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

The background to the complaint

1. The complainant took the tests of selection procedure EPSO/CAST/S/1/2011 - Portuguese language translators (the 'selection procedure'), which consisted in the translation of texts from English and French into Portuguese. The European Personnel Selection Office ('EPSO') informed her that her score did not allow her name to be included in the database of successful candidates.

2. The complainant asked EPSO to provide her with a copy of her corrected scripts but it only sent her a copy of her unmarked scripts. The complainant then asked to be provided with a copy of the original texts in English and French. EPSO replied that "unfortunately, [it] do[es] not provide the originals of the tests."

3. The complainant argued that, without the original texts, she was unable to confirm that the results of her tests were correct. She also wished to be informed of the deadline for submitting complaints about the selection procedure. EPSO replied that, according to the Call for expressions of interest (the 'Call'), the complainant could request a review within 10 days of the communication of the results[2].

4. Subsequently, the complainant contacted the European Ombudsman.

The subject matter of the inquiry

5. The complainant alleged that by refusing to provide her with the examination papers, EPSO made it impossible for her properly to use her right to request a review.

6. The complainant claimed that EPSO should provide her with the examination papers and consider the time limit for a request for review to start running afresh from the date of their receipt.

The inquiry

7. On 13 December 2012, the Ombudsman forwarded the complaint to EPSO for its opinion.

8. On 5 April 2013, the Ombudsman received EPSO's opinion in English and, on 23 April 2013, its translation into Portuguese, which was forwarded to the complainant with an invitation to submit observations. No observations were received from the complainant.

The Ombudsman's analysis and conclusions

A. Allegation of impossibility to properly request a review

9. In the letter opening the inquiry, the Ombudsman asked EPSO to explain clearly:

(i) the legal basis for its decision not to provide the examination papers; and

(ii) the usefulness of the provisions of Point X of the Call, entitled 'Review/ Appeal Procedures', giving candidates the right to submit a request for review if they consider "that a mistake has been made or that EPSO has acted unfairly ... and that [their] interests have been prejudiced as a result" (emphasis added), when EPSO does not provide the examination papers and candidates cannot therefore compare them against their translation scripts which EPSO discloses to them upon request.

Arguments presented to the Ombudsman

10. In its opinion, EPSO referred to the obligation to state reasons enshrined in Article 296 of the Treaty on the Functioning of the European Union and to the secrecy which applies to the proceedings of selection boards, in accordance with Article 6 of Annex III to the Staff Regulations of Officials of the European Union (the 'SR'). It further referred to the case-law of the Court of Justice of the European Union (the 'CJEU') according to which, the communication of the marks obtained constitutes a sufficient statement of reasons for the decisions of the selection boards, who are not required to specify which candidates' answers were considered inadequate in order to enable them to determine whether or not it is appropriate to lodge a complaint.

11. EPSO stated further that Point X of the Call provides for invaluable support to candidates who believe that they have been treated unfairly. According to EPSO, "[i]n the replies, candidates receive answers to their questions, sometimes with detailed explanations. [The complainant] asked to receive the original texts... of her tests after receiving her competency (translation) tests scores so that she could subsequently check if any of the above situations [that is (i) a mistake; (ii) unfairness; (iii) failure to comply with the rules governing the selection procedure; and/or (iv) prejudice to her interests] occurred." However, in EPSO's view, the complainant could have requested a review immediately after receiving her results "[b]y giving at least a mere indication of why she believed she had been wrongly treated". According to EPSO, "[e]ven if it was legally possible for [the complainant] to receive her examination papers", the CJEU has clearly established that the personal conviction of a candidate does not constitute irrefutable evidence of a manifest error of assessment.

12. Finally, EPSO explained that it could not disclose the original texts because these were included in a "tests items database" and could be reused. The Call only provided candidates with the possibility of requesting copies of their translation scripts without corrections. EPSO indeed provided a copy of the complainant's translation scripts and complied fully with the applicable case-law when replying to the complainant. While it empathised with the complainant's disappointment, EPSO considered that it had fulfilled its obligation to state reasons and to provide her with all the necessary information.

