Strasbourg, 30 November 2006

Dear Mr X.,

On 16 April 2004, you made a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning your participation in Open Competition COM/A/9/01. On 5 May 2004, you had a telephone conversation with my office about the procedural aspects of your complaint and the possibility of initiating court proceedings.

On 18 May 2004, I forwarded the complaint to the Director of EPSO. The Commission and EPSO sent their joint opinion on 8 September 2004. I forwarded it to you with an invitation to make observations, which you sent on 5 November 2004.

On 15 December 2005 I sent a letter of further inquiries to the Director of EPSO. EPSO sent its additional opinion on 24 January 2006. I forwarded it to you with an invitation to make observations, which you sent on 28 February 2006.

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

I apologise for the length of time it has taken to deal with your complaint.

THE COMPLAINT

According to the complainant, the relevant facts are, in summary, as follows:

The complainant participated in Open Competition COM/A/9/01 (Administrators A7/A6 in the fields of economics and statistics)(1), in the field of economics. The complainant was invited to the oral test after having passed the pre-selection tests and the written test. By letter of 11 June 2003, the complainant was informed by the European Personnel Selection Office ("EPSO") that his name had not been put on the reserve list, because he was not amongst the 200 candidates who had obtained the highest combined scores for tests e) (a case study) and f) (oral test). For tests e) and f), the complainant obtained a combined mark of 42/80 (21/40 for test e) and 21/40 for test f)), whereas the minimum score of the 200 best candidates was 44/80. The complainant, who was surprised that he received exactly the same mark of 21/40 for both tests, immediately realised that his marks for the oral test were very low, especially since he considered that he had achieved a near-perfect performance in his oral test. The complainant was well prepared, relaxed and could not have hoped for better questions than the ones that had been put to him.

On 12 June 2003, the complainant wrote a short letter to EPSO asking for a review of his results in tests e) and f) because he was convinced, given his serious preparation for the tests, his language skills and his experience in the field, that errors had been made in the correction of tests e) and f). The complainant also wanted to obtain a copy of the evaluation sheet, the evaluation criteria, the marks per section, as well as the calculation of the totals and subtotals. This letter was short, as the complainant had prepared another, longer letter with a huge file (with sub-envelopes containing annexes, including a four-page description of the oral test, as well as an audio CD) to prove that his answers were correct. He brought this file personally to EPSO.

The Selection Board replied in a letter of 8 July 2003, in which it confirmed its earlier decision, and in which it enclosed a copy of the complainant's written test and its evaluation sheet. The complainant did not receive any information concerning the oral test. According to the complainant, the evaluation sheet concerning the written test did not shed enough light on the evaluation and was written in such a manner that it could be interpreted in any way. The complainant stated that he found inconsistencies in the evaluation sheet with regard to criteria 2 and 3, and considered that the marks were too low. According to the complainant, an error of judgment had been made in relation to the correction of the written test. A correction of this error alone would have been enough to put the complainant on the reserve list.

The Board also returned to the complainant the documents which he had sent in support of his request for review. It appeared that it had not opened the sub-envelopes. In its letter, the Board pointed out that the secrecy of the Board's proceedings did not allow it to communicate to the complainant the other elements he had requested. According to the complainant, the Board's answer was a mere standard reply, which, moreover, failed to comment on the oral test. Also, the evaluation sheet for the written test did not shed enough light on the evaluation.

On 4 August 2003, the complainant made a second request for review, repeating his arguments, adding the comment that the limited information on the evaluation sheet for the written part contained incorrect assessments for certain criteria. As the complainant received no reply, he made an appeal on 4 September 2003 on the basis of Article 90 of the Staff Regulations. On 3 October 2003, the Selection Board replied to the letter of 4 August 2003 maintaining its decision. By decision of 1 March 2004, the Appointing Authority rejected the complainant's appeal of 4 September 2003. The complainant was informed of the decision in a letter by the Directorate-General for Personnel and Administration of the European Commission ("DG Personnel"), which was sent by registered post on 8 March 2004, that is, two months after the deadline for replying. The letter stated that the Dutch translation of the decision would be sent as soon as possible, but the complainant never received it.

On 16 April 2004, the complainant lodged the present complaint with the Ombudsman. The complainant's allegations can be summarised as follows:

(1) The Selection Board inaccurately and wrongly evaluated the complainant's written test e) and oral test f), which resulted in what the complainant describes as "ridiculously low marks" and in his exclusion from the reserve list;

(2) EPSO did not respect the deadline for replying to the complainant's appeal on the basis of Article 90 of the Staff Regulations;

(3) The Selection Board failed to provide the complainant with reasoned replies and did not consider the evidence presented by the complainant; and

(4) EPSO failed to reply to the complainant in Dutch.

THE INQUIRY

The Commission's and EPSO's joint opinion

The Ombudsman sent the complaint to EPSO for an opinion. The opinion sent to the Ombudsman was a joint opinion of EPSO and the Commission, and contained, in summary, the following remarks:

The complainant's marks of 21/40 on written test e) and 21/40 on the oral test f) were insufficient for his inclusion on the reserve list as they did not place him among the top 200 candidates in the field of economics (the minimum mark to be among the 200 best candidates was 44/80, whereas the complainant had obtained 42/80). The complainant was informed of his marks by letter of 11 June 2003.

