Mediatore Europeo
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1. Since 2003 when it became operational, EPSO has been organising open competitions to recruit officials for the European institutions[1]. Until 2005, the examinations for these competitions consisted of (a) pre-selection tests and written tests, both of which were on paper, and (b) oral tests. As regards the pre-selection tests, candidates were authorised to take the question papers from the examination room and could, upon request, receive information concerning which questions they had answered correctly or incorrectly.
2. In 2005, EPSO's Management Board (composed of one representative from every institution and three representatives from the institutions' staff as observers) decided that the written tests (competency tests) should be preceded by multiple choice computer based tests ('CBT'). It was decided that each candidate would take the CBT in an examination centre on a date chosen by him/her within a previously specified period of time. EPSO entered into a contract with the operator of a CBT system, which was selected through an open tender ('the contractor') and undertook to prepare and deliver the CBT, along with the relevant tools and support services.
3. During 2006 and 2007, the Ombudsman opened a number of inquiries into individual complaints (370/2007/MHZ, 2244/2006/MHZ, 3819/2006/DK, 7/2007/PB ('the inquiries on individual complaints'), which were all submitted by unsuccessful candidates in the CBT. The subject of their complaints was EPSO's refusal to give them access to the test questions, their own answers, as well as the correct answers.
4. In his decisions on complaints 2244/2006/MHZ and 370/2007/MHZ, the Ombudsman concluded that EPSO's refusal to provide the complainants with their CBT questions/answers constituted an instance of maladministration, since EPSO had failed to provide adequate justifications for doing so. He closed case 370/2007/MHZ with a critical remark[2]. In his other decisions concerning the same issue, the Ombudsman decided that no further inquiries were justified because he intended to open an own-initiative inquiry into this matter.
5. The Ombudsman understood that the CBT was a new system of testing candidates and that EPSO was still evaluating its functioning on the basis of the experience gathered from the initial period of its regular use within the framework of open competitions and other selection procedures.
6. Article 195 of the Treaty establishing the European Community empowers the European Ombudsman to conduct inquiries on his own initiative in relation to possible instances of maladministration in the activities of Community institutions and bodies. The Ombudsman decided therefore to open the present own initiative inquiry to provide EPSO with an opportunity to (i) reflect on its stance regarding access to the CBT questions/answers and (ii) present its evaluation regarding the advantages of the current CBT system, both for the efficient administration of competition procedures and also for the candidates themselves.
7. The Ombudsman specifically asked EPSO to:
8. In the context of (2) above, he also asked EPSO to refer to the role of selection boards within the CBT tests, by reminding EPSO that the selections boards have a duty to exercise control over the competition procedures and in particular to check whether the above principle of equal treatment is ensured.
9. On 19 March 2008, EPSO submitted an opinion to the Ombudsman's inquiry.
10. The Ombudsman asked EPSO to express its views regarding its refusal to grant candidates access to the CBT questions/answers (the subject of the inquiries on the individual complaints).
The points made by the Ombudsman in his letter opening the inquiry
11. The Ombudsman first referred to his special report of 18 October 1999 concerning the secrecy that formed part of the Commission's recruitment procedures ('the Report on secrecy'), and pointed out that, following this special report, both the Commission and EPSO accepted that candidates may, upon request, receive a copy of their test papers.
12. EPSO's present refusals seem therefore to negate an established right of candidates to obtain, upon request, a copy of their test papers. It also seems to contradict EPSO's established practice of making available to candidates the questions put to them during the pre-selection and written tests and also of informing candidates about which questions they answered correctly or incorrectly.
13. Moreover, the Ombudsman recalled his conclusions in the decisions on complaints 2244/32006/MHZ and 370/2007/MHZ, namely, that EPSO's refusal to provide the complainants with their CBT questions/answers constituted an instance of maladministration, since EPSO failed to provide adequate justifications for such refusal.
