Dear Mrs M.,

On 15 November 2001, you made a complaint to the European Ombudsman against the European Parliament concerning your participation in open competition EUR/B/142/98.

On 5 December 2001, I forwarded the complaint to the President of the European Parliament. The Parliament sent its opinion on 12 April 2002. I forwarded it to you with an invitation to make observations, which you sent on 31 May 2002.

On 26 November 2002 I wrote to the President of the European Parliament with a request to be provided with certain documents concerning your participation in the competition EUR/B/142/98. The Parliament sent the documents on 23 January 2003.

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

THE COMPLAINT

On 28 October 1998, the European Parliament, the Commission, the Economic and Social Committee and the Committee of the Regions published the notice of open competition EUR/B/142/98 for the recruitment of grade B5/B4 administrative assistants in the sector of staff and property management (OJ C 330 A, p. 22). The complainant, a Commission C grade official, was admitted to that competition and sat the written tests and passed. The complainant sat the oral tests in February 2001 and passed. By letter of 12 June 2001, the Competitions Department of the European Parliament however informed the complainant that the Selection Board, following verification of the results, had decided not to include her in the reserve list. The decision was based on the fact that, although the complainant had successfully passed and scored at least 60% overall in the written and oral tests, she was not among the 95 best candidates.

By letter of 21 June 2001, the complainant requested that the Chairman of the Selection Board should inform her of the mark in each test. By letter of 17 July 2001, the Head of the Competitions Department informed the complainant of these marks. By letter of 20 July 2001, the complainant requested that the Chairman of the Selection Board should review test 1.e), comprehension of a text written in the second language chosen by the candidate (Dutch), and to inform her of the mark of the 95th candidate on the short list. The complainant points out that she went to school in Dutch and practised Dutch all along her professional career. By letter of 31 July 2001, the Personnel Department of the European Parliament informed the complainant that her request for a review was rejected on the basis that only candidates who did not pass could have their tests reviewed. She was also informed that the 95th candidate on the short list scored 158,11 out of 220.

The complainant, who scored 152,93 out of 220, then complained to the Ombudsman on 30 August 2001 and asked him to help her to obtain a review of her test 1.e), in which she scored 12 out of 20, considering that the difference between herself and the last successful candidate on the short list was only 5,18 points. This complaint (1287/2001/SM) was rejected on the basis of Article 195 of the EC Treaty, as the complainant did not provide enough supporting evidence. The complainant then lodged a new complaint on 15 November 2001 further to which the Ombudsman decided to opened an inquiry.

In the present complaint, the complainant alleged 1) that the Parliament's statement in its letter of 31 July 2001 to the complainant that it may consider to review the written tests where a candidate has not obtained the minimum score, but that it will not do so if a candidate has obtained marks above the minimum, fails to respect the principle of equal treatment, 2) that the Selection Board must have made correction errors when evaluating test 1.e), because her knowledge of Dutch - which is the second language chosen for the competition in question - is excellent whereby she should have obtained a higher mark than 12/20 in test 1.e). The complainant therefore claimed that the Parliament should review her test.

THE INQUIRY

The European Parliament's opinion

As regards the first allegation, the Parliament stated that all written tests are corrected by two independent correctors. In the case of disparity between the correctors, the Selection Board submits the tests to a third or fourth corrector. The candidates who fail and can claim that there is an act adversely affecting their interests are immediately informed of their failure as well as of the marks obtained.

The review by the Appointing Authority of requests for re-examination by unsuccessful candidates is limited to controlling the appraisals of the Selection Board and to verifying whether there has been manifest infringement of the rules applicable to the works of the Selection Boards. A detailed re-examination with a new appraisal does not take place, as this would be against the principle of equal treatment of candidates.

For reasons of confidentiality of the proceedings and in order to guarantee the anonymity in the correction of the tests, the candidates can have access to the marks of each test only when they have failed these tests. Candidates who passed all the written tests but are not included in the reserve list can obtain, upon request, access to their marks on each test only when the reserve list is adopted. This information was communicated to the complainant by letter of 17 July 2001.