The complainant initially requested EPSO to re-examine his file by letter of 12 June 2003. The complainant had several non-dated packages delivered to EPSO's Competitions' department, including a bundle of documents relating to his professional experience in order to support his request for the re-examination of his results in the written and oral tests. This package, containing documents irrelevant to the re-examination of his tests, was returned to him. It should be noted that no audio CD was enclosed.

Having re-examined the file in depth, the Selection Board sent a reply to the complainant on 8 July 2003, confirming the marks for the tests e) and f) and his non inclusion on the reserve list. The complainant then submitted an appeal on the basis of Article 90(2) of the Staff Regulations, which was registered on 9 September 2003. The reply from the Appointing Authority was sent to him on 2 March 2004 and the Dutch translation on 1 June 2004.

As regards the first and third allegations, the Commission and EPSO observed that the complainant's belief that his oral test was almost perfect was only his opinion and does not reflect the judgment of the Selection Board concerning his performance when compared to that of all other candidates. In its judgment in Case T-53/00 Angioli, the Court of First Instance has ruled that "[t]he belief (of a claimant) that he or she has correctly answered the questions asked (…) does not constitute irrefutable evidence of a marking error"(2).

To support his objection, the complainant submitted argumentation and documentation in order to demonstrate the excellence of his oral test, but these could not be considered. First, the documentation was based only on his memory of the oral test and on a report he wrote after the oral test. Second, this was a competition, and the complainant was not bearing in mind that the level of the other candidates' performance may mean that a level which he qualifies, in isolation, as "excellent" may not be so when compared to the level of the other candidates' performance in the oral test. Moreover, the complainant's experience and references were not relevant to his performance in the oral test. These documents constituted the assessment of his superiors with regard to the work performed under their authority.

By claiming that his written test was marked wrongly, the complainant was claiming that the results of the test should correspond to his own assessment of his performance. Claiming that, on this basis, the Selection Board had to correct its alleged error of not awarding the complainant the mark he thought he deserved means that the Board would have had to amend its relative assessment, to the detriment of the other candidates.

Whilst the complainant's disappointment is understandable, it should be recalled that the point of a competition is to make a selection, which means that not all those who take the tests will be successful. The Community courts have clearly established that the assessment of candidates must be made in comparison with all the other candidates. In accordance with the case-law, the Selection Board's evaluation of a candidate can be censured only in case of a manifest marking error, evidence of which is not demonstrated in the present case.

The Selection Board for Open Competition COM/A/9/01 has read the various letters from the complainant. The fact that the Board confirmed its decision did not constitute an error. The obligation to reply to a request for further details or for a re-examination of a test is provided for in the procedure established in the Notice of Competition and does not mean, according to the case-law, that the Board has to justify each element of its decision. The Board must review the file, but is certainly not obliged to change its opinion (Case 225/87 Belardinelli(3)).

As regards the second allegation, the Appointing Authority replied on 1 March 2004 to the appeal which was registered on 9 September 2003. The Commission and EPSO regret that it took so long to deal with this complaint. However, whilst it is true that the decision was not forwarded to the complainant within four months, this did not prejudice the complainant's case in any way, as the Staff Regulations provide that, upon expiry of this deadline, the absence of a reply can be seen as a decision to reject a request, against which an appeal can be lodged before the Community courts. The Staff Regulations do not state that all appeals have to be dealt with within four months but rather they establish an objective, which EPSO tries to meet, and they provide an additional rule that allows for implicit negative decisions.

As regards the fourth allegation, the Commission and EPSO pointed out that the decision in French was sent on 2 March 2004, and the Dutch translation of the decision was sent on 1 June 2004, together with an apology from the Commission for the delay in sending it.

The complainant's observations

In his observations on the Commission's and EPSO's opinion, the complainant maintained his complaint. As regards the oral test, he referred to the package of documents he sent to the Commission which included what he referred to as a "transcription"(4) of the questions and answers of the oral test, as well as a CD(5). The complainant stated that, after having checked his answers together with colleagues working on the particular subjects, it is clear that the marks were "ridiculously low", at least for the oral part, for which the complainant had given correct and complete answers. According to the complainant, other candidates received other questions, which can be testified in writing by at least one other candidate who was included on the reserve list. The Commission and EPSO failed to prove that the complainant was wrong. The mere fact that the Commission and EPSO found some of the documents to be irrelevant, did not justify their returning the entire package to the complainant without even keeping a copy of its contents. The fact that the Commission did not keep a copy of that material means that the case was not examined as it should have been. According to the complainant, 200 candidates were interviewed over several days. These candidates were not all asked the same questions, so the comparison between their performance must be based on written evidence.

The marks on written test e) were represented as a total score. The complainant does not understand how the marks were compiled. The comments on the sheet were vague and, to some extent, erroneous, and did not correspond to the content of the complainant's answer. The Commission and EPSO have not clarified this point further, and the complainant could not agree with the final mark. He will thus object to the results as long as the Selection Board does not provide clear evidence of how the evaluation was performed or clear evidence of how his marks were compared and compiled.