The arguments submitted by EPSO in its reply
14. EPSO pointed out that there is a pending case before the Civil Service Tribunal[4] concerning the disclosure of the CBT questions and challenging EPSO's refusal to do so on the basis of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents ('Regulation 1049/2001')[5].
15. EPSO described in detail the database of CBT questions and referred to a new body (the Advisory Board on Quality Control of Test Items), created to ensure the accuracy of CBT questions. According to EPSO, the questions in the database are first divided into the following four groups: (i) numerical reasoning questions; (ii) verbal reasoning questions (iii) general knowledge questions on EU matters, and (iv) questions for the CAST competence tests. Each group is then subdivided into five subgroups according to the level of difficulty of questions[6]. There are several thousand questions in total and their level of difficulty is related to the level of the posts for which candidates apply. The questions for administrators are therefore not put to candidates applying for assistant posts. The same number of identical questions for each group and subgroup exists in each of the three languages used in the CBT tests (English, German and French). The database contains more numerical and verbal reasoning questions than general knowledge questions on EU matters.
16. A growing number of examples from the aforementioned tests concerning general knowledge of EU matters and numerical and verbal reasoning questions are now published on EPSO's website to aid prospective candidates. However, once these questions are published, they are immediately deleted from the CBT database.
17. EPSO referred in this context to the Ombudsman's special report of 18 October 1999 and to his remark on EPSO's established practice of disclosing such information to candidates on request. It pointed out that the "CBT constitutes a new context in which the old practice may be only applied mutatis mutandis."
18. EPSO stated that, if they so wish, candidates can indeed receive an information sheet concerning their CBT performance. That information sheet contains the following data: the question numbers (from 1 to 20), the answers given by the candidate for each question (A, B, C or D), the corresponding correct answer for that question (A, B, C or D) and the time which the candidate needed to answer each question.
19. More detailed information cannot be given to candidates because the same questions need to be used again for the same and other competitions. Their content cannot therefore be revealed. However, if the European courts need to "exercise their control over a question which is challenged by a candidate, [they] may have access to such question."
20. EPSO also referred to the "non official" publication of questions, which are made available under commercial terms and through internet fora, in which candidates who took part in the CBT, exchange the questions which they are able to remember. EPSO concluded that if it had "officially" agreed to give individual candidates access to the questions, there would have been many more leaks.
21. Moreover, EPSO pointed to the very high number of candidates who sit the CBT tests but choose not to take part in the further stages of competitions. It concluded that, if all these candidates were to receive access to the questions and answers, the database content would run out very quickly.
22. Replacing questions on verbal and numerical reasoning by new ones is expensive because they are furnished by an external service provider (in contrast, the questions on EU matters are provided by the institutions). Several thousand CBT questions alone were used in competitions to select staff for the European anti-Fraud Office (OLAF) and the Office for Harmonisation in the Internal Market (OHMI). Given that the replacement of each verbal and numerical reasoning question costs several hundred Euro, the cost of replacement is very high.
23. Apart from this financial argument, EPSO stated that an internal control of the linguistic terms of questions must also take place. This involves a considerable amount of time and may delay the regular launching of competitions.
24. If candidates were to know the content of the questions in advance, those who are better able to memorise them (and would therefore be more likely to succeed in the CBT tests) would end up being selected, instead of those who possess the best abilities for the posts concerned.
25. EPSO concluded by listing the following disadvantages of the previous paper tests when compared to the CBT: (i) the loss of Community funds, due to the costs of renting huge examination centres in which, very often, candidates who had registered did not actually show-up for the tests or indeed just sat the tests in order to know what they were about; (ii) "frauds" and "leaks" of questions were easy.
26. According to a survey EPSO conducted, 95 % of the candidates in the CBT are satisfied with them. Moreover, only 0.65 % of all CBT questions had to be annulled in 2006 and 2007 due to their lack of accuracy and this small number is diminishing even further. The quality of CBT questions is therefore higher than the questions in the traditional paper tests. Since the CBT was introduced, no leaks of questions have been reported.