The Parliament argues that its approach is in accordance with the established case-law according to which the communication of elements concerning the appraisal - of personnel or comparative character - of the candidates which goes beyond the communication of the marks obtained on the various tests would infringe the principle of independence of the Selection Boards and of the objectivity of their proceedings(1).

Before adopting the reserve list, the Appointing Authority ex officio verifies whether the Selection Board has respected the rules on its proceedings, taking into account the reasoned report of the Selection Board. The Appointing Authority therefore exercises a control within the same limits as the one made further to a request from an unsuccessful candidate. There is no violation of the principle of equal treatment.

As regards the second allegation, the Appointing Authority has, in accordance with the rules described above, verified that the Selection Board correctly applied the rules on its proceedings and that there was a concordance between the marks given and the final report submitted by the Selection Board. Following this verification, the Appointing Authority did not detect a significant gap between the marks awarded by the correctors and the decision in the final report of the Selection Board.

As regards eventual errors by the Selection Board, it is not possible for the Appointing Authority to verify the appraisal as such of the Selection Board. The Appointing Authority has to limit itself to controlling that the Selection Board has respected the applicable rules and criteria fixed.

The Appointing Authority could verify that two correctors independently corrected test 1.e), that there was a concordance between their appraisals and that the Selection Board has confirmed these appraisals when it took its decision on the complainant's mark. It is therefore not possible, without putting into question the principle of independence of the Selection Boards, to further control the appraisal of the Selection Board. Doing this for one candidate would moreover violate the principle of equality of treatment of the candidates.

The complainant's observations

The complainant maintained her complaint and made the following observations.

Regarding the second allegation, the complainant argues that when studying her rough draft from the exam in test 1e), a better score than 12/20 should according to her have been awarded. The complainant also points out that at the oral exam in the competition she scored 19/20 and she notes to her surprise that there is a significant gap between the oral and the written tests in her second language.

As regards her claim for reviewing her test, the complainant points out that the multiple choice part of test 1 e) is supposedly not corrected manually and that she should be entitled to a reappraisal of her test. The complainant also states that she disagrees with the Parliament that such a review would breach the principle of independence of the proceedings of the Selection Board and that the latter would breach the principle of equal treatment.

The complainant finally pointed out that she had participated in the Commission competition COM/B/2/01, and that she was included in the list of 300 successful candidates of the first selection. This corroborates her idea that something went wrong in the second language test of competition EUR/B/142/98.

Further inquiries

After evaluating the Parliament's opinion and the complainant's observations, the Ombudsman considered that further inquiries were necessary. On 26 November 2002, he therefore wrote to the Parliament requesting to be provided with the following documents:

(1) the text and the questions of test 1. e) of competition EUR/B/142/98.

(2) the corrected examination paper of the complainant in so far as the above test is concerned.

(3) the correction criteria and the grid of correct answers for the above-mentioned test.

(4) the evaluation sheet of the Selection Board for the complainant's examination paper.

The Parliament replied on 23 January 2003 and made the requested documents available to the Ombudsman.

It observed that the rules concerning candidates' access to their scripts after marking, adopted on 4 October 2001, apply only to competitions whose Selection Boards were set up after 1 January 2001. Only once these rules had been adopted did the Selection Boards set up after 1 January 2001 receive instructions concerning the requirement to draw up for each test and each candidate a marking sheet reflecting the assessment of the entire Selection Board of the test in question. It is these marking sheets, drawn up by the Selection Board and signed by its chairman, which are then sent to any candidates requesting access to their marked scripts.

As the European Parliament already informed the Ombudsman in its letter of 17 April 2001 concerning complaints 457/99/IP, 610/99/IP, 1000/99/IP and 25/2000/IP, the files of candidates in competitions held before the implementation of these rules contain only a summary of the Selection Board's opinion, i.e. an overall mark, together with the original test papers submitted by candidates.