According to the complainant, the combination of the mistakes found in test e) would have been more than enough to put him on the reserve list. It was a matter of principle for the complainant to get through the selection procedure. The complainant, who has participated in many competitions, objected to failing this Open Competition in particular.

As regards his appeal, the complainant observed that a non-reply within the deadline can be interpreted as a refusal. However, the complainant received an e-mail from the Commission in which it was stated that he would receive an answer to his complaint.

The complainant stated that Case 225/87 Belardinelli does not a contrario imply that the Selection Board did not have to justify any element of its decision.

Further inquiries

After careful consideration of the Commission's and EPSO's joint opinion and the complainant's observations, the Ombudsman considered that further inquiries were necessary with regard to the oral test. He therefore wrote to the Director of EPSO on 15 December 2005 asking EPSO to reply to the following two questions:

(1) The complainant has submitted a "transcription" of the questions that, according to him, were asked and of the answers that, according to him, he gave at the oral test. EPSO does not seem to dispute that the contents of this document correctly reflect the oral test. At first sight, it seems that nearly all of the complainant's answers were correct. In these circumstances, could EPSO please explain why it considers that the Selection Board did not evaluate the complainant's oral test inaccurately and wrongly?

(2) Could EPSO please explain why the Selection Board did not consider it necessary to take into account the "transcription" of the oral test when the complainant asked it to review his results?

EPSO's second opinion

In its second opinion, EPSO replied as follows to the questions:

As regards the first question, EPSO stressed that neither the Appointing Authority nor the Court of Justice is able to stand in for the Selection Board in the exercise of its broad powers of assessment. The Court has consistently held that the judge may censure the content of competition tests only where it deviates from the description given in the notice of competition or if it does not accord with the purposes of the test(6). EPSO also insisted on the need to guarantee the Board's independence in the exercise of their responsibilities. EPSO may not order the Board to do something nor may it stand in for the Board in the exercise of its duties, which is what it would be doing if it were able to judge that the Board had incorrectly assessed the complainant's performance.

EPSO also added that the work of a Selection Board is not an administrative task in the true sense of the term. It is rather the task of a collegiate body designated by the Appointing Authority but independent of that authority in the exercise of the powers it has been given to assess the performance of candidates. The fairness and impartiality of the decisions of a Board are guaranteed by its collegiate character. Once the Board is formally constituted, the administrative work (communications with candidates, invitations and all secretarial work) is done by EPSO's staff, but the decisions adopted by the Board are the sole responsibility of the Board (underlining added by EPSO). Consequently, it is possible to identify a potential case of maladministration only if it concerns formal problems linked to the time when or the conditions under which this administrative work was carried out - and this does not apply to the case in question. Where decisions adopted by a Board are concerned, it is up to the European Civil Service Tribunal to rule on whether or not the rules and general principles governing competitions have been complied with.

As regards the second question, EPSO stressed that it is the role of the Selection Board to assess a candidate's performance and it is not for a candidate to dictate to a Board what factors it should be looking for in assessing his performance.

There is a fundamental difference between an aptitude test and a competition during the course of which the Selection Board makes a comparative evaluation of the knowledge and aptitude of the candidates. The opinions obtained by the complainant from "colleagues specialising in the field who confirmed the correctness of his answers" cannot therefore be taken into consideration, in view of the fact that this was a competition. Only the Board is in a position to assess the quality of a candidate's performance because only that Board has a view of all the different candidates' performances.

In reply to the complainant's allegation that the Selection Board's decision was not reasoned, it should be pointed out that, by informing the candidate of the number of marks obtained for each examination after the oral examination, the Board - via the intermediary of EPSO - fully complied with the obligation laid down in the Staff Regulations concerning the need to justify its decisions. This obligation has been confirmed by case-law in the matter.

EPSO also noted that it is the very nature of an oral examination to be less standardised than a written examination, and this further extends a Selection Board's assessment powers. In any event, EPSO considers that the Board of the competition in question in no way deviated from the relevant Notice of Competition with regard to the content of the oral examination.

EPSO also added that, during the oral examination, a Selection Board is not restricted to noting whether a candidate has given a "right" or a "wrong" answer, but that it also has to assess in a broader sense the aptitude of candidates to fill the posts indicated in point VI.B of the Notice of Competition.

As case-law confirms, the task of a Selection Board during an oral examination is in no way an automatic exercise, rather it is an assessment task which implies a real margin of discretion.

The complainant's second observations

The complainant maintained his complaint and stated that the information that EPSO sends to rejected candidates is not convincing, because it is incomplete, irrelevant and vague. The complainant asked for information on the reasoning of the decision of the Selection Board and has still not received a proper answer.

The complainant also reacted to the paragraph in EPSO's opinion in which EPSO distinguishes between the decisions of the Selection Board and the administrative work undertaken by EPSO's staff. The complainant stated that this does not eliminate the obligation of the Board itself to issue decisions which are reasoned. The complainant stated that EPSO could consider printing the said paragraph on the top of the Notice of Competition, in order to see how many candidates it would still attract.

The complainant stated that he does not understand how someone who correctly answers all questions, speaks five languages, has multilingual and multicultural work experience, and who previously seemed to be judged in an EPSO competition to be fit to work in the EU environment, obtains 21/40.

