(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

THE COMPLAINT

The complainant applied for open competition COM/LA/3/02 organised by the European Commission with the purpose of constituting a reserve of French language translators and published in the Official Journal of 24 September 2002.

Point B.2 of the notice of competition stated that applicants had to obtain the required minimum of points for each test. The complainant was admitted to participate in the preselection tests and the written tests.

In a letter dated 16 January 2004, the complainant was informed by the European Personnel Selection Office ("EPSO") that he was not admitted to participate in the oral tests because he had failed to obtain the minimum points required for test c).

In an email dated 22 January 2004 to EPSO, the complainant asked for access to his marked examination paper and to be given the names of the members of the Selection Board. He was informed by the official concerned that he should contact the President of the Board. On 26 January 2004, the complainant wrote to the Board to ask it for a marked copy of his examination paper. On 27 January 2004, EPSO, on behalf of the Board, sent the complainant an unmarked copy of his examination paper and a copy of the evaluation sheet filled in by the Board. The evaluation sheet consisted of five boxes in vertical order, each of them containing what the heading for these boxes described as "commentaire général" (general comments). One of these boxes could be ticked, according to the Board's assessment. The higher the box ticked, the higher the mark. For the test that the complainant had failed, i.e., test c), the lowest box had been ticked. The text in that box was the following: "Traduction ne présentant pas les qualités de fidélité à l'original et/ou d'expression francaise requises pour les tâches à accomplir" (the translation does not sufficiently possess the qualities of faithfulness to the original and/or appropriateness in French usage for the tasks to be accomplished). The complainant had been given 15 points out of 40, the pass mark being 20. The complainant had also received the evaluation sheet for test b), which he had passed with 28 points out of 40. On the evaluation sheet for that test, the second highest box had been ticked.

The complainant made the following allegations:

1. The Selection Board had failed to give him access to his marked examination paper of competition COM/LA/3/02.
2. The Selection Board had failed to give him the names of its members.

The complainant claimed that he should be given access to his marked examination paper and to the list of the members of the Selection Board of competition COM/LA/3/02.

THE INQUIRY

The Commission's and EPSO's opinion

The complaint was made against the European Commission and EPSO. Given that the recruitment competition here concerned was initially organised by the Commission and later placed under EPSO's responsibility, the Ombudsman decided to ask the Commission as well as EPSO to submit an opinion on the complaint. The Commission and EPSO submitted a joint opinion which can be summarised as follows:

With regard to the allegation that the Selection Board had failed to give the complainant access to his marked examination paper, the practice adopted by the Commission in this respect implied that candidates are given access to an unmarked copy of their examination paper together with the final evaluation sheet filled in by the Selection Board. This practice had been adopted following a commitment made by the Commission's former President, Mr Romano Prodi, in a letter to the Ombudsman on 7 December 1999. In the present case, the practice had been correctly followed.

As regards the names of the members of the Selection Board, the list of these had been published on 4 March 2003 in the Official Journal in accordance with point D.2. of the notice of competition(2).

The complainants’ observations

In his observations, the complainant argued, in summary, that the practice of giving access to an unmarked copy of the examination paper together with the final evaluation sheet filled in by the Selection Board did not enable a candidate fully to understand the points that he or she had obtained. He stated that what he wanted was information that would enable him to improve his performance in future competitions.

The complainant did not comment on the Commission's and EPSO's response to his second allegation.

THE OMBUDSMAN'S EFFORTS TO ACHIEVE A FRIENDLY SOLUTION

After careful consideration of the opinion and the complainant's observations, the Ombudsman was not satisfied that the Commission and EPSO had responded adequately to the complainant's allegation.

The proposal for a friendly solution

Article 3(5) of the Statute of the Ombudsman(3) directs the Ombudsman to seek, as far as possible, a solution with the institution concerned to eliminate the instance of maladministration and satisfy the complaint.

The Ombudsman therefore put the following proposal for a friendly solution to the Commission and to EPSO:

EPSO and the Commission could consider giving the complainant more detailed information as to why the Selection Board found the quality of his translation for test c) to be insufficient to warrant a passing grade.