The Ombudsman's assessment
27. In its reply to the own initiative inquiry, EPSO did not clarify nor complement the arguments it used within the inquiries on the individual complaints to support its view why CBT questions/answers cannot be disclosed. In the framework of those inquiries, EPSO invoked Regulation 1049/2001 and the relevant case-law of the Community courts. EPSO also based its reasoning on the provision relating to the secrecy of selection board proceedings, set out in Article 6 of Annex III of the Staff Regulations, which, it argued, constituted a lex specialis derogating from the general rules on access to documents[7].
28. In this respect, the Ombudsman points out that that there are, at present, three cases pending before the European Courts, challenging EPSO's refusal to give access to the CBT questions. These are:
29. Since the issue of legal principle in question is now before the Community courts, the Ombudsman considers that continuing the present own-initiative inquiry in relation to this aspect is not justified. For that reason, he closes this aspect of his own-initiative inquiry. He underlines, however, that, pending the judgments of the Community courts, he considers his critical remark in case 370/2007/MHZ to be still justified.
30. Nevertheless, the Ombudsman notes that EPSO's put forward new arguments in its reply to the own initiative inquiry, which revolve around the administrative and financial difficulties likely to arise if it gave candidates access to the CBT questions and answers, because such access would seriously damage the CBT examination system as such. In this respect, the Ombudsman finds it useful to share with EPSO his considerations on these new arguments. The Ombudsman will do so under the following headings below: (i) European principles on transparency; (ii) Can the publication/disclosure of the CBT questions/answers jeopardise the efficiency, rigour or fairness of the selection process? (iii) What does the CBT information sheet disclosed by EPSO mean in fact? These considerations do not affect, however, the Ombudsman's decision to close the present own initiative inquiry, as stated in paragraph 30 above.
European principles on transparency
31. The Ombudsman welcomes all efforts designed to identify techniques and methods capable of further developing the examination system used in European competitions and the benefits these can bring forward for the overall efficiency of the selection procedure and potentially also for candidates. However, making better and more efficient examinations through more advanced technical means should not imply a simultaneous reduction in the transparency of European competitions.
32. Transparency has been the subject of growing recognition in Europe, starting with Declaration No 17 on the right of access to information annexed to the Final Act of the Treaty on European Union, which was signed in Maastricht on 7 February 1992, and culminating in the adoption and solemn proclamation of the Charter of Fundamental Rights. Today it is taken for granted that transparency in the decision making process strengthens the democratic nature of the institutions and enhances public confidence in European administration.
33. Institutions have moved a long way forward in providing candidates with useful information on their performance in competitions, for instance, by granting access to their examination papers or to information on the evaluation criteria used. In such a way, they have adopted standards of a transparent, service- orientated and accessible Community administration. The adoption by the Union of policies geared towards greater openness in this field has also been recognised by the Community courts[11].
34. In light of the above, the Ombudsman points out that, even if it were true that disclosure of the CBT questions would result in administrative and financial burdens, that fact alone, could not, a priori, override the Community principle of transparency and the progress which the institutions have made in this respect. However, as will be explained in paragraphs 35-42, the Ombudsman is not convinced that disclosure would have the administrative and financial consequences that EPSO suggests.
Can the publication/disclosure of the CBT questions/answers jeopardise the efficiency, rigour or fairness of the selection process?
35. The administrative or financial burden to which EPSO refers results from EPSO's conviction that every question disclosed to a candidate will necessarily have to be replaced in the database. If not, the entire CBT system, its integrity and its usefulness for selecting the best candidates would, in EPSO's view, be irreversibly damaged. On the basis of the information which EPSO put forward in its opinion in the present own-initiative inquiry, the Ombudsman is, however, not entirely convinced that this would necessarily be the case.
36. In the Ombudsman's view, it is not unreasonable to consider that, even if all CBT questions were made public on EPSO's website and/or the questions/answers were disclosed to individual candidates upon request, such publication and/or disclosure to individual candidates would not necessarily jeopardise the efficiency, rigour or fairness of the selection process.