The complainant concluded that the only reason he could think of why EPSO behaved in the way it did is because he was right. If not, EPSO should have nothing to fear in revealing his file.

THE DECISION

1 Preliminary remark with regard to EPSO's second opinion

1.1 In its second opinion, EPSO stated that that the work of a Selection Board is not an administrative task in the true sense of the term. It is rather the task of a collegiate body designated by the Appointing Authority but independent of that authority in the exercise of the powers it has been given to assess the performance of candidates. The fairness and impartiality of the decisions of a Board are guaranteed by its collegiate character. Once the Board is formally constituted, the administrative work (communications with candidates, invitations and all secretarial work) is done by EPSO's staff, but the decisions adopted by the Board are the sole responsibility of the Board (underlining added by EPSO). EPSO stated that, consequently, it is possible to identify a potential case of maladministration only if it concerns formal problems linked to the time when or the conditions under which this administrative work was carried out - and this does not apply to the case in question. Where decisions adopted by a Board are concerned, it is up to the European Civil Service Tribunal to rule on whether or not the rules and general principles governing competitions have been complied with.

1.2 With regard to these remarks made by EPSO, the Ombudsman would first like to point out that all notices of competition, including the present one, contain an Annex entitled "Requests for clarification - Appeal procedures - Complaints to the European Ombudsman". The present Annex stated that "[i]f, at any stage of the competition, you consider that a decision adversely affects you, you can (...), launch one of the appeal procedures or make a complaint to the European Ombudsman" (underlining added by the Ombudsman. The possibility to bring an action, under Article 236 of the EC Treaty, to the Civil Service Tribunal (previously to the Court of First Instance), or to lodge a complaint, under Article 195 of the EC Treaty, to the European Ombudsman, are clearly mentioned as alternatives in these Annexes. The Ombudsman's mandate to deal with complaints about maladministration in this respect is not limited to the mere administrative work carried out by EPSO and its staff with regard to the competitions, but also covers alleged maladministration in the decisions themselves adopted by the Selection Boards.

1.3 In this regard, the Ombudsman would like to recall, in particular, that the Court of Justice has held, in several cases concerning refusals of a Selection Board to admit candidates to a competition, that "according to established case-law based on the principle of the independence of Selection Boards, the institution in question has no power to annul or amend such a[n] [unlawful] decision (...). Nevertheless, in the exercise of its own powers the Appointing Authority is required to take decisions untainted by errors of law. It cannot therefore be bound by decisions of Selection Boards the unlawfulness of which would be liable as a consequence to vitiate its own decisions. That is the reason why the Appointing Authority is required to verify the legality of decisions taken by the Selection Board as regards in particular allowing candidates to take part in competitions (...)"(7). In the same cases, the Court has further held that "where the Appointing Authority considers (...) that one or more of the Selection Board's decisions refusing to admit candidates to the competition are illegal and that as a result the whole competition is invalidated, it cannot make an appointment. It is then under the duty to take formal note of that situation by means of a reasoned decision and recommence the whole competition procedure following publication of a new notice and if necessary the appointment of a new Selection Board (...)"(8).

1.4 The Ombudsman notes that Selection Boards are appointed to act in the name and on behalf of the Appointing Authorities and that their independence is foreseen in order to guarantee the impartiality and objectivity of the selection. It follows however from the case-law above that, although the Appointing Authority that designates the Board has no power to annul or modify the decisions taken by it, the Appointing Authority of the institution, in this case EPSO, retains the final responsibility for the legality of the Board's decisions taken in the framework of a competition. This legality obviously requires that the rules laid down in the relevant notice of competition are respected by the Board. In this context, and contrary to what is implied in EPSO's opinion, both the Ombudsman and the Civil Service Tribunal, and not only the latter institution, can examine the legality of the Board's decisions as well as the decisions of the Appointing Authority based on the Board's decisions.

2 The allegedly inaccurate and wrong evaluation of the complainant's tests and the alleged failure of EPSO to reason its replies

2.1 The complainant, first, alleged that the Selection Board had inaccurately and wrongly evaluated his written test e) and oral test f), which had resulted in what he described as "ridiculously low marks" and in his exclusion from the reserve list. The complainant considered that he had achieved a near-perfect performance in his oral test, that he had been well prepared and relaxed and that he could not have hoped for better questions than the ones that had been put to him. As regards the written test, the complainant submitted that the evaluation sheet concerning the written test did not shed enough light on the evaluation and was written in such a manner that it could be interpreted in any way. The complainant further submitted that he had found inconsistencies in the evaluation sheet with regard to criteria 2 and 3, and that he considered that the marks were too low. According to the complainant, an error of judgment had been made in relation to the correction of the written test, and a correction of this error alone would have been enough to put him on the reserve list.

In connection with the above, the complainant, second, alleged that the Selection Board had failed to provide sufficient reasons for its replies and had failed to consider the evidence presented by him. The complainant stated that he had not obtained any information from the Board concerning the oral test, but only concerning the written test. He also submitted that the Board's reply of 8 July 2003 had been a mere standard reply.