This proposal was related to the complainant's first allegation, which essentially concerned his wish to obtain information in order to enable him to improve his performance in future competitions. The information on the evaluation sheet here concerned was a standard text that could be ticked by the Selection Board ("Traduction ne présentant pas les qualités de fidélité à l'original et/ou d'expression francaise requises pour les tâches à accomplir" - i.e., for the tasks to be carried out, the translation does not sufficiently possess the qualities of faithfulness to the original and/or appropriateness in French usage for the tasks to be accomplished). The Ombudsman's provisional conclusion was, therefore, that EPSO and the Commission should give the complainant more detailed information on its marking of his translation for test c), and that the failure to provide the complainant with such detailed information could constitute an instance of maladministration.

The Commission's and EPSO's reply

In their reply on the Ombudsman's proposal for a friendly solution, EPSO and the Commission made various comments regarding the nature of the competition. Addressing the friendly solution proposal, they stated that the Selection Board had noted several errors in the translation "au niveau du sens (non-sens, contresens et faux-sens) ou de style, des omissions, des inexactitudes ou des imprécisions, ainsi que des fautes de grammaires et de temps" (errors relating to sense - nonsense, counter sense, false sense - or of style, omissions, inaccuracy, imprecision, as well as grammatical errors and errors of tense).

The complainant's observations

In his observations, the complainant stated that he was not at all satisfied with the more detailed information given by the Commission and EPSO in their opinion. He stated that he was perfectly well aware that he had failed the competition because he had made errors. He wanted, however, to be given information that would enable him to improve his performance in future competitions.

THE DECISION

1 The alleged failure to give access to the marked examination paper

1.1 The complainant participated in open competition COM/LA/3/02 organised by the European Commission with a view to establishing a reserve list of French language translators. He was admitted to the written test, in which he failed test c). He asked the European Personnel Selection Office ("EPSO"), which had in the meantime taken over the responsibility for the competition, for a copy of his marked examination paper. He received a copy of his unmarked examination paper as well as a copy of the Selection Board's evaluation sheet. The evaluation sheet consisted of five boxes in a vertical order, each of them containing what the heading for these boxes described as "commentaire général" (general comments). One of these boxes could be ticked according to the Board's assessment. The higher the box ticked, the higher the mark. For the test that the complainant had failed, i.e., test c), the lowest box had been ticked. The text in that box was the following: "Traduction ne présentant pas les qualités de fidélité à l'original et/ou d'expression francaise requises pour les tâches à accomplir" (for the tasks to be carried out, the translation does not sufficiently possess the qualities of faithfulness to the original and/or appropriateness in French usage for the tasks to be accomplished). The complainant had been given 15 points out of 40, the pass mark being 20. The complainant had also received the evaluation sheet for test b), which he had passed with 28 points out of 40. On the evaluation sheet for that test, the second highest box had been ticked. In his complaint to the Ombudsman against the Commission and EPSO, the complainant alleged that the Selection Board had failed to give him access to his marked examination paper.

1.2 In their joint opinion, EPSO and the Commission noted that the practice adopted initially by the Commission, and later on by EPSO also, implied that candidates were given access to an unmarked copy of their examination paper together with the final evaluation sheet filled in by the Selection Board. This practice had been adopted following a commitment made by the Commission's former President on 7 December 1999 to the European Ombudsman.

1.3 In his observations, the complainant argued, in summary, that the practice of giving access to an unmarked copy of the examination paper together with the final evaluation sheet filled in by the Selection Board did not enable a candidate fully to understand the points that he or she had obtained. He stated that what he wanted was information that would enable him to improve his performance in future competitions.

1.4 The commitment referred to by EPSO and the Commission was made following the Ombudsman's special report of 18 October 1999 to the European Parliament. The report followed the Ombudsman's own-initiative inquiry into the secrecy that formed part of the Commission's recruitment procedure(4). The special report included, among others, a formal recommendation that in future recruitment competitions the Commission should give candidates access to their own marked examination papers on request. This recommendation was based on the following considerations:

"...being able to inspect his own marked examination script does entail several benefits for the candidate. First, the candidate gains the opportunity to discover his mistakes and thus to improve his future performance. Second, the candidate’s confidence in the administration is strengthened. This is important, since there seems to be a widespread belief that tests are not always properly assessed by the Commission and indeed that sometimes they are not assessed at all. Third, if a candidate feels that he has been wrongly assessed, he will be able to argue much more precisely if he has seen his marked examination script." (p. 5 of the Ombudsman's Special Report.)

