Defensor del Pueblo Europeo
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1. In 2005, the European Ombudsman opened his second own initiative inquiry on the issue of transparency in EU recruitment. The first such inquiry was undertaken in 1997-1999[1] and led the European Commission to introduce a number of concrete practices to enhance transparency in EU recruitment. It also resulted in a special report by the Ombudsman to the European Parliament (1999)[2].
2. In its response to the first own initiative inquiry, the Commission shared the view that, since recruitment procedures are the first and, for many applicants, the only direct contact with the Community administration, it is important that this contact be positive. The same consideration was also voiced by Parliament in its subsequent resolution on the Ombudsman's special report in 2000[3]. In the said resolution, Parliament expressed its appreciation of the Ombudsman's special report, "in particular with regard to improving the impression which citizens, as candidates in recruitment procedures, have of the European Institutions", and pointed out that "the principle of transparency must apply throughout the selection procedure". Parliament suggested, among other things, that "candidates should automatically be notified, promptly and in an appropriate form, of the evaluation criteria".
3. When EPSO began its work in 2003, it maintained the measures already introduced by the Commission, with an eye to enhancing transparency in recruitment. However, the Ombudsman continued to receive complaints from applicants concerning an alleged lack of transparency in EU recruitment procedures. Two related issues have been recurring. First, evaluation criteria formulated by selection boards for the purpose of assessing candidates remain secret. Second, the manner by which selection boards arrive at a final mark for candidates' examinations is not clear to many candidates, especially since the marks for the separate parts of their tests are also kept secret.
4. The Ombudsman took the view that the above practices appeared to be inconsistent with the European Union's commitment to a public administration guided by the principles of transparency, accountability and good administration. He therefore opened the present own-initiative inquiry, during which he and EPSO have had a constructive dialogue on the issue of openness in EU recruitment. The main correspondence between the Ombudsman and EPSO concerning this issue is available on the Ombudsman's website, and can be accessed using the following link:
http://www.ombudsman.europa.eu/initiatives/en/default.htm
5. In July 2008, the Ombudsman submitted a draft recommendation to EPSO.
6. This inquiry concerns, first, candidates' right of access to the evaluation criteria formulated by selection boards for the purpose of assessing written and oral tests; and second, the disclosure of information on how selection boards arrive at the final mark for tests, notably by providing information on the marks awarded for the separate parts of the tests. The Ombudsman's corresponding draft recommendation, made in July 2008, is set out in paragraph 13 below.
7. The relevant steps in this inquiry were the following:
8. On 10 October 2005, the Ombudsman opened the inquiry. On 25 November 2005, the Ombudsman's services visited EPSO. On 20 February 2006, the Ombudsman sent to EPSO his preliminary findings. EPSO replied on 14 June 2006. On 3 July 2007, the Ombudsman sent to EPSO a comprehensive analysis of the main issues, to which EPSO replied on 3 October 2007. On 13 March 2008, the Ombudsman conducted further inquiries, to which EPSO replied on 16 May 2008. On 22 July 2008, the Ombudsman submitted his draft recommendation to EPSO.
The object of the inquiry - access to information in EU recruitment
9. The present inquiry concerns first, candidates' right of access to the evaluation criteria formulated by selection boards for the purpose of assessing written and oral tests and second, the disclosure of information on how selection boards arrive at the final mark for tests, notably by providing information on the marks awarded for the separate parts of the tests.
10. With regard to 'evaluation criteria', the Ombudsman defined these as follows in the present inquiry[4]:
(A) general criteria, underlying the conditions laid down by the notice of competition regarding the purpose and/or the content of the test;
(B) criteria for the allocation of marks, such as the weighting of questions;
(C) criteria in the form of instructions for marking the written tests.
EPSO's position
11. EPSO informed the Ombudsman that the general criteria referred to in (A) above are not covered by the need for secrecy. They must therefore be communicated to candidates, with an eye to making them aware of all the factors on which the selection board bases its assessment and to enabling them to challenge that assessment, if necessary.
12. With regard to the criteria contained in (B) and (C), EPSO essentially put forward two arguments for not allowing disclosure:
First, EPSO outlined that the criteria under (B) and (C) referred to above have always been considered by the case-law to involve comparative assessments of the respective merits of candidates, carried out by selection boards, and, hence, covered by the secrecy of the boards' proceedings[5].