2.2 In their joint opinion, the Commission and EPSO argued, with regard to the first allegation, that the complainant's belief that his oral test was almost perfect was only his opinion and did not reflect the judgment of the Selection Board of his performance on the basis of a comparison with all other candidates. Furthermore, the complainant's belief did not constitute irrefutable evidence of a marking error. The Commission and EPSO further argued that, by claiming that his written test had been marked wrongly, the complainant was claiming that the results of the test should correspond to his own assessment of his performance in the oral test. Claiming that, on this basis, the Board had to correct its alleged error of not awarding the complainant the mark he thought he deserved meant that the Board would have to amend its relative assessment, to the detriment of the other candidates. The Commission and EPSO further pointed out that the documentation sent by the complainant was based only on his memory of the oral test and on a report he had written after the test.

The Commission and EPSO stated that the complainant was not bearing in mind that the level of the other candidates' performance might mean that a level which he qualified, in isolation, as "excellent" might not be so when compared to the level of the other candidates' performance in the oral test. The Community courts had clearly established that the assessment of candidates had to be made in comparison with all the other candidates. The Commission and EPSO concluded that, in accordance with the Community courts' case-law, the Selection Board's evaluation of a candidate could be censured only in the case of a manifest marking error, evidence of which had not been demonstrated in the present case.

With regard to the second allegation, the Commission and EPSO stated that, in order to support his request of 12 June 2003 for a re-examination of his file, the complainant had had several non-dated parcels delivered to EPSO's Competitions department, including a bundle of documents relating to his professional experience. However, this package, containing documents irrelevant to the re-examination of his tests, had been returned to him. The Commission and EPSO further pointed out that the Selection Board for the competition in question had read the various letters from the complainant. The fact that the Board had nevertheless confirmed its decision did not constitute an error. The obligation to reply to a request for further details or for a re-examination of a test was provided for in the Notice of Competition but did not mean, according to the case-law, that the Board had to justify each element of its decision. The Commission and EPSO submitted that the Board had to review the file, but was certainly not obliged to change its opinion (Case 225/87 Belardinelli)(9).

2.3 In his observations, the complainant further pointed out that the marks on written test e) had been represented as a total score, and that he did not understand how they had been compiled. The complainant furthermore observed that Case 225/87 Belardinelli did not imply that the Selection Board should not have to justify any element of its decision.

2.4 In its replies to the Ombudsman's further questions EPSO stressed, in its second opinion, that neither the Appointing Authority nor the Court of Justice is able to stand in for the Selection Board in the exercise of its broad powers of assessment. EPSO may not order the Boards to do something nor may it stand in for them in the exercise of their duties, which is what it would be doing if it were able to judge that the Board had incorrectly assessed the complainant's performance. EPSO further stressed that it is the role of the Board to assess a candidate's performance and it is not for a candidate to dictate to a Board what factors it should be looking for in assessing his performance. The opinions obtained by the complainant from "colleagues specialising in the field who confirmed the correctness of his answers" cannot therefore be taken into consideration, in view of the fact that this was a competition. Only the Board is in a position to assess the quality of a candidate's performance because only that Board has a view of all the different candidates' performances. EPSO also noted that it is the very nature of an oral examination to be less standardised than a written examination, and this further extends a Board's assessment powers. In any event, EPSO considers that the Board of the competition in question in no way deviated from the Notice of Competition with regard to the content of the oral examination.

2.5 In his second observations, the complainant stated that he does not understand how someone who correctly answers all questions, speaks five languages, has multilingual and multicultural work experience, and who previously seemed to be judged in an EPSO competition to be fit to work in the EU environment, obtains only 21/40. The complainant concluded that the only reason he could think of why EPSO behaved in the way it did is because he was right. If not, EPSO should have nothing to fear in revealing his file.

2.6 With regard to the first allegation, according to which the Selection Board had inaccurately and wrongly evaluated the complainant's written test e) and oral test f), the Ombudsman notes that test e) consisted, according to the Notice of Competition, in "[a] case study in your chosen field, designed to test your knowledge, comprehension skills and ability to analyse, draft and summarise in relation to the duties described at section II above. This test will be marked out of 40 (pass mark: 20). If you obtain a mark lower than the pass mark, you will be eliminated". The complainant obtained 21/40 for this test.

The oral test f) consisted in an "[i]nterview with the selection board to enable it to complete its assessment of your suitability to carry out the duties described at section II above. The interview will also focus on your specialised knowledge, your knowledge of the main developments in European integration and Community policies, your knowledge of the languages required by the competition notice (see point III.B.4 above) and your ability to adjust to a multicultural working environment. This test will be marked out of 40 (pass mark: 20). It you obtain a mark lower than the pass mark, you will be eliminated". The complainant obtained 21/40 for this test.

2.7 The Ombudsman notes that, according to the established case-law of the Community courts, the assessments that a Selection Board makes in a competition, when it evaluates the knowledge and abilities of candidates, constitute the expression of a value judgment. They fall within the wide discretion enjoyed by the Board and are amenable to review by the Community courts only where there has been a flagrant breach of the rules governing the Board’s work(10). The Ombudsman shall thus seek to verify whether, in the present case, a flagrant breach of these rules has been demonstrated.

