The background to the complaint

1. This case concerns the rejection of the complainant's application in a selection procedure organised by the European Food Safety Authority (EFSA).

2. The complainant is an Italian citizen who participated in selection procedure EFSA/X/AD/2011/017 for the position of 'Learning and Knowledge Specialist'.

3. On 24 April 2012, EFSA informed her that she had not been admitted to the interview stage of the selection procedure. On the same day, the complainant asked EFSA to clarify why her application was unsuccessful.

4. On 15 May 2012, EFSA informed the complainant that the total score she obtained on the basis of the information provided in her application (54 out of 70 points) was below the threshold (55 points) for evaluating applications further.

5. On 16 May 2012, the complainant sent a further clarification request to EFSA concerning the evaluation criteria applied in the selection procedure, since she deemed it contradictory that she obtained the maximum score for the criterion of 'at least three years of professional experience in the field of Learning and Training' (20 out of 20 points), whereas her score for the criterion of 'practical experience in project management' was 4 out of 10 points. Subsequently, the complainant also asked EFSA if a list of successful candidates was publicly available.

6. EFSA replied on 22 June 2012 and confirmed that, prior to assessing the applications, the Selection Board determined the expected levels and corresponding points for each selection criterion. It also explained that, following a comparative assessment of all applications, the Selection Board decided to invite for an interview only those candidates who best met the competency requirements for the job.

7. On 19 June 2012, the complainant submitted a complaint pursuant to Article 90(2) of the Staff Regulations of Officials of the European Union (hereinafter referred to as the 'Staff Regulations') to the Executive Director of EFSA. She argued that she had been adversely affected by the decision taken by EFSA and asked for further information concerning the selection criteria and the qualitative evaluation of her application.

8. On 18 October 2012, EFSA replied to the complainant's Article 90(2) complaint and confirmed the contested decision of the Selection Board. It explained that the Selection Board had established that the maximum score for the "essential criteria" was 70 points. An additional 45 points were envisaged for the "advantageous criteria". Only applications of candidates who scored at least 55 points for the essential criteria were evaluated in relation to the advantageous criteria indicated in the call. EFSA also pointed out that the fulfilment of the essential criterion of 'at least three years of professional experience in the field of Learning and Training' was evaluated on the basis of the number of years of relevant experience. As for the remaining essential criteria, the scoring was the result of a quantitative and qualitative assessment, taking into account the tasks the jobholder would be assigned within EFSA.

9. On 11 January 2013, the Regional Ombudsman of Emilia-Romagna forwarded this complaint to the European Ombudsman.

The subject matter of the inquiry

10. The Ombudsman opened an inquiry into the following allegations and claims:

Allegations

(1) EFSA failed to provide concrete and specific reasons for its decision to reject the complainant's application, thereby violating Articles 18 and 22 of the European Code of Good Administrative Behaviour.

(2) EFSA acted unfairly when it excluded the complainant from the selection procedure.

(3) EFSA failed to communicate the evaluation criteria in a clear and unequivocal manner to the complainant.

Claims

(1) EFSA should provide concrete and specific reasons for its decision to reject the complainant's application.

(2) EFSA should review its assessment of the complainant's application.

(3) EFSA should communicate the evaluation criteria in a clear and unequivocal manner to the complainant.

The inquiry

11. On 19 February 2013, the Ombudsman opened an inquiry and asked EFSA to submit an opinion on the complaint.

12. EFSA's opinion was forwarded to the complainant with an invitation to make observations, which the complainant sent on 31 July 2013.

The Ombudsman's analysis and conclusions

A. Allegation that EFSA failed to provide concrete and specific reasons for its decision and related claim

Arguments presented to the Ombudsman

13. In support of her allegation, the complainant argued that EFSA merely communicated her marks to her but failed to provide her with an explanation regarding why she had obtained only 4 out of 10 points for the 'practical experience in project management' criterion and 16 out of 20 points for the 'experience in learning needs assessment, instructional design, delivery and evaluation' criterion. She took the view that her evaluation results were contradictory.