Second, EPSO referred to a number of practical or administrative considerations and concerns, notably (i) the fact that criteria (B) and (C) may be changed by the selection board before the relevant mark is reached, (ii) that information given to candidates about evaluation criteria (B) and (C) might be misleading and not correctly understood by them, and (iii) that the provision of additional information could result in an increase in the number of complaints submitted by candidates.
The Ombudsman's draft recommendation
13. On 22 July 2008, the Ombudsman made the following draft recommendation to EPSO:
"EPSO should disclose to candidates, at their request, the evaluation criteria, if any, adopted by the selection boards for written or oral tests, and should furthermore disclose to candidates, at their request, the detailed breakdown of marks, if any, awarded to them for their performance."
The Ombudsman's draft recommendation was, in summary, based on the following findings.
14. With regard to the first of EPSO's arguments mentioned above in paragraph 12, the Ombudsman repeated his previously stated conclusion that EPSO is, in principle and unless very special circumstances prevent it, legally free to disclose to candidates who so request, following receipt of their mark[6], the final versions of criteria (B) and (C). This conclusion was based on a thorough analysis of the relevant legal and administrative rules, as currently applied and understood in practice.
15. With regard to the second set of arguments, the Ombudsman concluded that they were not convincing. His detailed comments are set out in paragraph 1 of his above-mentioned letter of further inquiry to EPSO, dated 3 July 2007[7]. The Ombudsman recalled two of the main points made therein: First, he advocated disclosure of the final evaluation criteria adopted by the selection boards, not of the board's deliberations leading to the adoption of those criteria. Second, the right of access to information and documents cannot depend on the administration's assessment as to whether the recipient concerned might or might not correctly understand the information concerned.
16. With regard to the argument that the number of complaints might increase if candidates were to receive more information on the assessment of their test, the Ombudsman considered that it is not compatible with the Rule of Law to withhold information from individuals participating in an administrative procedure, in order to prevent or discourage them from exercising their right to complain against the said procedure's outcome. Furthermore, the Ombudsman had already informed EPSO of the fact that he only opens inquiries "for which he finds grounds" (Article 195(1), second paragraph, of the EC Treaty). The more information new complaints contain, the better the Ombudsman can assess whether there are in fact grounds for opening an inquiry. Conversely, lack of information, resulting from current secrecy practices, will normally lead to an inquiry being opened to allow the Ombudsman fairly to assess the matter[8]. Therefore, even if EPSO's argument regarding the number of complaints were to be correct, better information to candidates would probably lead to fewer inquiries by the Ombudsman. Such inquiries involve a great deal of staff time for both EPSO and the Ombudsman. Concern for the efficient use of Community budgetary resources should thus lead EPSO to seek to minimise the number of such inquires by providing more and better information to candidates.
17. In addition to the above, the Ombudsman emphasised to EPSO that the needs for greater openness in recruitment procedures are much more wide-ranging than a general agenda for transparency, however important the latter may be. Such needs include important specific concerns regarding legal protection, equality, proportionality and the Community's interest in recruiting officials of the highest standard of ability, efficiency and integrity[9]. In his analysis, the Ombudsman pointed out, in particular, what, in his view, is a discrepancy between the purpose of the relevant secrecy provision contained in the Staff Regulations and the secrecy practices maintained by EPSO.
18. The secrecy provision in the Staff Regulations provides that "[t]he proceedings of the Selection Board shall be secret". The case-law has confirmed that this secrecy provision was introduced with a view to guaranteeing the independence of selection boards and the objectivity of their proceedings[10]. The Ombudsman emphasised that he fully shared EPSO's view on how these important aims should be achieved. However, he had not received any convincing arguments to demonstrate how the boards' 'independence' or the 'objectivity of [their] proceedings' would be adversely affected by the disclosure, to applicants, of the final evaluation criteria adopted by the boards, or of information on the detailed breakdown of marks. Such disclosure would neither enable candidates to exercise an influence over the work of the boards nor prevent the boards from working in an objective manner.
