The background to the complaint

1. The complainant took part in Open Competition EPSO/AD/190/10 MT. The European Personnel Selection Office (EPSO) organised this competition in order to draw up a reserve list from which to recruit Heads of Unit in the field of translation having Maltese as their main language.

2. The complainant fulfilled the general conditions for admission to the competition and was invited to sit for the written tests. According to the Notice of Competition, there were to be two written tests, namely, test a), which consisted of a written assessment of the quality of a text translated into the candidates' main language from their first source language and test b) which consisted of a written assessment of the quality of a text translated into the candidates' main language from their second source language. Written test b) was marked only for those candidates who obtained a pass mark in written test a).

3. On 18 August 2011, EPSO informed the complainant that he had not obtained the pass mark in written test a). EPSO indicated that he had only scored 12 points out of 30, while the pass mark was 15 points. Thus, his written test b) was not marked.

4. On 20 September 2011, the complainant asked EPSO to provide him with the markers' "detailed evaluation" of his written test a).

5. On 22 September 2011, EPSO provided the complainant with a copy of his unmarked test paper a) and of the evaluation sheet.

6. On 27 September 2011, the complainant again wrote to EPSO on the matter. He stated that EPSO wrongly refused to provide him with the "breakdown of the mistakes" the markers claimed that he had made.

7. On 11 October 2011, EPSO replied to the complainant's above-mentioned letter and maintained its assessment as regards the complainant's written test a). In this respect, EPSO considered that "while the complainant spotted a number of mistakes, he also highlighted a number of non-errors". Thus, EPSO could not increase the complainant's mark for written test a).

8. On 11 October 2011, the complainant turned to the European Ombudsman.

The subject matter of the inquiry

9. In his complaint to the Ombudsman, the complainant alleged that EPSO wrongly assessed his written test a) and failed to provide him with a detailed explanation of the errors identified in that test.

10. In his observations, the complainant submitted the following new allegation.

EPSO failed properly to assess the candidates' language skills and professional qualifications before they sat for the written tests.

11. In relation to the complainant's new allegation, the Ombudsman underlines that, in his letter opening the inquiry into the present complaint, he had already informed the complainant that there are insufficient grounds to include it in his inquiry because the complainant did not furnish enough supporting evidence. In this respect, the Ombudsman noted that, according to the Notice of Competition, the Selection Board had to check the candidates' language skills and professional qualifications before their admission to the written tests. The complainant did not submit evidence to show that the Selection Board failed to comply with the above rule. Having considered the complainant's observations on the opinion, the Ombudsman does not see any reason, which could make him change his initial position on this matter.

The inquiry

12. With the aim of rapidly finding a satisfactory outcome to the present complaint, the Ombudsman opened a simplified procedure on 26 October 2011. His services contacted EPSO's services and asked whether EPSO could provide the complainant with more information regarding the errors and weaknesses identified in his written test a).

13. On 8 November 2011, EPSO forwarded to the Ombudsman's services a copy of the reply that had been sent to the complainant on the same day.

14. The Ombudsman invited the complainant to submit observations on EPSO's above reply. The complainant sent his observations that same day.

15. After a thorough examination of the reply provided by EPSO and of the complainant's observations on that reply, the Ombudsman decided to continue his inquiry and asked EPSO to provide an opinion on the complainant's allegation by 29 February 2012. In addition, he asked EPSO to clarify some aspects of the case[1]. Finally, the Ombudsman requested EPSO[2] (i) to provide a copy of the markers' assessment of the complainant's written test a), (ii) to provide a copy of the Selection Board's final evaluation of his written test a), and (iii) to indicate if these documents are confidential. Subsequently, EPSO sent the opinion together with two documents containing the markers' assessment. Given that EPSO indicated that the markers' assessments of the complainant's written test are confidential, the Ombudsman did not make them available to the complainant, in accordance with Article 13.3 of the Ombudsman's Implementing Provisions. He thus only forwarded the opinion to the complainant and invited him to submit observations on it.

16. The complainant sent his observations on 6 March 2012.

17. On 22 June 2012, the Ombudsman made a friendly solution proposal to EPSO, in accordance with Article 3(5) of his Statute.

