The background to the complaint

1. This case concerns the amount of information the European Personnel Selection Office (EPSO) provides to candidates in open competitions as regards the assessment of their written tests. The complainant, a Bulgarian citizen, took part in EPSO Open Competition EPSO/AD/166/09, which aimed to establish a reserve list from which to recruit translators with Bulgarian as their main language.

2. The complainant successfully passed the admission tests and was invited to sit the written tests. In accordance with section V of the competition notice[1], the written tests consisted of three parts referred to as tests (a), (b), and (c). Tests (b) and (c) comprised the following tasks:

Test (b):

"Translation into the competition language, using a non-electronic dictionary, of a general text approximately 45 lines long relating to the activities of the European Union, in your first compulsory source language (language 1) 0-40 (pass mark: 20)"

Test (c):

"Translation into the competition language, using a non-electronic dictionary, of a general text approximately 45 lines long relating to the activities of the European Union, in your second compulsory source language (language 2) 0-40 (pass mark: 20)"

3. On 28 July 2010, EPSO informed the complainant that, even though her score was above the pass mark in all the written tests, she was not admitted to the oral test because she was not among the candidates with the highest overall mark. EPSO clarified that, in accordance with the competition notice, only candidates who obtained the best combined results in written tests (a), (b) and (c), as well as the pass mark in each of these tests would be invited to attend the oral test.

4. On 6 August 2010, the complainant requested EPSO to send her a copy of her written tests (b) and (c). By reviewing her test papers she hoped to understand why the marking of her test did not ultimately allow her to be admitted to the next stage of the competition.

5. On 12 August 2010, EPSO provided the complainant with copies of her unmarked written tests (b) and (c), together with the relevant evaluation sheets.

6. According to the evaluation sheets in both test (b) and (c), in order to evaluate the candidates' performance, the Selection Board based itself on the following criteria:

"Understanding of source language and source text (1) and command of target language (2)

(1) understanding of the text / coherence and structure of the text / capacity of logical reasoning when translating difficult passages

(2) clarity, accuracy, style, presentation"

7. The evaluation sheets for written tests (b) and (c) indicated the number of points awarded to the complainant. In addition, there were four (4) boxes to be ticked concerning the "Formal appreciation" of each test. In both tests (b) and (c), the Selection Board ticked the following box:

"Satisfactory paper. Generally meets the requirements of the nature and level of the duties involved in the competition".

8. On 13 August 2010, the complainant wrote back to EPSO, specifying that she hoped to be able to receive a copy of her tests containing the relevant corrections, given that the documents provided did not contain any corrections or information on the methods used for the evaluation of tests (b) and (c).

9. In its reply of 23 August 2010, EPSO stated that, due to the confidential nature of the work of the Selection Board[2], it was unable to disclose more precise information concerning her written tests and could not grant her access to the corrected copies and the assessment grids of the examination papers.

10. The complainant was not satisfied with the above reply and, on 25 August 2010, turned to the Ombudsman. She noted that she had spent 15 months preparing for this competition and felt she had the right to know why she had been rejected.

The subject matter of the inquiry

11. The Ombudsman opened an inquiry into the following allegation and claim.

Allegation:

EPSO failed to provide the complainant with sufficient information concerning the marking of her written tests (b) and (c).

Claim:

EPSO should provide the information requested by the complainant.

12. In his opening letter to EPSO, the Ombudsman recalled that, in his own-initiative inquiry in case OI/5/2005/PB, he had advised EPSO to provide candidates with the evaluation criteria and the distribution of the partial results. EPSO had accepted these recommendations and announced that new evaluation sheets would be used as of 2010. The Ombudsman, therefore, asked EPSO to explain how it believed it had fulfilled this commitment with regard to the present case.

The inquiry

13. On 10 September 2010, the Ombudsman opened an inquiry and asked EPSO to submit an opinion.

14. On 10 December 2010, EPSO sent its opinion in French. On 21 December 2010, it provided a translation into English.

15. The Ombudsman subsequently forwarded EPSO's opinion to the complainant and invited her to submit observations by 28 February 2011. The complainant did not submit any observations either by that date or at a later time.

The Ombudsman's analysis and conclusions

A. EPSO's alleged failure to provide sufficient information regarding the marking of the complainant's written tests and related claim

Arguments presented to the Ombudsman

16. The complainant alleged that the information provided by EPSO concerning the marking of her written tests (b) and (c) was insufficient and did not allow her to understand the reasoning behind the low marks awarded to her for these tests. She, therefore, claimed that EPSO should provide her with copies of her corrected tests (b) and (c), and a method of evaluation or a clear explanation for the points awarded to her[3].

17. In its opinion, EPSO outlined as follows the procedure for marking the tests in this competition:

18. The Selection Board asked the markers/assessors who assisted the Board in an advisory capacity to evaluate each candidate's performance. Each test paper was marked anonymously by at least two assessors.