14. In its opinion, EFSA pointed out that selection boards have the general obligation to state the reasons on which a decision is based but also need to respect the secrecy surrounding the deliberations, as required by Article 6 of Annex III of the Staff Regulations[1]. EFSA also stated that, according to case-law, this secrecy was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings, while protecting them from all external interferences and pressures. On this basis, EFSA argued that case-law is consistent in holding that "communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the selection board's decisions are based"[2]. It added that the Civil Service Tribunal has further clarified that "the communication to the eliminated candidates of the individual or intermediate marks entails informing them not only of their elimination from the next stage of the selection procedure, but also of the reasons for their failure, by providing them with particulars of the subjects or criteria in relation to which the selection board did not consider their performance satisfactory"[3].

15. EFSA considered that, by having provided the complainant with the breakdown of the various marks awarded on the basis of the criteria contained in the Vacancy Notice, it gave full reasons for her exclusion. In addition, EFSA put forward that the assessment was based on a comparative analysis of the applications received and that the complainant was informed accordingly.

16. As regards the complainant's argument that her score for the 'at least three years of professional experience in the field of Learning and Training' criterion (20/20) contradicted her score for the 'practical experience in project management' criterion (4/10), EFSA explained that the former score resulted from a quantitative assessment, that is, the calculation of the number of years of experience she declared to have in her CV. On the other hand, her scores for the 'experience in learning needs assessment, instructional design, delivery and evaluation' criterion (16/20) and the 'practical experience in project management' criterion (4/10), were the result of a qualitative and comparative assessment based on the tasks that "the jobholder would be assigned to at EFSA". Moreover, EFSA emphasised that according to settled case-law, decisions of a selection board in a competition must take into account "the nature of the proceedings concerned at the stage of examination of the abilities of the candidates, [which] are primarily comparative in character and accordingly covered by the secrecy inherent in those proceedings"[4].

17. EFSA also pointed out that, in accordance with the Guidelines concerning the processing operations in the field of staff recruitment of 10 October 2008 issued by the European Data Protection Supervisor (hereinafter 'EDPS'), it provided the complainant with the detailed marks she was awarded with respect to each criterion. Further disclosure of information regarding the deliberations and proceedings would have prejudiced the requirement of confidentiality which is fundamental for the protection of the impartiality and independence of the Selection Board.

18. EFSA concluded that by providing the complainant with full answers to all her requests for information and by giving her additional information on the procedure, it had fully complied with its obligations deriving from the applicable legal framework and settled case-law.

19. In her observations, the complainant argued that EFSA merely communicated her scores, without specifying further the underlying assessment criteria. She also argued that EFSA was obliged to provide her with the marking system which the Selection Board had established.

The Ombudsman's assessment

20. The Ombudsman points out that, within the context of the duty to state reasons for a decision rejecting a candidate's application, the institution concerned needs to reconcile the secrecy of the proceedings of the selection board with the requirements of transparency[5]. The Ombudsman also acknowledges that, according to case-law of the EU courts, the legal obligation of a selection board to give reasons for its decision is fulfilled by providing the candidate with the marks obtained.In respect of EFSA's reference to the secrecy of the proceedings of selection boards, the Ombudsman notes that the EU courts have also clarified that "secrecy runs counter to divulging the attitudes adopted by individual members of Selection Boards and also to revealing all the factors relating to individual or comparative assessment of candidates"[6]. However, the secrecy of the proceedings of selection boards does not prevent disclosure to candidates of the evaluation criteria or of a detailed breakdown of marks in respect of a particular test[7].

21. The Ombudsman notes that, in both its letters dated 15 May and 22 June 2012, EFSA explained to the complainant that other candidates obtained a higher score for the criteria established in the Vacancy Notice. Furthermore, EFSA informed the complainant of the maximum number of points for each of these criteria and of the number of points she obtained for each criterion. EFSA moreover informed the complainant of the relevant threshold for considering applications further. The Ombudsman is therefore satisfied that EFSA provided sufficient details as regards the reasons underpinning its decision to reject the complainant's application.

22. As regards the complainant's argument that the assessment was contradictory, EFSA explained, in its decision on her Article 90(2) complaint, that the scoring in relation to the criteria of 'practical experience in project management' and 'experience in learning needs assessment, instructional design, delivery and evaluation' was the result of a quantitative and qualitative assessment, taking into account the tasks that the jobholder would be assigned within EFSA. The Ombudsman considers that EFSA has thus provided appropriate reasons in support of its assessment.

