text from French into Italian (test B).

2. In March 2014, EPSO informed the complainant that the mark he obtained in test A was 3 out of 80 points, he thereby failed to obtain the pass mark and therefore his test B) was not even marked. Consequently, the complainant was not admitted to the next stage of the competition, the assessment centre stage.

3. On 31 March 2014, in order to enable him to understand why he was found to have performed poorly, the complainant asked EPSO to provide him with the evaluation grid and with the evaluation criteria and method used by the Selection Board.

4. In its reply of 2 April 2014, EPSO stated that the evaluation grid could not be disclosed "as this is an instrument which must remain within the secrecy of tasks of the selection board". EPSO therefore provided him with an unmarked copy of his translation scripts only.

5. On the same day, the complainant replied that he found it useless to receive an unmarked copy of his scripts. He referred to the draft recommendation of the European Ombudsman in case OI/5/2005/PB, in which the Ombudsman stated that "EPSO should disclose to candidates, at their request, the evaluation criteria, if any, adopted by the selection boards for written or oral tests, and should furthermore disclose to candidates, at their request, the detailed breakdown of marks, if any, awarded to them for their performance." Still on the same day, EPSO stated that the complainant's request would be submitted to the selection board.

6. On 15 May 2014, EPSO replied and provided the complainant again with a copy of his translation scripts. However, it refused to disclose the source text of the translation exercise on the ground that it could be used for other competitions. It also refused to provide the complainant with the marked copies of his translation scripts on the basis of the confidential nature of the work of the selection board.

7. On 24 June 2014, the complainant complained to the European Ombudsman about EPSO's refusal to provide him with the marked copies of his translation scripts and the evaluation grid used by the selection board.

The inquiry

8. The Ombudsman opened an inquiry into the complaint and identified the following allegation:

Allegation:

By refusing to grant access to the marked copies and to the evaluation grid, EPSO failed to conduct Open Competition EPSO/AD/263/13 in a transparent manner.

9. In the course of the inquiry, the Ombudsman asked EPSO for an opinion on the complaint, as well as to address the possible relevance of the judgment of the Civil Service Tribunal in Case F-127/11[2] for EPSO's handling of recruitment proceeding. Further to the receipt of EPSO's opinion, the Ombudsman invited the complainant to submit observations which he did in November 2014. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Alleged failure of EPSO to conduct Open Competition EPSO/AD/263/13 in a transparent manner

Arguments presented to the Ombudsman

10. In his complaint, the complainant alleged that EPSO failed to conduct the open competition in a transparent manner because it refused to disclose his marked translation scripts and the evaluation grid used by the selection board.

11. In its opinion, EPSO explained the relevance of the judgment of the Civil Service Tribunal in Case F-127/11. It pointed out that the Tribunal established that the requirement that a decision adversely affecting a person should state the reasons on which it is based is intended to provide the affected party with the information necessary to determine whether the decision is justified or not, and to enable a judicial review[3]. As regards the decisions taken by a selection board in a competition, the obligation to state reasons must, however, be reconciled with the confidentiality of selection board proceedings, as required by Article 6 of Annex III to the Staff Regulations[4]. This confidentiality was imposed by the legislator to guarantee the independence of selection boards and the objectivity of their work, by protecting them from all external interference and pressures, whether from the EU administration, the candidates, or third parties. Consequently, the confidential nature of selection board proceedings precludes divulging the attitudes adopted by individual selection board members and revealing any factors relating to the individual or comparative assessment of candidates[5]. Therefore, the communication of the marks obtained in the various tests in open competitions constitutes an adequate justification of the selection board's decisions[6]. Such a statement of reasons is not prejudicial to the candidates' rights as it allows them to know the value set on their performance, and to ascertain if they have obtained the number of marks required by the notice of competition in order to succeed. In addition, it also enables the EU Courts to properly carry out a judicial review[7].

12. EPSO also said that there is no obligation to disclose to the candidates the corrected test papers, the correction methods, the evaluation sheets, the marking criteria, or the reasons why certain elements of the candidates' performance were deemed insufficient. On the contrary, all these elements form an integral part of the comparative assessment performed by the selection board with regard to the candidates' merits, and they are therefore covered by the secrecy of the board's proceedings under Article 6 of Annex III of the Staff Regulations[8].

13. In view of the above case law of the EU courts, EPSO stated that it cannot provide the complainant with the evaluation grid and the corrected copy of his translation scripts.

14. Nevertheless, EPSO said that one of the key aims of its Development Programme was the introduction of competency and skills-based tests which can be used to predict the job performance of candidates, and to provide high quality feedback to the Institutions on their suitability based on these test results. An important corollary of this has been the ability to give feedback in the competency passports to candidates, thereby enhancing considerably the transparency of the selection process while also respecting the need to ensure the secrecy of the selection boards' deliberations. Indeed, the competency passport enables candidates to understand why they have failed in a particular test. For those candidates who are not invited to the assessment centre stage and thus do not receive a competency passport, EPSO now provides them with comments on their tests upon request.