37. It is enough to point out in this respect that there are several thousand questions in the database which, as argued by EPSO, is constantly being updated. If published, the questions may sometimes only be slightly modified and adapted to evolving circumstances and situations, while remaining subject to public scrutiny and control with respect to their accuracy.
38. It is hard to see, therefore, any negative implications regarding the fairness and efficiency of the CBT tests resulting from the fact that candidates would be able to consult several thousand questions in order to know what they did wrong in the past and prepare better for any future tests.
39. Moreover, it is far from obvious that the candidates' performance could be significantly influenced by such consultation. Even if candidates were able to memorise some of the several thousand questions contained in the database, it should be noted that only sixty questions (twenty for each test) are chosen randomly by the computer to be answered by a candidate. In addition, if EPSO's true concern is that candidates would get to know the right answers, the system of multiple choice questions to be used could be the "unlimited multiple choice" variant, which implies that any combination of answers could be right or wrong. In other words, if there are four answers to each question, and if, in all cases, two more answers ("all of the above" and "none of the above") were added, and any combination for instance from 1 to 5 or 6 could be right, this would mean that candidates having access to the entire data bank would have to memorise five or six times more answers than the number of questions contained in the data bank[12]. If someone can memorise that many answers, then a case could arguably be made that she or he may be worth considering for positions in the European civil service.
40. In addition, it does not appear that the overall efficiency of such testing would be damaged by the candidates' prior consultation and preparation of the questions. The CBT were conceived as a means of selecting the best candidates and only a pre-determined number of candidates who have done best in the CBT tests are admitted to the written exams. There is no reason a priori to suppose that the candidates who would perform best in a situation in which all candidates are able to prepare themselves by consulting questions used in previous tests would be different from those in a situation in which no such preparation was possible.
41. Therefore, on the basis of EPSO's arguments, the Ombudsman does not see how disclosure of several thousand questions through formal publication on EPSO's website, or to individual candidates following their requests, would prevent the selection and eventual recruitment of officials having "the highest standard and ability", as prescribed by Article 27 of the Staff Regulations.
42. There could be also further added value to such a potential 'formal' disclosure. The participation in the CBT tests of candidates who only do so because they want to familiarise themselves with CBT tests could be avoided. 'Formal' disclosure would further reduce the amount of "informal" or "unofficial" exchanges of information on the CBT questions and answers for commercial purposes. There would also be no potential leaks or fraud in relation to public information.
What does the CBT information sheet disclosed by EPSO mean in fact?
43. EPSO appears to take the view that the introduction of the CBT as a new system of examination requires that commitments previously made with respect to EPSO's obligations towards candidates be revisited, reassessed and reinterpreted. In concrete terms, the Ombudsman understands EPSO's view concerning the reinterpretation of its commitments in light of the introduction of the CBT to be that the CBT information sheet which candidates may request provides them with information on their true performance, and as such is similar to EPSO's prior practice of disclosing to candidates their examination papers, which it adopted following the Ombudsman's Report on secrecy. The Ombudsman cannot agree with such a view.
44. The CBT information sheet informs candidates which option (A, B, C or D) they chose for which question (1 to 20). It also states which of the four options, that is, A, B, C and D, was correct in each question.
45. The CBT information sheet, as described above, does not, however, allow the candidates to know the content of the questions and answers they gave, nor does it allow them to check whether their answers were correctly assessed. This information sheet is, therefore, simply of no concrete use to them, viewed from the perspective of the need to know and the need to check identified immediately above.
46. In this last respect, the Ombudsman points out that the existing mechanisms for checking the accuracy or correctness of the assessment made of a candidate's performance, that is, judicial review of the correctness/accuracy of such an assessment (to which EPSO referred), and/or the Ombudsman's alternative review (to which EPSO did not refer) and, finally, the review of the accuracy of the questions by the Advisory Board on Quality Control of Test Items, which was established for the purposes of CBT, do not constitute satisfactory substitutes to granting candidates access to their own results. The Ombudsman's experience has shown that queries can be solved with a minimum of time and effort, and the need to seek redress before the courts or the Ombudsman avoided, if a candidate is given the chance to see clearly what he/she did wrong.