18. EPSO's reply to the friendly solution proposal was sent to the complainant with an invitation to submit observations. The complainant sent his observations on 6 September 2012.

The Ombudsman's analysis and conclusions

A. Alleged failure to provide a detailed explanation as regards the assessment of the complainant's written test

Arguments presented to the Ombudsman

19. In his complaint to the Ombudsman, the complainant argued that EPSO failed to provide him with a detailed explanation of his errors. In this respect, EPSO only stated that "while the complainant spotted a number of mistakes, he also highlighted a number of non-errors".

20. In its further reply to the complainant, following the Ombudsman's simplified procedure, EPSO explained that it could not provide the complainant with "any other explanation than the one already in his possession". It went on to state that, as a candidate in an EPSO competition, the complainant has "certain" privileged rights of access to information that concerns him personally. However, these rights have to be seen in the framework of the Selection Board's obligation to state the grounds on which its decisions are based in order to allow for any possible review. The obligation to state reasons must be reconciled with the observance of secrecy, since in accordance with Article 6 of Annex III to the Staff Regulations, the proceedings of selection boards are secret. Therefore, the observance of secrecy "runs counter to divulging the attitudes adopted by individual members of selection boards and also to revealing all the factors relating to the individual or comparative assessment of candidates (including corrections). Moreover, given the discretion, which the selection board enjoys when evaluating the test results, it is not required to clarify answers considered to be insufficient or to explain why these answers were considered so". EPSO recalled that, according to EU case-law, the communication of marks obtained constitutes a sufficient statement of reasons for decisions of selection boards. EPSO, therefore, reiterated its decision "not to give [the complainant] access to a copy of [his] marked test".

21. In his observations on EPSO's above reply, the complainant pointed out that EPSO only reiterated its original reply to his request for review. Moreover, in his view, "the whole process of the competition ... was dubious". As a result, he asked the Ombudsman to continue his inquiry in this respect.

22. In its opinion on the complaint, EPSO stated that written test a) was defined in the competition notice as "[l]inguistic and quality assessment (register, style, syntax, grammar, terminology, meaning, punctuation, omissions, etc.), without a dictionary, of one or more general texts translated into the main language from the first source language to test the candidate's ability to assess the quality of a translated text." This assessment had to be produced in the first source language, which, in the complainant's case, was English. The test was to be marked out of 30 and the pass mark was 15. Since the complainant did not obtain the required pass mark, his written test b) was not marked and his participation in Open Competition EPSO/AD/190/10 was brought to an end.

23. In line with point 6.1.2.1 of the Guide to open competitions[3], EPSO sent the complainant a copy of his unmarked test paper together with a copy of the individual evaluation sheet drawn up by the Selection Board. The individual evaluation sheet contained the criteria on which the assessment of the candidate's performance was based (namely, the ability to spot errors and indicate to which categories they belong; the candidate's linguistic and quality assessment of the translated text written in the first source language), the final mark given by the Selection Board and the latter's formal assessment of the candidate's test.

24. As regards the assessment of the complainant's written test a), EPSO first explained that this was carried out solely by the Selection Board, which was assisted by "examiners" (markers), as permitted by Article 3 of Annex III to the Staff Regulations. The complainant's written test a) was marked by two markers on the basis of a marking grid established by the Selection Board prior to the written tests. The Selection Board decided on a final mark to be awarded to the candidate on the basis of the assessments made by the two markers. Therefore, EPSO considered that the complainant's written test was assessed in accordance with the rules governing the procedure.

25. EPSO further reiterated that selection boards enjoy wide discretion over the detailed content of the test, the assessment methods, as well as the choice of correction methods and the establishment of the scoring criteria prior to the tests[4]. EPSO went on to add that it cannot interfere with the work of selection boards due to their independence[5].

26. In light of the existing case-law with regard to the obligation to state reasons[6], the complainant received all the necessary information for him to determine whether or not the decision was well-founded. The content of the information contained in the reply to his request for review, namely, that the complainant had spotted a number of mistakes but also highlighted a number of non-errors, was the result of a complex reflection process, designed to reconcile the secrecy of the Selection Board's proceedings with the requirements of transparency and went beyond the strict interpretation of the obligation to state reasons as defined by case-law in the framework of open competitions.