1.5 In his letter dated 7 December 1999, the Commission's former President, Mr Romano Prodi, accepted the Ombudsman's recommendation that candidates should have access to their marked examination papers. In his letter to the Ombudsman, he stated the following:

"The Commission welcomes the recommendations you made in this report and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination papers, upon request, from 1 July 2000 onwards."(5)

1.6 The Ombudsman considers that providing candidates with a copy of the Selection Board's final evaluation sheet can be an adequate indication of the Board's assessment regarding the errors and weaknesses it identified in a candidate's examination paper. The adequacy of the information provided in the evaluation sheet is to be appraised in view of the purpose of providing a candidate with a copy of his marked examination paper, set out in the Ombudsman's special report referred to above. Hence, the evaluation sheet must provide the candidate concerned with sufficiently clear and detailed information in light of those purposes. This requirement implies that, where the evaluation sheet concerns a translation test, it must provide information not only on the types, but also on the seriousness and the extent of the errors or weaknesses identified by the Board in the candidates' paper, without, however, imposing an unreasonable administrative burden on Selection Boards. Such information would be particularly useful to candidates who, like the complainant in the present case, will often wish to know in which respects they should seek to improve their performance in future competitions. Relatedly, the Ombudsman points out that in light of the above, and in view of the wide margin of discretion that the Selection Board enjoys when it evaluates the performance of candidates in tests, the Board is under no legal obligation, or any obligation deriving from principles of good administration, to provide candidates with a detailed opinion on the specific errors or weaknesses that it has identified.

1.7 On the basis of the foregoing considerations, the Ombudsman finds that the additional information given by the EPSO and the Commission in response to the Ombudsman's proposal for a friendly solution (errors relating to sense - nonsense, counter sense, false sense - or of style, omissions, inaccuracy, imprecision, as well as grammatical errors and errors of tense) cannot be viewed as providing the complainant with information that is sufficiently clear and detailed in light of the purposes that were expressed in the Ombudsman's special report of 1999 and accepted by the Commission that year, since no information was given to the complainant as to how many errors had been found for each of the individual types of errors identified by the Selection Board, and as to whether serious or only minor errors had been made. This was an instance of maladministration, and a draft recommendation is therefore made below.

2 Alleged failure to give the names of the members of the Selection Board

2.1 The complainant alleged that the Selection Board had failed to give him the names of its members.

2.2 In their joint opinion, EPSO and the Commission noted that the names had been published on 4 March 2003 in the Official Journal in accordance with point D.2. of the notice of competition. They gave the full reference and referred to the relevant internet site on which the list of the names could be accessed.

2.3 In h is observations, the complainant made no comments on this aspect of the complaint.

2.4 The Ombudsman notes that the complainant initially requested the names of the Selection Board's members, as well as his marked examination paper, in an email dated 22 January 2004 to EPSO. In its reply, EPSO informed the complainant that he should put his request to the President of the Board. In his letter of 26 January 2004 to the Board, the complainant did not, however, request the names of the Board's members, and the Board's reply did not include those names.

2.5 In their joint opinion, EPSO and the Commission have correctly pointed out that the names of the members of the Selection Board had been published in the Official Journal, and they have given the complainant the appropriate and relevant reference for the list of the names.

2.6 The Ombudsman notes that, when the complainant contacted the President of the Selection Board by letter dated 26 January 2004, he refrained from making his request for the names of the board's members. In their opinion in the present inquiry, EPSO and the Commission gave the relevant reference for the list of the names of the Board's members. The complainant has not commented on this aspect of the complaint in his observations. In these circumstances, the Ombudsman considers that there is no maladministration with regard to this aspect of the complaint.

3 Conclusion

In view of the above, the Ombudsman puts the following draft recommendation to EPSO and the Commission, in accordance with Article 3(6) of the Statute of the Ombudsman:

EPSO and the Commission should give the complainant information that would sufficiently indicate the seriousness and the extent of the separate types of error identified by the Selection Board.

EPSO, the Commission and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the Ombudsman, EPSO and the Commission shall send a detailed opinion by 28 February 2006. The detailed opinion could consist of the acceptance of the Ombudsman's decision and a description of the measures taken to implement the draft recommendation.

Strasbourg, 18 November 2005

 

P. Nikiforos DIAMANDOUROS

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(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(2) The opinion included the full reference and information on the relevant internet site on which the list of the names could be accessed.

(3) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman’s Duties, OJ 1994 L 113, p. 15.

(4) Special Report of the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedure: http://www.ombudsman.europa.eu/special/en/default.htm.

(5) Cf. press release no. 16/99 of the European Ombudsman of 15 December 1999.