Final considerations
47. In light of the above, the Ombudsman cannot accept the arguments put forward by EPSO in its reply to this own-initiative inquiry. He is aware, however, that EPSO's views are not isolated and that there are recommendations concerning the security of the tests, as, for example, those published by the International Test Commission, an organisation composed of professional psychological associations, commercial publishers and research organisations involved in testing[13]. He stresses, however, that this kind of recommendations corresponds, reasonably, to the interests of the testing industry and points out that they have been challenged by some civic organisations[14] and even by some legislators[15]. Finally, he cannot exclude that there exist alternative possibilities for informing unsuccessful candidates about the wrong answers they gave, without disclosing the CBT questions to the general public or without sending the questions on paper to the candidates who so request. For instance, EPSO did not indicate whether it had considered the possibility of showing candidates their wrong answers "on screen" and thus allowing candidates to understand their errors.
48. While awaiting the respective decisions of the European courts in relation to the disclosure of the CBT tests, the Ombudsman trusts that EPSO will reflect again on the problem, taking into account his above considerations. The Ombudsman applauds the fact that, by using the various methodologies and testing techniques such as CBT, EPSO has responded creatively to its mandate of facilitating the Union's capacity to attract the best and brightest candidates for European posts. He trusts that EPSO will continue to do this in the future. Through the present own initiative inquiry, the Ombudsman is seeking ways to find an equitable solution with EPSO that would make it possible to bring the above methodologies and testing techniques into line with the principles of transparency referred to in paragraphs 32-34 above, which already form an important part of the European legal order.
49. The Ombudsman asked EPSO to provide information about whether (and, if so, how) it seeks to ensure compliance with the principle of equal treatment of candidates, which the ECJ referred to in its judgment in Case C- 130/75 Prais v Council[16], in view of the fact that CBT tests take place on different dates and the content of the tests is not the same for each candidate.
In this context, he asked EPSO to refer to the role of the selection boards in CBT tests and reminded EPSO that selection boards have a duty to exercise control over competition procedures and, more particularly, to check whether the above principle of equal treatment is adhered to.
The points made by the Ombudsman in his letter opening the present inquiry
50. The Ombudsman referred to the ECJ judgment in Case C-130/75 Prais v Council[17], in which the Court held that "[w]hen the [recruitment] competition is on the basis of tests, the principle of equality necessitates that the tests shall be on the same conditions for all candidates, and in the case of written tests the practical difficulties of comparison require that the written tests for all candidates should be the same. It is therefore of great importance that the date of the written test should be the same for all candidates."
51. However, in the inquiries on individual complaints which form the basis of the present own-initiative inquiry, EPSO did not provide any information about whether and how it ensures compliance with the above principle of equal treatment. In this context, it only stated in its opinion on complaint 370/2007/MHZ that "by definition the candidates do not sit the same test" and that the overall difficulty of the questions a candidate receives is equal to the difficulty of the questions received by all other candidates.
52. EPSO referred again to the Pachtitis Case, pending before the Court of First Instance, and stated in this context that "although it does not consider that there is a potential incompatibility between the CBT and the Prais judgement as recalled by the Ombudsman, there are no doubts that the court will clarify this issue".
53. EPSO also recalled the well established case-law concerning oral examinations[18], which clarified that, in order to respect the principle of equal treatment of candidates, a selection board may have at its disposal a series of questions chosen randomly but having a similar level of difficulty. In addition, the same case law envisages that, in written examinations, candidates are normally invited to choose one from among many subjects.
54. Similarly and always according to EPSO, even if the questions are not the same for each CBT test taken by each candidate, their difficulty is equal for all candidates.