2.8 The Ombudsman notes that the main reason why the complainant alleges that the tests in question were inaccurately and wrongly evaluated appears to be that his marks were allegedly low, taking into account his near-perfect oral test, the fact that he was well prepared, his knowledge of languages and his experience in the field(11). Furthermore, the Ombudsman notes that the complainant expressed his surprise at having obtained exactly the same mark of 21/40 in both tests e) and f). According to the complainant, the four-page "transcription" of the oral test demonstrated that he had correctly replied to all questions put to him and that he should thus have obtained a mark higher than 21/40 which did not reflect his experience in the field. Another reason invoked by the complainant, this time in his observations, is that the marks obtained, at least for the oral test, appeared to him to be "ridiculously low". He arrived at the conclusion after having checked his answers with colleagues. The complainant also argued that the comments on the evaluation sheet for written test e) were erroneous and contained inconsistencies with regard to criteria 2 and 3.

2.9 With regard to the complainant's arguments to support his allegation, the Ombudsman notes that, according to the case-law of the Community courts, the candidate's conviction that he did well in the tests, which in the present case the complainant tried to demonstrate by providing a "transcription" of the oral test f), does not constitute proof of an error of assessment by the Selection Board(12). The Court of First Instance has also held that the previous exercise of functions that were the subject of questions during the oral test, the satisfaction that the candidate gave to his hierarchical supervisors and the alleged knowledge of languages - the first and third elements of which the complainant in the present case also invoked - cannot constitute irrefutable proof of a manifest error in the Board's assessment of a candidate's performance in a test(13). With regard to the complainant's argument that he obtained the same mark of 21/40 on both tests e) and f), the Ombudsman would like to point out that, even if the complainant found this surprising, it cannot in itself constitute proof of a manifest error in the assessment by the Board.

2.10 The Ombudsman will therefore, below, consider the other evidence presented by the complainant in order to verify whether it constitutes proof of a manifest error in the Board's assessment of the complainant's performance in tests e) and f).

2.11 As regards written test e), the Ombudsman notes from the decision of 1 March 2004 of the Appointing Authority, that is, the Director of EPSO, that the written tests were corrected anonymously by two correctors/assessors according to the criteria established by the Selection Board, and that the latter, on the basis of their comments, decided collegially on the final mark for each test. The Ombudsman notes that the final evaluation sheet established with regard to written test e) contained the following comments with regard to the complainant's performance:

"- Comprehension skills, logical structure of presentation, ability to draft:

Uneven in logical structure (unclear in test A, much better in test B). However all essential points treated under test A.

- Ability to analyse, quality of argument:

Well structured answers under tests B & C, but lacking key elements in the argumentation (fails to note non-coplience [sic] with [...] under test B)

- Knowledge of the field:

Basic knowledge OK, but lacking in EU macroeconomics policies

- Overall evaluation of the test:

Just passes the requirements

(...) MARKS: 21/40".

2.12 The Ombudsman has carefully analysed the above wording in the evaluation sheet. Considering that criteria 2 and 3 concerned two different aspects of the evaluation, namely, on the one hand, the ability to analyse and the quality of argument, and on the other hand, the knowledge of the field, the Ombudsman does not find that the wording of the assessment of the complainant's performance on those points contained inconsistencies. The Ombudsman further notes that the complainant did not provide any other evidence in order to demonstrate that there were inaccurate or wrong evaluations by the Selection Board as regards written test e).

2.13 As regards the oral test f), the Ombudsman is obviously not in a position to assess the Selection Board's evaluation of all the candidates' performances during their oral test. The Ombudsman finds that a mark of 21/40 appears to be indeed a very low mark for someone who considers that he has achieved a near-perfect performance in the said test, that is, just above the pass park of 20/40. However, considering that the Selection Board has a wide discretion in the comparative assessment of the candidates, on whose performance the Ombudsman has no information, this low mark, in itself, does not constitute sufficient proof of a manifest error in the assessment by the Board.

2.14 On the basis of the above considerations, it appears that the complainant has not substantiated his allegation that the written test e) and the oral test f) were inaccurately and wrongly evaluated. The complainant has therefore not demonstrated that the Selection Board stepped outside the limits of its legal authority. Hence, the Ombudsman finds no maladministration with regard to this aspect of the case.

2.15 As regards the second allegation of the complainant that the Selection Board failed to provide sufficient reasons for its replies and did not consider the evidence presented by the complainant, t he Ombudsman notes from the file that, by letter of 11 June 2003, the Board informed the complainant of his marks in the various tests and of the fact that his name had not been put on the reserve list. By letter of 8 July 2003, the Board confirmed these marks and furthermore included a copy of the complainant's written test accompanied by the evaluation sheet. With regard to the oral test, the Board, in its letter to the complainant, recalled that its aim was to enable it to complete its assessment of the complainant's suitability to carry out the duties described at section II of the Notice of Competition and that the interview also concerned the complainant's specialised knowledge, his knowledge of the main developments in European integration and Community policies, his knowledge of the languages and his ability to adjust to a multicultural working environment. The Ombudsman notes from the file that, in its decision of 1 March 2004, the Appointing Authority stated, with regard to the oral test, that the questions asked were pertinent for making the above assessment. The complainant did not contest the veracity of this statement.