27. EPSO failed to see how providing the complainant with more details as to the errors and non-errors identified in his test might be relevant for him. EPSO pointed out that, if the complainant wishes to "learn" from his mistakes, it is not the Selection Board's or EPSO's responsibility "to point out the specific errors in order for candidates to improve their performances in future, contrary to school examinations for instance". Moreover, every competition is different and every selection board is free to decide on the content of and the marking grid (that is, the correction criteria) for each and every written test. Thus, the errors or non-errors highlighted might not have the same impact in other tests.

28. If the purpose of the complainant's request was to contest the marking or the correction criteria, EPSO again referred to the wide margin of discretion enjoyed by the Selection Board in deciding on the content of a test and on how the test will be marked. It is only possible to contest one of these aspects in case the content of the test is not in line with the purpose as defined in the competition notice or if the marking method established does not guarantee equal treatment. In EPSO's view, the content of the test was fully in line with the competition notice and the markers used the same marking grid, which had been established by the Selection Board prior to the written tests, to mark the tests.

29. EPSO further noted that a competition is "not an occasion where one can discuss which criteria are appropriate for the evaluation, but rather a test to find out which of the candidates best meet the requirements laid down in the notice of competition, regardless of the self-assessment or expectations of the candidates". The result of the marking of the written test is therefore only "a reflection of whether and how the candidate's answers meet each criterion of a marking grid designed in advance that applies equally to all candidates; hence it is a value judgment regarding candidates' performances in the test".

30. EPSO also pointed out that "the requested information is part of the correction criteria used to enable the marks to be determined. This aspect is fully covered by the secrecy surrounding the proceedings of the Selection Board".

31. In light of the above, EPSO concluded that it cannot provide the complainant with examples of mistakes identified by him in his written test a) and of the non-errors identified by him as errors in the same test.

32. In his observations on EPSO's reply referred to above, the complainant again contested the markers' assessment of his written test a). He stated that he had revised his test again and, irrespective of EPSO's view, the non-errors were in fact errors, which had to be indicated as such by successful candidates. The complainant further argued that, if the two markers were members of the Selection Board, then they were not suitable for the task, as none of them was an expert in Maltese. However, if expert markers were involved, then he would withdraw this part of his complaint. The complainant concluded that EPSO failed to scrutinise properly the way in which markers were chosen for the competition in question.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

33. The complainant put forward a twofold allegation, arguing that EPSO (i) wrongly assessed his written test and (ii) failed properly to reason its decision.

Argument (i) alleging a wrong assessment

34. In relation to the complainant's argument under point (i) above, the Ombudsman noted that, as EPSO rightly pointed out, according to established case-law of the Court of Justice of the EU, Selection Boards enjoys a wide discretion in assessing and scoring candidates' performance in a given competition.

35. In this regard, the Ombudsman's review was thus limited to ascertaining whether the Selection Board's judgment was vitiated by a manifest error of assessment.

36. On the basis of the evidence submitted in the course of the present inquiry, including the confidential document submitted to him by EPSO and relating to the markers' assessment of the complainant's written test a), the Ombudsman considered that it could not be concluded that the Selection Board's assessment of the complainant's written test a) was tainted by a manifest error. The Selection Board remained within the bounds of the discretion that it enjoys when it decided to score the complainant's written test a) below the pass mark. Moreover, the complainant did not submit evidence that calls into question the competence of the markers involved in the correction of his written test a). In these circumstances, the Ombudsman considered that no further inquiries are justified into this aspect of the complainant's allegation.

Argument (ii) on the statement of reasons

37. In this respect, the Ombudsman first noted that, in its opinion, EPSO challenged the complainant's rationale underpinning the request for information on his errors. The Ombudsman found this regrettable.