55. The difficulty of CBT questions is graded in an ascending order, starting from the lowest level of difficulty and moving to the most complex one. The questions are grouped on the basis of their level of difficulty, as explained in paragraph 15 above. The computer chooses questions for each candidate from within the group of the same level of difficulty and the number of such questions is equal for each candidate in the same test.
56. The validation of this level of difficulty is ensured by the CBT contractor, by EPSO and by the Advisory Board on Quality Control of Test Items.
57. The latter not only checks the level of difficulty of the questions but also the quality of each new question introduced into the database and the accuracy of the translations of new questions into the test languages. It also issues an opinion as to whether the questions should be annulled or kept in the database, if their accuracy has been challenged by candidates. EPSO noted in this respect that after the candidates finish their test, they are invited to express their opinion on the test by completing a questionnaire in which they can comment on specific questions. If a question is challenged in such a way, the issue is forwarded to the Advisory Board on Quality Control of Test Items.
58. EPSO concluded that, while "in the traditional system the questions were verified only by the selection board" (even if they were numerical and verbal reasoning questions, furnished by the contractor), in the CBT system the verification is "much more advanced" because it is carried out by "a permanent, inter-institutional and independent organism - that is by the Advisory Board on Quality Control of Test Items."
59. Moreover, the Advisory Board on Quality Control of Test Items is progressively becoming similar to the selection boards, in the specific sense that its decisions on whether CBT questions should be annulled or kept in the data base should soon become binding.
60. In addition, the quality of the questions is better ensured thanks to Intelitest, which is a tool reporting on the quality of each question, by monitoring how many times it was used, how many good answers to it were received, etc.).
61. As pointed out by EPSO, the European courts will take a stance on the issue of equal treatment within the CBT system and on whether the questions of the same level of difficulty may ensure such treatment (Case T-374/07 Pachtitis v Commission and EPSO.)
In the other pending Case F-7/07 Angioi v Commission, referred in paragraph 28 above, the first point of the third plea is that there was "an infringement of the principle of equal treatment in that the questions put were chosen in a random manner in a base containing questions of very varying levels, the validity of some of which was dubious." Moreover, the issue concerning the principle of equal treatment of candidates has also been raised in Case F-2/07 Martins v Commission, also referred to in paragraph 28.
62. Since the issue of the legal principle in question is also now before the Community courts, the Ombudsman considers that continuing the present own-initiative inquiry in relation to this aspect is not justified as well. For that reason, he closes this aspect of his own-initiative inquiry.
63. Nevertheless, the Ombudsman wishes to point out that he accepts that if (i) the same number of questions is submitted to each candidate and (ii) these questions are of the same level of difficulty, even if they are not identical, the candidates are not treated unfairly.
64. However, if the CBT were considered as part of a competition organised under the Staff Regulations, the Ombudsman is concerned by the fact that the level of difficulty of these questions and their quality appears to be beyond the control of the selection boards. He regrets, therefore, that EPSO did not reply to his specific question (contained in paragraph 8 above) concerning the duty of selections boards to exercise control over the competition procedures.
65. Even if the CBT were only a kind of proficiency test, EPSO has not given any specific explanations on how and on the basis of which criteria the Advisory Board on Quality Control of Test Items determines the level of difficulty of the questions. In actual fact, the judgment as to whether a question should be considered difficult or easy is, if not inherently, very likely to be subjective. Taking into account the significant number of questions in each level/group, it is very hard to accept that the degree of their difficulty is identical, as EPSO believes. For these reasons, EPSO's reply does not dispel concerns about the risks involved in asking candidates to respond to different sets of questions that do not have the same degree of difficulty.
In light of his findings in paragraphs 29 and 62 above, the Ombudsman considers that no further inquiries into the issues examined in this inquiry are justified. He therefore closes his own-initiative inquiry without making a new finding of maladministration. He underlines, however, that, pending the judgements of the Community courts, he considers his critical remark in case 370/2007/MHZ to be still justified.
