Europos ombudsmenas

Strasbourg, 20-11-2007

Mr Nicholas David BEARFIELD
Director
European Personnel Selection Office
Avenue de Cortenbergh/Kortenberglaan 80
1049 Brussels
BELGIQUE

Dear Mr Bearfield,

In my decision on complaint 370/2007/MHZ, I indicated that I would seriously consider opening an own-initiative inquiry in relation to EPSO's computer-based testing ("CBT"). By the present letter, I am opening such an inquiry.

First, I would like to note that this new system of testing candidates has been introduced recently by EPSO. It is my understanding that EPSO is currently evaluating the CBT system with an eye to taking advantage of the experience gathered after the initial period of its regular use in the framework of open competitions and other selection procedures. I hope that my present inquiry will contribute positively to and will be helpful for EPSO in conducting such an exercise. I also hope that my inquiry will provide EPSO with an opportunity to present to the Ombudsman its evaluation of the advantages of the current CBT system both for the efficient administration of competition procedures and also, possibly, for the candidates themselves.

In this context, however, and taking into account a number of complaints I have received in relation to the CBT and EPSO's opinions on these complaints, I would like, from the outset of this own-initiative inquiry, to express to you the following concerns about certain aspects of the CBT:

(a) In Case 130/75 Prais v Council, the ECJ held the following: "When 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 tests should be the same for all candidates."(1) EPSO has stated that the advantage of its CBT system is that each candidate can sit an individual test generated at random among the questions included in the database, on the day they choose within the period of time set by EPSO(2). Relatedly, EPSO has noted that, by definition, candidates do not sit the same test(3). Hence, the current CBT system could be considered not to be compatible with the principle of equal treatment of candidates, as reflected in the above considerations in Prais. EPSO is invited to express its views on this matter.

(b) Even assuming that the current CBT system is compatible with Prais, the principle of fair and equal treatment of candidates could reasonably be considered to imply that the questions in the database should be appropriate, in view of the purpose of the tests, and that the (set of) questions put to each candidate should be of a similar nature and difficulty. EPSO has stated that the (i) relevant database was set up in co-operation with various European institutions and with the help of a contractor(4); (ii) this database contains a series of verbal and numerical reasoning questions and questions designed to assess knowledge of the European Union(5); (iii) the same database is regularly "fed", modified and updated(6); and (iv) the overall difficulty of the questions a candidate receives is equal to the difficulty of the questions received by all other candidates(7). However, EPSO has not supplied, in its opinions on the pertinent (closed or pending) complaints, any information about whether and how it ensured, and continues to ensure, compliance with the above requirements of the principle of equal treatment(8). The absence of sufficient pertinent guarantees could be an instance maladministration. Moreover, EPSO has not referred to the role of the relevant Selection Board in this context, in particular in view of the principle that the Selection Board has to keep control over the competition procedures(9). EPSO is invited to express its views on these matters.

(c) I recall that, following the Ombudsman's special report of 18 October 1999 to the European Parliament (concerning the secrecy that formed part of the Commission's recruitment procedure), both the Commission and EPSO accepted that candidates may receive, upon request, a copy of their (unmarked) test papers. Relatedly, I have held that the principle of equal treatment of candidates implies a duty of sufficient transparency in the works of the Selection Board, to enable review of whether or not that principle has been respected(10). Similarly, the need to ensure an appropriate level of transparency could reasonably be considered as also arising in relation to the questions included in the CBT database. In my decisions on complaints 2244/2006/MHZ and 370/2007/MHZ, I concluded that EPSO's refusal to provide the complainants with the CBT questions/answers of their tests constitutes an instance of maladministration, since EPSO had failed to provide adequate justifications for its challenged decisions. Moreover, this refusal seems to negate candidates' well-established right to obtain, upon request, a copy of their (unmarked) test papers and EPSO's well-established practice of making available to candidates the questions put to them during the pre-selection tests and the written tests. EPSO is, thus, invited to express its views on the matter, after properly taking into account, in particular, the reasoning and conclusions in my above-mentioned decisions.

EPSO is invited to provide me with a copy of the documentation it holds in relation to the establishment and the functioning of the CBT database, in particular the relevant tender notice (or similar document) and contract, and its correspondence with other European institutions or bodies in the context of the co-operation it stated it had with them in setting up the database.

EPSO is invited to submit its opinion until 29 February 2008.

My legal adviser Mr Ioannis Dimitrakopoulos (+33 388 17 37 68) will be responsible for this case.

Finally, I would like to inform you that, since I am opening the present own-initiative inquiry into the CBT system, I have decided that no further inquiries are justified in relation to my on-going inquiries into complaints concerning EPSO's refusal to provide candidates with a copy of their CBT questions/answers. EPSO will be informed of each specific decision. The Ombudsman will, however, inform the respective complainants of the results of the present own-initiative inquiry. The Ombudsman also trusts that EPSO would, if necessary, be willing to reconsider these cases (as well as case 370/2007/MHZ which I have closed with a relevant critical remark) in light of the results of the present inquiry.

Thank you in advance for your co-operation.

Yours sincerely,

P. Nikiforos DIAMANDOUROS

(1) Case 130/75 Prais v Council [1976] ECR 1589, paragraphs 13-14. See also Case T-132/89 Gallone v Council [1990] ECR II-549, paragraph 36.

(2) See EPSO's opinion on complaint 3819/2006/DK.

(3) See EPSO's opinion on complaint 370/2007/MHZ.

(4) See EPSO's opinion on complaint 3819/2006/DK.

(5) See EPSO's opinion on complaint 3819/2006/DK.

(6) See EPSO's opinion on complaint 7/2007/PB.

(7) See EPSO's opinion on complaint 370/2007/MHZ.

(8) This is in spite of the fact that I requested EPSO to provide adequate information on how the database was established and how it is used in the context of competitions organised by EPSO (see the Ombudsman's letters opening an inquiry into complaints 3819/2006/DK and 7/2007/PB).

(9) See, for example, Case T-94/96 Hagleitner v Commission [1998] ECR FP II-1467, paragraph 67.

(10) See points 3.2-3.3 of my letter of further inquiries in the context of my own-initiative inquiry OI/5/2005/PB.