38. He pointed out that it is reasonable for a candidate in a competition who invested considerable efforts in preparing for it to have an interest in knowing which errors he/she has committed. This interest is independent of the question whether or not the candidate decides to challenge his/her marks. However, by considering from the outset that a candidate's sole purpose in requesting such information is to challenge the marks, EPSO is merely reinforcing the candidate's conviction that the assessment was wrong and that the marks must be challenged.

39. The Ombudsman considered that only the candidate concerned must assess the relevance of requesting details about the errors and non-errors identified in his written test. It is surely not for EPSO, before disclosing the requested information, to question the underlying reasons for such a request or whether it is reasonable to request the information. EPSO could have thus rejected the complainant's request on duly substantiated grounds but it should not have questioned why the complainant asked for the information. Finally, pointing out in its opinion that it is not EPSO's responsibility to indicate "specific errors in order for candidates to improve their performances in future, contrary to school examinations" (emphasis added), is not a convincing or valid argument.

40. Nevertheless, the Ombudsman agreed with EPSO that the Selection Board in the present case complied with its legal obligation to justify its decision by providing the complainant with the mark obtained in the written tests and with his unmarked examination papers. This was so because the EU courts have held[7], as far as decisions taken by selection boards are concerned, that, the need to observe the secrecy surrounding the proceedings of selection boards, in accordance with Article 6 of Annex III to the Staff Regulations, must be reconciled with the obligation to state reasons. In this respect, as EPSO rightly pointed out, case-law provides that the communication of copies of the examination papers and of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board's decisions are based.

41. In addition to this legal obligation, EPSO should, however, also comply with its own public commitments made in the framework of the Ombudsman's own-initiative inquiry OII/05/2005/PB[8]. In reply to the Ombudsman's above-mentioned own-initiative inquiry, EPSO made a commitment to use a model evaluation sheet which contains, on the one hand, (a) the evaluation criteria set out in the published notices of competition (including the various elements eventually evaluated by the board for each criterion) and the level of performance attained (ranging from excellent to insufficient), and, on the other, (b) in addition to the global mark, the partial marks awarded by the board for each criterion specified in the notice of competition.

42. Taking into account EPSO's commitment outlined above, the Ombudsman examined the evaluation sheet, which EPSO provided to the complainant.

43. He first noted that this evaluation sheet mentions two criteria by means of which the Selection Board intended to assess the complainant's performance, namely, "a) ability to spot the errors and indicate to which categories the errors belong, b) the linguistic and quality assessment of the translated text written in the first source language". However, as EPSO itself pointed out (see paragraph 22 above) the competition notice contained more detailed criteria relating to general criterion b), namely, "register, style, syntax, grammar, terminology, meaning, punctuation, omissions".

44. In addition, the Ombudsman noted that the evaluation sheet does not contain partial marks for criterion a) and criterion b), but only the global mark.

45. After having examined two confidential documents which EPSO submitted together with the opinion, namely, the markers' assessment papers, the Ombudsman concluded that he could accept that the evaluation sheet in the present case did not contain the detailed criteria (as listed in the Notice of competition) but only the more general ones. This was so because the evaluation sheet was based on the markers' corrections. The criteria identified by the markers in their assessment papers were the same as those included in the subsequent evaluation sheet.

46. However, the two confidential documents in question contained partial marks for criterion a) and criterion b), while the evaluation sheet did not. In its opinion, EPSO did not explain what prevented the Selection Board from indicating partial marks for criterion a) and criterion b) on the evaluation sheet, and thus from rendering the evaluation sheet in question compliant with EPSO's commitment referred to above.

47. The Ombudsman took the view that, although the evaluation sheet could not include references to more detailed criteria than those used by the markers in their relevant correction document, he could not see what prevented the Selection Board from indicating partial marks on the evaluation sheet in relation to each criterion identified by the markers.

48. In light of the above, the Ombudsman made the preliminary finding that EPSO failed to indicate partial marks for criterion a) and criterion b) in the evaluation sheet, in accordance with the commitment it made in the framework of the Ombudsman's own-initiative inquiry OII/05/2005/PB. He stated that this could amount to an instance of maladministration. The Ombudsman therefore made the following proposal for a friendly solution, in accordance with Article 3(5) of the Statute of the European Ombudsman.