19. In addition to the above findings, the Ombudsman noted that, at the time of his draft recommendation, EPSO was in the process of formulating a proposal for thorough reform of EU recruitment practices (EPSO Development Programme). The Ombudsman pointed out that that the aims of this reform provided an excellent opportunity for eliminating the secrecy practices that he had addressed in his draft recommendation.
EPSO's opinion on the Ombudsman's draft recommendation
20. In its opinion of 2 December 2008, EPSO made the following comments (detailed in paragraphs 21-24 below).
21. EPSO emphasised that it considers openness in EU recruitment extremely important, and that the EPSO Management Board has approved several of its proposed changes relating to this issue. These changes should be effective as from 2010, in the context of the EPSO Development Programme.
22. EPSO also explained that, although it could not give additional information to applicants who have participated in competitions already held, it is fully aware of the openness requirements in the field of recruitment and is sensitive to the arguments set out in the Ombudsman's draft recommendation.
23. Hence, in future recruitment competitions, EPSO will propose to the selection boards that, in the case of written tests, they use a model evaluation sheet which contains (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), but which and (b) in addition to the global mark, the partial marks awarded by the board for each criterion specified in the notice of competition. This new evaluation sheet will be obtainable, upon request, by applicants who failed the written tests or who were not invited to an interview.
24. With regard to the oral tests, EPSO intends to introduce a similar rule for all future competitions. That is to say, all applicants who have failed the oral test (the interview), or who no longer feature on the reserve list will be free to request access to the breakdown of their marks for that test, in addition to the global mark that they will have already received.
The Ombudsman's assessment after his draft recommendation
25. The Ombudsman is delighted by EPSO's response to his draft recommendation. In the first place, the response contains an acceptance of the specific measures recommended by the Ombudsman, with an eye to benefiting applicants participating in future recruitment competitions. Together with openness practices that EPSO has previously implemented, these new measures should make a considerable contribution to the applicants' and the public's trust in the professionalism and objectivity underpinning EU recruitment.
26. In addition, EPSO's response constitutes tangible evidence of an important change in administrative culture. The specific measures announced in response to the Ombudsman's draft recommendation are closely linked with EPSO's overall aim to professionalise and modernise EU recruitment practices. The Ombudsman strongly welcomes EPSO's recognition of the interaction and inter-dependence between the technical improvements to the recruitment procedures and the requirements of openness.
27. The long-term importance of this change of culture cannot be underestimated. The effects of modernising recruitment practices will rarely confine themselves to those practices, but will spill-over to employment relations within the Administration. As these improve, the scope for procuring good administration in general will equally be enhanced.
28. It goes without saying that the Ombudsman is strongly committed to the successful implementation of the specific measures announced by EPSO in this case, as well as the above-mentioned Development Programme.
On the basis of his inquiries, the Ombudsman concludes that EPSO has taken the appropriate measures to implement his draft recommendation.
P. Nikiforos DIAMANDOUROS
Done in Strasbourg on 16 December 2008
[1] See the Ombudsman's Homepage: http://www.ombudsman.europa.eu/recommen/en/971004.htm
[2] See the Ombudsman's Homepage: http://www.ombudsman.europa.eu/special/pdf/en/971004.pdf
[3] European Parliament resolution on the special report from the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedures (C5-0082/2000 - 2000/2048 (COS)).
[4] The detailed description of these evaluation criteria is set out in the Ombudsman's letter of further inquiry to EPSO dated 3 July 2007 (http://www.ombudsman.europa.eu/initiatives/en/default.htm).
[5] EPSO essentially refers to Case C-254/95 P Parliament v Innamorati [1996] ECR I-03423.
[6] The Ombudsman's full analysis is set out in point 2 of his letter of further inquiry to EPSO of 3 July 2007 (http://www.ombudsman.europa.eu/initiatives/en/default.htm).
[7] http://www.ombudsman.europa.eu/initiatives/en/default.htm.
[8] It goes without saying that an inspection of the file by the Ombudsman can only exceptionally remedy this information deficiency, since the information concerned will have to be examined in light of the specific allegations and arguments submitted by the complainant.
[9] See point 3 in the Ombudsman's letter of further inquiry to EPSO of 3 July 2007 (http://www.ombudsman.europa.eu/initiatives/en/default.htm).
[10] Case C-254/95 P Parliament v Innamorati [1996] ECR I-03423, paragraph 24.