P. Nikiforos DIAMANDOUROS
Done in Strasbourg on 9 March 2009
[1] Decision of the Secretaries-General of the European Parliament, the Council and the Commission, the Registrar of the Court of Justice, the Secretaries-General of the Court of Auditors, the Economic and Social Committee and the Committee of the Regions, and the Representative of the European Ombudsman of 25 July 2002 on the organisation and operation of EPSO, OJ 2002 L 197, p. 56.
[2] The critical remark read as follows: "EPSO has failed adequately to justify its refusal to give the complainant access to the CBT questions/answers. This is an instance of maladministration."
[3] Case C-130/75 Prais v Council [1976] ECR 1589, paragraphs 13-14.
[4] Case T-374/07 Pachtitis v Commission and EPSO (action brought on 22 September 2007).
[5] OJ 2001 L 145, p. 43.
[6] EPSO asked for confidential treatment of the exact figures and the terms used to describe the various levels of difficulty.
[7] In its opinion on complaint 370/2007/MHZ, EPSO pointed out that if the complainant's request for access to documents were considered under Regulation 1049/2001, there would be clear limits to the right of access, notably for reasons of public interest, in order to safeguard the objective of selecting the best staff for the European institutions. In this regard, EPSO referred to Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429. It argued that the right of access to documents is limited or excluded, according to the principle of lex specialis derogat legi generali, meaning that a special rule derogates from the general rule where there are special rules governing specific matters. In this regard, EPSO referred to Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-95, and argued further that the Staff Regulations have a specific objective, justified by reasons of public interest. EPSO also referred to Case T-376/03 Hendrickx v Council [2005] ECR-SC I-A-83 and II-379, and the case-law cited therein, in particular, Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73. In the latter case, the Court held that the applicant could not rely on Article 255(1) of the EC Treaty or Regulation 1049/2001 in order to question the applicability of Article 6 of Annex III of the Staff Regulations, which contains the principle that selection board proceedings should be secret. Finally, EPSO stated that it could not release the questions/answers without undermining the selection process, as understood within the meaning of Article 4(3) of Regulation 1049/2001. Any disclosure under Regulation 1049/2001 of the content of the database or a part thereof would benefit those future candidates who would be able to access it and could thus cause adverse effects for future competition procedures by undermining the principle of equal treatment. EPSO pointed out that Article 4(3) of Regulation 1049/2001 provides that access to a document will be refused "unless there is an overriding public interest in disclosure". However, the interest is clearly private and it is undoubtedly in the public interest that the objectivity of the selection procedures for the European institutions and the equality of treatment of candidates are fully guaranteed.
[8] OJ 2007 C 283, p. 37.
[9] OJ 2007 C 69, p. 30.
[10] OJ 2007 C 56, p. 43.
[11] See, for instance, Case T-72/01 Pyres v Commission [2003] ECR-SC I-A-169 and II-861 paragraph 70 and Case T-371/03 Le Voci v Council [2005] ECR-IA-209, paragraph 126 and, more recently, Case F-74/07, Meierhofer v Commission, not yet published in the ECR.
[12] For instance, if the data bank contained 10 000 questions, the number of answers to be memorised by candidates having access to the entire databank would be in the area of 50 000 to 60 000.
[13] http://www.intestcom.org/Guidelines/guidelines+for+test+use.php.
[14] For instance: http://www.fairtest.org/about
[15] See, for instance, in the USA, New York State's truth-in-testing law dated 1979 and periodically updated and the very recent, February 2009, test disclosure bill of California (http://query.nytimes.com/gst/fullpage.html?res=9F07E4D81539F937A35753C1A967948260.)
[16] C-130/75 Prais v Council [1976] ECR 1589, paragraphs 13-14. See also T-132/89 Gallone v Council [1990] ECR II-549, paragraph 36.
[17] C-130/75 Prais v Council [1976] ECR 1589, paragraphs 13-14. See also T-132/89 Gallone v Council [1990] ECR II-549, paragraph 36.
[18] Case C-228/86 Goossens v Commission [1988] ECR 1919, paragraph 15.