EPSO could provide the complainant with partial marks for each criterion specified in the evaluation sheet, in accordance with the commitment it made in the framework of the Ombudsman's own initiative inquiry OII/05/2005/PB.

The arguments presented to the Ombudsman after his friendly solution proposal

49. EPSO rejected the Ombudsman's proposal for a friendly solution. It explained that the Selection Board decided to indicate in the evaluation sheet the marking criteria it had previously established for the markers. However, it did not indicate the partial points for these criteria, as the Notice of Competition did not explicitly provide for this.

50. EPSO added that "[s]ince the Selection Board decided not to attribute final partial marks but only a global final mark, EPSO is unable to communicate partial marks to the complainant as these are not necessarily the mathematical average of the sub-marks given by the correctors."

51. EPSO reiterated that the Selection Board's decision was taken within the limits of its discretionary powers, as established by case-law. In this respect, it stated that "selection boards enjoy a wide discretion concerning the methods and the detailed contents of the tests, as well as their assessment." That discretion also extends to the choice of correction methods and the determination of the scoring criteria prior to the tests.

52. Moreover, the Selection Board's decision concerning the competition under scrutiny also complied with the provisions of the Notice of Competition, which did not require the board to award distinct partial marks for each assessment criterion. EPSO is under the obligation to respect the independence of the Selection Board and the limits set by case-law, and cannot interfere in the board's decision.

53. EPSO stated that it stood by the spirit of the commitment it made in the framework of the Ombudsman's own-initiative inquiry OII/05/2005/PB. However, the obligation to propose an evaluation sheet setting out the partial marks awarded for particular assessment criteria can only be of relevance in cases where the Selection Board has decided to award such partial marks, and where it is legal for the selection board to do so. EPSO would not encourage the Selection Boards to award partial marks in cases where an obligation to do so does not stem directly from the Notice of Competition, or where it can reasonably be deemed to be incompatible or inappropriate with regard to the test in question.

54. In his observations, the complainant reiterated that EPSO's explanation as regards the assessment of his written test was insufficient. He emphasised that he would like to pursue his complaint, if "there are other are means to put pressure on EPSO to clarify the matter".

The Ombudsman's assessment after his friendly solution proposal

55. The Ombudsman regrets that EPSO rejected his proposal for a friendly solution. In addition, he considers that EPSO failed to provide convincing justifications for its refusal to indicate partial marks for criterion a) and criterion b) in the evaluation sheet.

56. First, the Ombudsman notes that the fact that the Notice of Competition did not require the Selection Board to award distinct partial marks for each assessment criterion does not mean that it was prevented from doing so. The sense of the commitment EPSO made to the Ombudsman in the framework of own-initiative inquiry OII/5/2005/PB was indeed that it would encourage Selection Boards to break down points in this way because doing so corresponds to good administration and serves the purpose of duly informing candidates. Saying now that it will not do so except if foreseen in the Notice of Competition constitutes a disingenuous way of avoiding its previous commitments.

57. Second, the Ombudsman understands that the markers awarded partial marks in the marking grids because the Selection Board required them to do so. EPSO did not explain why the Selection Board first required the markers to award partial marks and then did not indicate partial marks for each criterion in the final evaluation sheets provided to candidates.

58. Third, EPSO's explanation that it "is unable communicate partial marks to the complainant as these are not necessarily the mathematical average of the sub-marks given by the correctors" is confusing. If EPSO wished to convey to the Ombudsman that, in the present case, partial marks ("sub-marks") awarded by the markers were then changed by the Selection Board and this was the reason why the Selection Board decided not to indicate them on the evaluation sheet at all but only to refer to the global mark, such a hypothesis is worrying in the circumstances of the present case. Indeed, according to the complainant, the members of the Selection Board had no knowledge of Maltese, while it is hoped that the markers of a test which required candidates to assess the quality of a text translated from English to Maltese did have such knowledge. The Ombudsman will not however pursue this matter further because, after having examined the confidential documents, he notes that the global mark indeed corresponded to the average of the marks given by the markers.