2.16 With regard to the failure to provide sufficient reasons for its replies, the Ombudsman recalls that the communication of the marks obtained in the various tests constitutes, according to the case-law, an adequate statement of the reasons on which the Selection Board's decisions are based(14). In the present case, the complainant was provided with the marks obtained in written test e) and oral test f). Moreover, as regards written test e), the complainant furthermore obtained, in addition to the communication of his mark, a copy of his test and of the evaluation sheet, which contained specific remarks and information on his performance. On the basis of the above, the Ombudsman considers that the Board has provided a sufficiently reasoned decision with regard to the complainant's performance in the written test e) and oral test f).

2.17 As regards the allegation that EPSO failed to consider the evidence presented by the complainant in the letter he submitted to EPSO in June 2003, the Ombudsman notes that the evidence in question consisted of documents concerning the complainant's previous professional experience and what he referred to as a "transcription" of his oral test.

2.18 As regards the documents related to the complainant's professional experience, the Ombudsman is of the opinion that, considering that those documents have no significance in relation to the performance in the tests as such, the Selection Board was entitled to conclude that they were not relevant for the re-evaluation of the assessment made of the complainant's written and oral tests.

2.19 As regards the "transcription" of the oral test, the Ombudsman notes that principles of good administration require that, when taking decisions, the institutions shall take into consideration the relevant factors and give each of them its proper weight in the decision whilst excluding any irrelevant element from consideration(15). In the present case, it appears from the document itself that the "transcription" of the oral test was not a transcription strictu sensu (which would have implied that the oral test had been recorded), but rather a recollection made a posteriori by the complainant of the questions asked and answers given during his oral test. In his observations, the complainant did not contradict EPSO's statement that this document was written after the oral test and based only on his memory of that test. Besides, and due to the essentially comparative nature of the evaluation made of candidates participating in oral exams, the mere transcription of a candidate's memories of that exam cannot provide a relevant basis to ask the Board to revisit its assessment. The Ombudsman therefore considers that this document does not constitute a relevant factor for the Board's evaluation of the complainant's performance in his oral test. The Board's failure to take it into consideration therefore does not constitute an instance of maladministration.

2.20 On the basis of the above observations, the Ombudsman considers that the complainant's allegations that the Selection Board has inaccurately and wrongly evaluated his written test e) and oral test f) and has failed to reason its replies and to consider the evidence presented by him cannot be sustained. No instance of maladministration by EPSO was therefore found.

3 Alleged failure to respect the deadline and to reply in Dutch

3.1 The complainant alleged that EPSO did not respect the deadline for replying to his appeal on the basis of Article 90(2) of the Staff Regulations. The complainant also alleged that EPSO failed to reply to him in Dutch.

3.2 The Commission and EPSO stated that the Appointing Authority had replied on 2 March 2004 to the complainant's appeal, which had been registered on 9 September 2003. They regretted that it had taken so long to deal with the complaint. However, whilst it was true that the decision was not forwarded to the complainant within four months, this did not prejudice the complainant's case in any way, as the Staff Regulations provide that, upon expiry of this deadline, the absence of a reply can be taken as a decision to reject a request, against which an appeal can be lodged before the Community courts. The Staff Regulations do not state that all appeals have to be dealt with within four months but rather they establish an objective which EPSO tries to meet and they establish an additional rule that allows for implicit negative decisions.

The Commission and EPSO further pointed out that the Dutch translation was sent on 1 June 2004, together with an apology from the Commission for the delay. In his observations, the complainant made no further comments on this aspect of the complaint.

3.3 The Ombudsman welcomes EPSO's statement that it tries to reply to all appeals within four months and he encourages EPSO to continue to try to achieve this objective. With regard to the argument, advanced by the Commission and EPSO, that the delay in replying to the appeal did not prejudice the complainant's rights, the Ombudsman would also like to recall that, a ccording to Article 90(2) of the Staff Regulations, the Appointing Authority shall notify the person who has lodged an internal complaint of its reasoned decision within four months. This is in line with the principles of good administration. It is true that Article 90(2) of the Staff Regulations provides that the lack of reply within the period of four months laid down in this provision is deemed to constitute a negative decision. However, this rule is meant to protect the citizen where an administration does not comply with its legal obligations. It does not in any way give the administration the right to depart from the obligations resulting from the principles of good administration(16). The Ombudsman further encourages the Appointing Authority, whenever it expects that its reply will be sent after the expiry of the four-month deadline, to send a holding letter to the complainant. In this way, the complainant can also be prepared for the situation foreseen in Article 91(3) of the Staff Regulations which provides that "where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired [that is, before the period of three months since the implied rejection decision], the period for lodging the appeal shall start to run afresh".