23. In light of the above considerations, the Ombudsman concludes that the complainant's allegation cannot be sustained. As a consequence, the related claim cannot succeed either.

B. Allegation that EFSA acted unfairly when it excluded the complainant from the selection procedure and related claim

Arguments presented to the Ombudsman

24. In its opinion, EFSA argued that the complainant's application had been reassessed in the framework of the complainant's Article 90(2) complaint and that the decision of the Selection Board was confirmed. In particular, the Selection Board met on 18 October 2012 in order to check if any errors had occurred in the assignment of points to the complainant's application. During this meeting, the Selection Board confirmed that it had carried out a quantitative assessment of the first essential criterion ('at least three years of professional experience in the field of Learning and Training'), and candidates having three years of relevant experience obtained the maximum number of points (20). As regards the remaining essential criteria, the assessment was qualitative and comparative, taking into account all the applications.

25. EFSA also highlighted that, on the basis of the comparative assessment of the scores obtained by other candidates, and in view of the minimum mark of 80 points established by the Selection Board as the threshold for inviting candidates to an interview, the complainant's score did not place her among the best candidates. Accordingly, her application was not evaluated in relation to the advantageous criteria. In this respect, EFSA added that selection boards enjoy wide discretion and do not only take into account the information provided in the on-line applications (CVs) and the experience of candidates, but also undertake a comparative assessment between candidates.

26. EFSA also submitted that according to settled case-law, the Selection Board is not obliged to specify why the "answers were considered to be unsatisfying"[8].

27. EFSA also observed that even if an additional point had been assigned to the complainant in order to obtain the minimum points needed to pass the essential criteria assessment stage (55 out of 70), this would not have been sufficient for her to be selected, "since her marks were not among the best in order to attain the 80 points required to be invited to the interview".

28. Against this background, EFSA concluded that it acted fairly and in an objective manner when assessing the complainant's application as it applied the scoring system established in advance objectively and treated all applicants equally. In assessing the complainant's application, the Selection Board meticulously observed the requirements laid down in the Vacancy Notice, in accordance with case-law.

29. In her observations, the complainant took the view that the mere communication of the marks obtained constitutes an adequate statement of reasons only when the selection procedure is test-based. In the present case, where a comparative evaluation of the candidates' CVs was made, the Selection Board should have specified the reasoning, either quantitative or qualitative, behind the decision to exclude her from the selection procedure since the score itself did not reveal the scoring system applied.

30. Furthermore, the complainant challenged the secrecy of the scoring system applied by the Selection Board. In her view, its disclosure would not have undermined the impartiality and independence of the Selection Board, since neither its members nor the list of successful candidates would have been revealed.

The Ombudsman's assessment

31. At the outset, the Ombudsman points out that, according to settled case-law of the EU courts[9], selection boards have wide discretionary powers when assessing the professional experience and knowledge of the candidates in a selection procedure. Recognising the discretion enjoyed by selection boards, the Ombudsman will only find an instance of maladministration where the decision of a selection board is tainted by a manifest error of assessment.

32. In this case, the Vacancy Notice set out the following successive stages for assessing applications: eligibility check, evaluation of application, interviews, establishment of a reserve list and appointment. According to Point 7.3 (Interviews), "the best-qualified applicants, who obtained the best scoring within the evaluation, are short-listed and will be invited for an interview by the Selection Board". It follows that, in line with the Vacancy Notice, the invitation of candidates to an interview was dependent on a comparative assessment.

33. Other than arguing that EFSA should have provided further details as regards the scoring of her application, which has been considered in the assessment of her first allegation above, the complainant did not put forward any arguments suggesting that EFSA committed a manifest error of assessment. Nor did the complainant explain how the fact that only the candidates considered best qualified would be invited to an interview resulted in unfairness. It should also be noted that the complainant's application was reassessed in the framework of the consideration of her Article 90(2) complaint. That reassessment led EFSA to uphold its decision.

34. On the basis of the above considerations, the Ombudsman finds that the complainant's second allegation cannot be sustained. It follows that the complainant's related claim cannot succeed either.

C. Allegation that EFSA failed to communicate the evaluation criteria in a clear and unequivocal manner to the complainant and related claim

Arguments presented to the Ombudsman

35. In support of her allegation, the complainant pointed out that EFSA merely communicated the breakdown of her marks with regard to the list of the different criteria under assessment. In her view, those criteria cannot be defined as such, since they represent only the object of the assessment and not the quantitative and qualitative parameters used to assess the applications.