19. Before the actual test procedures were carried out, the Selection Board established guidelines for the assessors. These guidelines aimed at enabling the latter to assess the candidates' understanding of the text in question, the coherence and structure of their test papers and their capacity for logical reasoning. The Selection Board drew up a list of possible errors relating to the understanding of the source language and the source text (for example, mistranslations, omissions or additions) and of the target language (for example, errors relating to grammar, syntax, punctuation, style, clarity, vocabulary and spelling).

20. After checking that the assessors had properly applied these criteria and after examining their comments on the candidates' performance, the Selection Board collectively decided on the results for each test paper and entered these on an evaluation sheet. Penalty points, which varied depending on the type of error and how serious it was, were deducted on this basis. No corrections or notes made by the Selection Board appeared on the test paper.

21. In view of the nature of the translation and the interdependence of the relevant skills and abilities, the Selection Board did not consider it appropriate to award marks for each criterion in addition to the overall mark given to each test paper. EPSO pointed out in this regard that there was no provision in the competition notice requiring such partial marks to be awarded and the Selection Board was perfectly entitled, after discussion, to award an overall mark for each test.

22. EPSO recalled that the quality judgment of the Selection Board included the evaluation criteria, pre-established by the Selection Board, which took into account the purpose of the competition: "(1) understanding of the text / coherence and structure of the text / capacity of logical reasoning when translating difficult passages; (2) clarity, accuracy, style, presentation". These criteria were set out in the evaluation sheet. The evaluation sheet also contained the aggregate mark awarded and the Selection Board's judgment based on the above criteria.

23. EPSO stated that the Selection Board's decision to award an aggregate mark for the knowledge and skills in written tests (b) and (c) fell within its wide margin of discretion concerning these types of tests and how these tests are to be marked.

24. EPSO explained that, by setting the guidelines and the criteria applicable to all candidates, the Selection Board was able to make a fair and uniform comparison of all the candidates' performances. These guidelines, like the instructions given by the Selection Board to assessors, form an integral part of the Board's work. Such work, as provided in the Staff Regulations, is covered by the confidential nature of the Board's deliberations.

25. The Selection Board considered the complainant's written tests (b) and (c) to be satisfactory, since they met the demand of the posts for which this competition was organised. However, although the complainant's marks were above the pass mark, she was not among the candidates who obtained the highest marks for all the written tests, with a view to being admitted to the oral test. EPSO noted that the purpose of the competition was, by its nature, to compare different candidates' performances in a situation where with several candidates were competing for a limited number of posts.

26. EPSO added that, in accordance with the case-law of the Union courts, the notification of the marks obtained by each candidate in the tests constituted sufficient justification of the decision of the Selection Board. It informed the candidates of the evaluation of their performance and indicated to them that they did not obtain the number of points set as a threshold for admission to the next stage of the competition.

27. In the present case, EPSO not only informed the complainant of her marks, but, following her request for further information, also sent her additional documentation, including copies of her written tests and the relevant evaluation sheets for test (b) and (c).

28. EPSO pointed out that, in the framework of the Ombudsman's own-initiative inquiry OI/5/2005/PB, it undertook to provide Selection Boards with a model evaluation sheet containing the evaluation criteria set out in the competition notice, the performance level and the partial marks in relation to each of the evaluation criteria, as well as the aggregate mark. EPSO confirmed its commitment to this end and highlighted the importance it gave to transparency in competitions.

29. In the present competition, the Selection Board indicated on the evaluation sheet for written tests (b) and (c) the criteria established for the purposes of these tests. It went on to add these criteria were applied in marking the tests, the candidates' performances and their overall marks. However, since, in view of the nature of the test, the Selection Board did not consider it appropriate to award marks for each of the pre-established criteria, EPSO reiterated that it was unable to provide these marks.

The Ombudsman's assessment

30. The Ombudsman recalls that both the issue of transparency in recruitment competitions and the Selection Board's duty to state reasons were raised in the context of a number of complaints addressed to him[4].

31. In his decision closing complaint 14/2010/ANA[5], the Ombudsman pointed out that any request for additional information in relation to a candidate's performance in an open competition organised by EPSO is subject to complex considerations. He recalled that, within the context of the duty to state reasons, EPSO needed to reconcile the secrecy of the proceedings of the Selection Board with the requirements of transparency[6].

32. On the one hand, the Court of Justice has given far-reaching effect to the concept of confidentiality of Selection Board proceedings by stating that the marking criteria form an integral part of the comparative assessments of the candidates' respective merits and are therefore covered by the secrecy of the proceedings in the same way as the Selection Board's assessments. On the other hand, the Ombudsman has consistently highlighted the importance of the fundamental principle of transparency enshrined in Article 1 of the Treaty on European Union[7] and Article 15(1) of the Treaty on the Functioning of the European Union[8]. It is widely recognised today that transparency in the decision-making process strengthens the democratic nature of the institutions and enhances public confidence in European administration[9].