THE DECISION

1 Alleged infringement of the principle of equal treatment

1.1 The complainant alleged that the Parliament's statement in its letter of 31 July 2001 to the complainant that it may consider to review the written tests where a candidate has not obtained the minimum score, but that it will not do so if a candidate has obtained marks above the minimum, fails to respect the principle of equal treatment.

1.2 The Parliament stated that, before adopting the reserve list, the Appointing Authority ex officio verifies whether the Selection Board has respected the rules on its proceedings, taking into account the reasoned report of the Selection Board. The Appointing Authority therefore exercises a control within the same limits as the one made further to a request from an unsuccessful candidate. There is no violation of the principle of equal treatment.

1.3 The Ombudsman notes that the principle of equality of treatment laid down in Article 5(3) of the Staff Regulations is a general rule forming part of the law applicable to the Community civil service. Discrimination contrary to that rule occurs where identical or comparable situations are treated in an unequal way and the discrimination is not objectively justified.

1.4 The Ombudsman notes that the European Parliament has explained that it carries out the same degree of checking of the marks of candidates who fail and of those who pass the written tests and that the only difference concerns the time when the checking takes place. In these circumstances, the Ombudsman considers that the European Parliament's letter to the complainant of 31 July 2001 was misleading. However, the Ombudsman's inquiry has not revealed that the European Parliament violated the principle of equality of treatment. The Ombudsman therefore finds no maladministration by the European Parliament as regards the allegation made by the complainant.

2 Alleged correction errors concerning the complainant's test 1.e)

2.1 The complainant alleged that the Selection Board must have made correction errors when evaluating test 1.e), because her knowledge of Dutch - which is the second language chosen for the competition in question - is excellent whereby she should have obtained a higher mark than 12/20 in test 1.e). The complainant therefore claimed that the Parliament should review her test.

2.2 The Parliament stated that, following verification, the Appointing Authority did not detect a significant gap between the marks awarded by the correctors and the decision in the final report of the Selection Board. It is not possible for the Appointing Authority to verify the appraisal as such of the Selection Board. The Appointing Authority has to limit itself in controlling that the Selection Board has respected the applicable rules and criteria fixed.

2.3 The Ombudsman notes that written test 1.e) was intended to assess the comprehension of a text written in the second language and the ability to write in that language. The test which in total was marked on 20 points, was subdivided in two parts, namely a first part consisting of 8 multiple choice questions (maximum 8 points) and a second part - question 9 - consisting in writing a short reply of maximum 100/150 words to a question concerning food safety (maximum 12 points). The complainant obtained 8/8 on the first part and 12/20 on the entire test 1.e).

2.4 The Ombudsman notes that, as regards the part of the test consisting in writing a reply, there appears to be no evaluation of the Selection Board available other than the overall mark itself of 12/20 on the entire test. This means that the complainant's mark should have been surprisingly low for the answer to question 9. What the reason for this is, appears difficult to establish as there is not any written assessment from the Selection Board concerning the appraisal of the complainant's answer. The Ombudsman finds the absence of such an appraisal in the present case unfortunate and regrettable because it undeniably affects the confidence in the evaluation method used by the Selection Board. Further it makes it impossible to fully address the complainant's claim.

2.5 Since under the Parliament's new rules the Selection Boards have now to draw up a marking sheet reflecting their assessment, it appears that similar problems should be avoided in the future. As the competition is closed and the Selection Board in question has terminated its works and has been dissolved, further inquiries into the complainant's claim do not appear to be useful.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Parliament. The Ombudsman therefore closes the case.

The President of the European Parliament will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

---

(1) C-245/95 P, Parliament v. Innamorati, ECR 1996, I- 3423, paragraphs 23 to 31; T-157/96, Affatato v. Commission, ECR SC 1998 II-97, paragraphs 33-35.