59. In light of the foregoing, the Ombudsman is of the view that EPSO failed to provide adequate reasons[9] why the evaluation sheet in question did not contain partial marks. Moreover, an evaluation sheet without partial marks does not provide candidates with sufficiently useful information concerning their errors. In sum, EPSO committed an instance of maladministration.

60. Since the Ombudsman considers that the Selection Board remained within the bounds of its discretion when it decided to score the complainant's written test a) below the pass mark (see paragraph 36), he has decided not to issue a draft recommendation but will close the case with a critical remark.

B. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following critical remark:

By failing to provide the candidate concerned with an evaluation sheet indicating the breakdown of marks in relation to each evaluation criterion, or to justify properly why it could not do so, EPSO committed an instance of maladministration. The Ombudsman points out that, in the framework of the Ombudsman's own-initiative inquiry OII/5/2005/PB, EPSO committed itself to provide candidates in future competitions with such information.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 11 December 2012

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[1] The Ombudsman asked EPSO to refer specifically to the commitments it made in the framework of his Own-Initiative Inquiry OII/05/2005/PB that it would use a model evaluation sheet which contains (a) both the evaluation criteria set out in the published notices of competition (including the various elements eventually evaluated by the board for each criterion) and the level of performance attained (ranging from excellent to insufficient), and (b) in addition to the global mark, the partial marks awarded by the board for each criterion specified in the notice of competition. The Ombudsman also requested EPSO to provide examples of (a) the mistakes identified by the complainant in his written test a), and (b) the non-errors identified by him as errors in the same test.

[2] Pursuant to Article 3(2) of the Statute of the European Ombudsman and Article 5.2 of the Decision of the European Ombudsman adopting Implementing Provisions.

[3] Point 6.1.2.1 of the Guide to open competitions reads as follows: "If you do not pass the written tests and/or if you are not one of the candidates invited to the oral test, you can request a copy of your original tests and a copy of the individual evaluation sheet drawn up by the selection board. If you abandon a test, your written tests will not be marked". In its opinion, EPSO clarified that "[t]he Guide to open competitions was published on 8 July 2010 in Official Journal C 184 A, however for the competition at hand the points 4, 5.2, 5.3 and 6.1.2 of the Guide were replaced by the text in annex to the notice".

[4] Cases T-19/03, Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraphs 48 and 60; T-267/03, Roccato v Commission [2005] ECR-SC I-A-1 and II-1, paragraphs 48-49.

[5] Case T-306/04, Luxembourg v Commission [2005] ECR-SC I-A-263 and II-1209, paragraphs 22-24.

[6] EPSO referred to cases F-73/06 Van Neyghem v Commission, judgment of 13 December 2007, not yet published in the ECR, paragraph 77 and T-19/03 Konstantopoulou v Court of Justice [2004] ECR-SC I-A-25 and II-107, paragraph 22, according to which, providing candidates with a copy of the tests as they drafted it, albeit without corrections, together with the communication of the marks, constitutes a sufficient statement of reasons for decisions of selection boards and enables the Union courts to carry out a judicial review appropriate to disputes of that kind. It is not required to clarify the answers of candidates considered to be insufficient or to explain why these answers were considered insufficient.

[7] See to that effect Case T-233/02 Alexandratos and Panagiotou v Council [2003] ECR-SC I-A-201 and II‑989, paragraphs 24-27; Case T-105/08 P Van Neyghem v Commission, order of 24 September 2008, not yet published in the ECR, paragraphs 34-35.

[8] The Ombudsman's decision is available on his website.

[9] The Ombudsman points out that the importance of providing reasons for decisions is recognised throughout EU administrative law (Article 296 of the Treaty on the Functioning of the European Union, Article 41(2)(c) of the Charter of Fundamental Rights of the European Union, Article 18 of the European Code of Good Administrative Behaviour, and Section 3 of the European Commission's Code of Good Administrative Behaviour). As the Court of Justice has held, a statement of reasons should show, clearly and unequivocally, the reasoning of the institution which adopted the measure so as to inform the persons concerned of the justification for the measure adopted, thereby enabling a review of those measures.