36. In its opinion, EFSA took the view that the complainant received clear and complete information on the selection procedure, the criteria applied and the specific assessment of her application. In particular, the complainant received specific information on the scoring system established by the Selection Board.

37. EFSA furthermore explained that, in accordance with settled case-law, the criteria of assessment were defined and published in the Vacancy Notice and that the Selection Board established the scoring system of the selection criteria at its meeting of 31 January 2012. It ensured that more weight was given to the 'essential criteria' (referred to in point 6.A of the Vacancy Notice) than to the 'advantageous criteria' (referred to in point 6.B of the Vacancy Notice). Accordingly, it was decided that the 'essential criteria' would be assigned a maximum of 70 points and that the 'advantageous criteria' would be assigned a maximum of 45 points, bringing the total maximum score to 115 points. Only the applications of candidates who obtained 55 points or more for the essential criteria were also evaluated in relation to the advantageous criteria.

38. Against this background, EFSA concluded that the criteria used to assess applications were those published in the Vacancy Notice and that the explanations provided therein were clear and unequivocal.

39. In her observations, the complainant reiterated her view that EFSA failed to provide clear information about the comparative evaluation criteria that were applied.

The Ombudsman's assessment

40. The Ombudsman notes that, in its replies, EFSA has given detailed information to the complainant as regards the way the selection procedure was carried out. The information EFSA has given is in line with the Vacancy Notice and the case-law of the EU courts and therefore appears to be reasonable. While the complainant expressed her dissatisfaction with the level of detail provided, she did not submit any substantiated arguments that would call into doubt EFSA's position.

41. In light of the above, the Ombudsman concludes that there was no maladministration in EFSA's conduct with regard to the complainant's third allegation. As a result, her corresponding claim cannot succeed either.

D. Conclusion

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

There was no maladministration in EFSA's conduct.

The complainant, the Regional Ombudsman of Emilia-Romagna and EFSA will be informed of this decision.

 

Emily O´Reilly

Done in Strasbourg on 9 April 2014

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[1] Case C-254/95 P Parliament v Innamorati [1996] ECR I-3423, paragraphs 24 to 31, Case F-74/07 Meierhofer v Commission [2008] ECR-SC I-A-1-319 and II-A-1-1745, paragraphs 30 to 32.

[2] Case T-153/95 Kaps v Court of Justice [1996] ECR-SC I-A-23 and II-663, paragraph 81; Joined Cases T-167/99 and T-174/99 Giuletti and Others v Commission [2001] ECR-SC I-A-93 and II-441, paragraph 81 and Case T-294/03 Gibault v Commission [2005] ECR-SC I-A-141 and II-635, paragraph 39.

[3] Case F-74/07 Meierhofer v Commission, cited in footnote 1 above, paragraph 33.

[4] Case C-254/95 P Parliament v Innamorati, cited in footnote 1 above.

[5] Case T-72/01 Pyres v Commission [2003] ECR-SC I-A-169 and II-861, paragraphs 70-71.

[6] Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957, paragraph 123; Case 89/79 Bonu v Council [1980] ECR I-553, paragraph 5; Case C-254/95 P Parliament v Innamorati, cited in footnote 1 above, paragraph 24; and Case 40/86 Kolivas v Commission [1987] ECR 2643 paragraph 18.

[7] See the Ombudsman's decision in own-initiative inquiry OI/5/2005/PB, available at: http://www.ombudsman.europa.eu/cases/decision.faces/en/3706/html.bookmark

[8] Case T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 34 and Case F-147/06 Dragoman v Commission [2008] ECR-SC I-A-I-265 and II-A-1-1411, paragraphs 78-79.

[9] Case F-12/05 Tas v Commission [2006] ECR-SC I-A-1-79 and II-A-1-285; Case T-115/89 González Holguera v Parliament [1990] ECR II-831; Case T-101/96 Wolf v Commission [1997] ECR-SC I-A-351 and II-949; Case T-244/97 Mertens v Commission [1999] ECR-SC I-A-23 and II-91; and Case T-25/03 de Stefano v Commission [2005] ECR-SC I-A-125 and II-573.