13. The complainant did not submit any observations on EPSO's opinion.

The Ombudsman's assessment leading to a draft recommendation

14. First, the Ombudsman does not see, and EPSO did not explain, how disclosing the original texts could compromise the secrecy of the proceedings of the Selection Board which, as EPSO correctly noted, Article 6 of Annex III to the Staff Regulations aims to safeguard[3]. The Ombudsman understands that EPSO refused to provide the complainant with a copy of her corrected scripts because the corrections could give an indication of the positions adopted by the individual members of the Selection Board, or of the personal and/or comparative assessments of the candidates. However, it is difficult to see how disclosing the original texts to be translated could provide any such information.

15. Second, the Ombudsman does not see the relevance of the reference to the clause in the Call which states that "[c]andidates can obtain a copy of their translation script (not corrected) on request"[4] to the matter under inquiry. It is clear that EPSO acted in accordance with that clause. It is not clear, however, and EPSO did not explain, why the above clause should be interpreted to mean that access to the original texts to be translated must necessarily be refused.

16. Third, EPSO's argument that the original texts cannot be disclosed since they may be reused is also entirely unconvincing. The Ombudsman considers that it should not be particularly cumbersome or difficult for EPSO's selection boards to choose different texts from the available literature for every translation competition. In any event, in a translation exercise, prior knowledge of a text does not appear to be as helpful as the prior knowledge of questions asked in a computer-based test ('CBT') could be.

17. Fourth, the Ombudsman agrees with EPSO's understanding of the CJEU's case-law that, "[e]ven if it was legally possible for [the complainant] to receive her examination papers", she would still need to provide evidence of a manifest error of assessment, since her personal impressions are insufficient in this regard. In this respect, however, the Ombudsman must also draw EPSO's attention to the argument repeatedly put forward by the complainant that, in order to properly justify her request for review, she would first need to be able to cross-check her translations against the original texts. Having refused the complainant access to the original texts, EPSO effectively prevented her from properly deciding on the appropriateness and the probable success of a request for review.

18. In EPSO's view, however, the complainant could have requested a review all the same, namely by "[g]iving at least a mere indication of why she believed she had been wrongly treated in order that the selection panel could review her tests and/or make additional checks". The Ombudsman emphasises, however, that such a statement wilfully ignores the very nature of the tests in question, namely translation. It is difficult to see how the complainant could have been reasonably expected to put forward any "indication of why she believed she had been wrongly treated" if she was unable to cross-check the uncorrected translation scripts against the original texts, and against the marks obtained.

19. It results from all the above that EPSO's refusal to provide the complainant with the original examination papers (i) was unwarranted, and (ii) had the effect, in practice, of rendering the possibility offered to her by the provisions of Point X of the Call devoid of any useful purpose. This constituted an instance of maladministration.

20. When the Ombudsman identifies an instance of maladministration, she tries to achieve a solution which could be satisfactory to the complainant. However, considering the general importance of this issue, the Ombudsman considers that it would be more useful to make a draft recommendation, in accordance with Article 3(6) of her Statute. The Ombudsman recommends that EPSO disclose the original texts of the translations not only to the complainant but also to all candidates who request them.

B. The draft recommendation

On the basis of the inquiries into this complaint, the Ombudsman makes the following draft recommendation to EPSO:

EPSO should disclose the original texts of the translations not only to the complainant but also to all candidates who request them.

The Director of EPSO and the complainant will be informed of this draft recommendation. In accordance with Article 3(6) of the Statute of the European Ombudsman, EPSO shall send a detailed opinion by 30 May 2014. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

Emily O'Reilly

Done in Strasbourg on 4 March 2014

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[1] Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (94/262/ECSC, EC, Euratom), OJ 1994 L 113, p. 15.

[2] Point X of the Call, entitled 'Review/Appeal procedures', provides as follows: "[i]f, at any stage of this selection procedure, you consider that a mistake has been made or that EPSO has acted unfairly or has failed to comply with the rules governing this selection procedure, and that your interests have been prejudiced as a result, the following appeal procedures can be undertaken in the order mentioned in the table below: 1. Request a review either via contact page on EPSO's website or by fax [within] 10 calendar days..."

[3] "The proceedings of the Selection Board shall be secret."

[4] Point VII of the Call, entitled 'Test results'.