15. In the present case, the complainant did not receive a competency passport because he did not reach the assessment centre phase. Nevertheless, EPSO informed him, in its reply of 28 August 2014, about his test results and detailed marks in the competition with regard to the translation tests and provided him with some additional comments on his translation tests. Thus, he received more than the basic information to which he would be entitled and which the applicable case law defines as necessary to fulfil the obligation to state reasons.

16. Finally, EPSO added that it is currently working on a new procedure which would allow candidates failing the translations tests in the intermediate phase of the competition - when they do not receive a competency passport - to obtain the selection board's reasoned decision, containing the board's comments on the quality of their translations. The process will require some necessary IT adaptations but EPSO is confident that the procedure would be fully implemented in the course of 2016.

17. In his observations, the complainant argued that the general grounds provided by EPSO lack any justification or factual evidence and could therefore refer to any candidate´s test. He therefore raised the suspicion that EPSO did not even correct his test. Also, EPSO merely informed him about his score without providing any further clarifications on the applied assessment criteria. Considering that the tests consisted of a translation exercise and not a mere multiple choice test, the selection board should have justified its view on the linguistic choices of candidates.

18. The complainant said that the confidentiality of selection board proceedings must be reconciled with the right of candidates to a transparent selection procedure in line with EPSO´s mission. The confidentiality invoked by EPSO could undermine the credibility of EPSO, which is already hampered by the high number of complaints against it. Finally, granting access to the marked scripts in translation competitions would not entail additional work for the selection board as its corrections must in any case be recorded.

19. The complainant therefore reiterated his request that EPSO should provide him with his marked scripts and the evaluation grid.

The Ombudsman's assessment

20. The Ombudsman notes that, in its judgment in the De Mendoza Asensi Case, the Civil Service Tribunal clearly stated that selection boards do not need to give candidates (i) the corrected version of their tests, (ii) reasons why their replies were erroneous, or (iii) the evaluation grids used for the written and oral tests, since these documents form part of the selection board's comparative assessments and are covered by the secrecy of the selection board proceedings[9].

21. The Ombudsman therefore finds no maladministration by EPSO.

22. However, the aim of the present inquiry was to allow EPSO the possibility to comment on the relevance of the above judgment for its handling of recruitment proceedings. The Ombudsman finds that EPSO has given a positive response in this regard. In fact, EPSO explained how its own Development Programme already enhanced the transparency of its selection procedures by the introduction of competency and skills-based tests, and by the competency passport, which summarises the results of those skills being tested. It also stated that candidates who do not receive a competency passport because they are eliminated from the competition at an earlier stage can now request EPSO to provide them with comments. EPSO pointed out that such comments were provided to the complainant in the present case. Moreover, EPSO is currently developing a new procedure that will allow candidates, who do not receive a competency passport, to obtain the selection board's reasoned decision, containing the board's comments on the quality of their translations. EPSO stated that this new procedure could be in place by 2016.

23. In light of the above, the Ombudsman considers that EPSO has adopted a positive and proactive approach that aims to further enhance the transparency of its selection procedures. The Ombudsman welcomes this positive and proactive approach.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman finds no maladministration by EPSO.

The complainant and EPSO will be informed of this decision.

 

Emily O'Reilly

Strasbourg, 05/05/2015

 

[1] Published in OJ 2013 C 199 A, p. 1.

[2] Case F-127/11 Gonzalo De Mendoza Asensi v Commission, not yet published, paragraph 99.

[3] Case 69/83, Lux/Court of Auditors, [1983] ECR-I-1785, paragraph 36; and Case F-127/11 Gonzalo De Mendoza Asensi v Commission, cited above, paragraph 92.

[4] Article 6 of Annex III to the Staff Regulations provides that the proceedings of the selection board shall be secret.

[5] Case 89/79 Bonu v Council [1980] ECR I-553, paragraph 5; Case C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paragraph 24; Case F-127/11, De Mendoza/Commission, cited above, paragraphs 92-93.

[6] Case C-254/95 P Parliament v Innamorati, cited above, paragraphs 30-31; and F-127/11, De Mendoza/Commission, paragraph 94.

[7] Parliament v Innamorati, as above, paragraph 32; and Case F-127/11 Gonzalo De Mendoza Asensi v Commission, cited above, paragraph 95.

[8] Case C-254/95 P Parliament v Innamorati, cited above, paragraph 29; and Case F-127/11 Gonzalo De Mendoza Asensi v Commission, cited above, paragraph 99.

[9] Case F-127/11 Gonzalo De Mendoza Asensi v Commission, cited above, paragraph 99.