3.4 The Ombudsman notes from the file that the complainant made his appeal on the basis of Article 90(2) of the Staff Regulations on 4 September 2003, in the Dutch language, and that his appeal was registered on 9 September 2003. According to Article 90(2) of the Staff Regulations, the reasoned decision of the Appointing Authority had to be communicated to the complainant within four months from the date on which the complaint was lodged, that is, at the latest by 9 January 2004 if the date of registration is considered as being the relevant date for the purpose of calculating the time-limit. The decision of the Appointing Authority, that is, the Director of EPSO, in the French language, was dated 1 March 2004 and was sent to the complainant by letter of 2 March 2004, nearly two months after the expiry of the deadline. With regard to that delay, the Ombudsman however notes that, in their joint opinion, EPSO and the Commission have expressed their regret that it had taken so long to deal with this complaint. No further inquiries into this aspect of the complaint therefore appear to be necessary. The Ombudsman nevertheless considers it useful to make a further remark in this regard.

3.5 As regards the alleged failure to reply to the complainant in Dutch, the Ombudsman recalls the principle that, when citizens write to the institutions in one of the Treaty languages, the institutions shall reply in the same language(17). The letter of 2 March 2004 by which the French version of the Appointing Authority's decision was sent, indicated that the translation would be sent shortly thereafter. The Ombudsman notes that the Dutch translation of the decision was only sent to the complainant on 1 June 2004. However, this letter contained an apology for this additional delay. Considering that the complainant finally obtained the Dutch text of the decision and that an apology was presented, no further inquiries into this aspect of the case therefore appear to be necessary.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO.

The Ombudsman therefore closes the case.

FURTHER REMARK

The Ombudsman welcomes EPSO's statement that it tries to reply to all appeals within four months. According to Article 90(2) of the Staff Regulations, the Appointing Authority shall notify the person who has lodged an internal complaint of its reasoned decision within four months. This is in line with the principles of good administration. It is true that Article 90(2) of the Staff Regulations provides that the lack of reply within the period of four months laid down in this provision is deemed to constitute a negative decision. However, this rule is meant to protect the citizen where an administration does not comply with its legal obligations. It does not in any way give the administration the right to depart from the obligations resulting from the principles of good administration. The Ombudsman would therefore consider it useful if the Commission and EPSO could act accordingly and bear this in mind in similar cases.

The Ombudsman further encourages the Appointing Authority, whenever it expects that its reply will be sent after the expiry of the four-month deadline, to send a holding letter to the complainant. In this way, the complainant can also be prepared for the situation foreseen in Article 91(3) of the Staff Regulations which provides that "where a complaint is rejected by express decision after being rejected by implied decision but before the period for lodging an appeal has expired (i.e. before the period of three months since the implied rejection decision), the period for lodging the appeal shall start to run afresh".

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2001 C 240 A, p. 12.

(2) Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 94.

(3) Case 225/87 Belardinelli v Court of Justice [1989] ECR 2353, paragraph 10.

(4) The Ombudsman notes that the said document is not a "transcription" of the oral test, but rather a description of the questions put to and the answers given by the complainant.

(5) The Ombudsman notes that EPSO formally contested that an audio CD was included in the package of documents sent by the complainant.

(6) Case T-285/02 and T-395/02 Vega Rodriguez v Commission, judgment of 9 November 2004, not yet reported.

(7) Case 142/85 Schwiering v Court of Auditors [1986] ECR 3177, paragraphs 19-20.

(8) Case 321/85 Schwiering v Court of Auditors [1986] ECR 3199, paragraph 13; Joined Cases 322/85 and 323/85 Hoyer and others v Court of Auditors [1986] ECR 3215, paragraph 14.

(9) Case 225/87 Belardinelli v Court of Justice [1989] ECR 2353, paragraph 10.

(10) See Case T-371/03 Le Voci v Council, judgment of 14 July 2004, not yet reported, paragraph 102; Case T-102/98 Papadeas v Committee of the Regions [1999] ECR-SC I-A-211 and II-1091 , paragraph 54; Case T-95/98 Gogos v Commission [2000] ECR-SC I-A-51 and II-219, paragraph 36; Case T-193/00 Felix v Commission [2002] ECR-SC I-A-23 and II-101, paragraph 36.

(11) In his letter of 12 June 2003, the complainant stated that "considering my extensive preparation for these examination parts, my knowledge of languages and my experience in the field and the Commission, I am convinced that there have been mistakes in the correction of the concerned examination parts".

(12) "La conviction de la requérante d'avoir correctement répondu aux questions posées, les bons résultats qu'elle a obtenus aux épreuves écrites, l'exercice préalable de fonctions qui ont fait l'objet de questions au cours de l'épreuve orale, la satisfaction que la requérante a pu donner à ses supérieurs hiérarchiques ou son niveau allégué de connaissance de la langue française ne sauraient constituer des preuves irréfutables d'une erreur manifeste d'appréciation" (See Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 94).

(13) Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 94.

(14) See Case T-294/03 Gibault v Commission, judgment of 31 May 2005, not yet reported, paragraph 39; and Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraphs 67 to 69.

(15) See Article 9 of the European Code of Good Administrative behaviour, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).

(16) See also the Ombudsman's decision in case 1733/2004/OV, which is available on the Ombudsman's website (http://www.ombudsman.europa.eu/decision/en/041733.htm).

(17) See Article 21(3) of the EC Treaty and Article 13 of the European Code of Good Administrative Behaviour, which can be consulted on the Ombudsman's website (http://www.ombudsman.europa.eu/code/en/default.htm).