33. The Ombudsman further recalls that, following his own-initiative inquiry OI/5/2005/PB on transparency in EU recruitment procedures, EPSO undertook to propose to Selection Boards that, in the case of written tests, they use a model evaluation sheet, obtainable by candidates upon request, which contains (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 (b), in addition to the global mark, the partial marks awarded by the Board for each criterion specified in the notice of competition[10].

34. In the present case, the complainant alleged that EPSO failed to provide her with sufficient information concerning the marking of her written tests. In its opinion, EPSO explained that the information requested by the complainant does not exist, since no partial marks were awarded for each criterion. The Ombudsman understands that the complainant also objects to the fact that no separate marks were given by the Selection Board in this competition. He will, therefore, assess whether, in the case at hand, EPSO complied with the commitment it made in the context of the own-initiative inquiry OI/5/2005/PB.

35. In the course of the inquiry, EPSO explained that the Selection Board decided not to award partial marks for each criterion. The reasons which EPSO invoked in this regard were that "in view of the nature of the translation and the interdependence of these skills and abilities, the Selection Board did not judge it appropriate to award marks for each criterion in addition to the overall mark given to each test paper". EPSO also referred to the wide margin of discretion which the Selection Board enjoys as regards how tests are marked and added that "there was no provision in the competition notice requiring such partial marks to be awarded" and that "the Selection Board was perfectly entitled, after discussion, to award an overall mark for each test".

36. The Ombudsman does not find the above arguments convincing.

37. First, the Ombudsman takes note of the fact that the Selection Board identified two different evaluation criteria ("Understanding of source language and source text" and "command of target language")[11], but then considered it unnecessary to evaluate them separately. EPSO did not put forward any convincing arguments as to why the nature of the translated text and the interdependence of the skills and abilities required would have prevented the Selection Board from awarding separate points in relation to the above-mentioned distinct criteria.

38. Second, it should further be noted that the competition notice required candidates to demonstrate a "perfect command of the competition language" (main language) and a "thorough knowledge" of the first and the second compulsory source language. As has been seen, the evaluation sheet defined the evaluation criteria in the following terms: "Understanding of source language and source text (1) and command of target language (2)". As regards (1), that is, the source languages, the evaluation sheet further specified the relevant criterion as "understanding of the text / coherence and structure of the text / capacity of logical reasoning when translating difficult passages". As regards (2), the target language, the relevant criterion was broken down into "clarity, accuracy, style, presentation". The description and specification of the evaluation criteria would thus also appear to confirm that the evaluation performed concerned two distinct and clearly separable aspects and required two assessments to be made.

39. It follows from the above considerations that merely indicating the global score was insufficient for candidates to understand the appraisal of their written tests and to enable them to identify the strong and the weak points in their performance.

40. The Ombudsman recalls that EPSO's undertaking was to propose to Selection Boards that, in the case of written tests, they use a model evaluation sheet, obtainable by candidates upon request, which, in addition to the global mark, contains the partial marks awarded by the Board for each criterion specified in the notice of competition. In the present case, EPSO did not submit that, in the competition in question, it did propose to the Selection Board to award partial marks for each of the identified criteria. The Ombudsman, therefore, concludes that ESPO did not act in accordance with the commitment it gave in the framework of own-initiative inquiry OI/5/2005/PB.

41. In view of the above, the Ombudsman thus concludes that EPSO failed to provide the complainant with sufficient information regarding her performance. This constitutes an instance of maladministration.

42. If the Ombudsman finds an instance of maladministration, he normally makes a friendly solution or a draft recommendation to the institution concerned. However, given that, in the present case, the information requested by the complainant (i.e., the detailed breakdown of the marks) does not exist, trying to achieve a friendly solution or making a draft recommendation would not serve any useful purpose. The Ombudsman will therefore make a critical remark.

B. Conclusion

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

EPSO failed to take steps to ensure that the Selection Board provided a breakdown of the marks on the evaluation sheets for the written tests in question and, as a consequence, failed to provide the complainant with sufficient information regarding her performance. This constitutes an instance of maladministration.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 25 June 2012

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[1] Notice of Open Competitions EPSO/AD/166/09 and EPSO/AD/167/09, OJ 2009 C 93 A; a corrigendum was published in OJ 2009 C 116 A.

[2] Article 6 of Annex III to the Staff Regulations of officials of the European Communities.

[3] See the complainant's e-mail to EPSO dated 13 August 2010.

[4] See for example recent decisions of the European Ombudsman on complaints 1251/2009/(CK)ANA; 14/2010/ANA and 18/2010/IP.

[5] Decision of the European Ombudsman on complaint 14/2010/ANA, paragraphs 32 -36.

[6] Case T-72/01 Pyres v Commission [2003] ECR II-861, paragraphs 70-71.

[7] "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen."

[8] "In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible."

[9] Decision of the European Ombudsman on own-initiative inquiry OI/4/2007/(ID)MHZ concerning EPSO, paragraph 32.

[10] Decision of the European Ombudsman closing his own-initiative inquiry OI/5/2005/PB concerning the European Personnel Selection Office, paragraph 23.

[11] See paragraph 6 above.