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

The background to the complaint

1. The complaint to the European Ombudsman concerns EPSO's handling of a request for information in respect of Open Competition EPSO/AD/181-182/10.

2. The complainant applied for the competition, but was not invited to participate in the assessment centre phase because he only obtained 40 points for his qualifications and the pass mark was 41 points. On 2 September 2010, the complainant sent EPSO an e-mail, expressing surprise at his result. He also requested a review of the result and a copy of the evaluation sheet concerning his qualifications.

3. EPSO replied on 10 September 2010, stating that his request could not be taken into consideration, since it had been made after the expiry of the deadline for making a request for information or a request for review. EPSO stated that the requests should have been made within 10 calendar days of the date of publication of the results on 20 August 2010.

The subject matter of the inquiry

4. The complainant alleged[2] that EPSO wrongly refused him access to the selection board's evaluation sheet concerning his qualifications.

5. The complainant claimed that EPSO should provide him with a copy of the evaluation sheet used by the selection committee to assess his application.

The inquiry

6. The Ombudsman asked EPSO to submit an opinion on the complaint by 30 September 2012. The opinion was forwarded to the complainant with an invitation to make observations by 30 November 2012. The complainant did not submit any observations.

7. In his letter opening the inquiry, the Ombudsman asked EPSO to consider, when preparing its opinion, whether the 10-day deadline for requesting information is justified in light of the following considerations.

8. Fundamental Rights - First, while a 10-day deadline for requesting a review seems justified for practical reasons (see footnote 1), there is no such justification for imposing a short deadline for seeking information.

9. Second, limiting in time the right of a person to have access to his/her file directly restricts two fundamental rights, namely the right of access to one's own file, set out in Article 41 of the Charter of Fundamental Rights, and the right of access to data collected concerning oneself and (where necessary) to have it rectified, set out in Article 8(2) of the Charter of Fundamental Rights.

10. Third, the short deadline for seeking information also indirectly restricts the fundamental rights to seek judicial review and to complain to the Ombudsman. The Ombudsman noted in this regard that a candidate is not required to seek an internal review before going to court or having recourse to the Ombudsman. The respective two-month or two-year deadline applies as regards the exercise of these fundamental rights.

11. Making the right to seek a review effective - Even if a candidate requests information within the 10-day deadline, the answer is unlikely to arrive quickly enough to enable the candidate to make a well informed decision as to whether or not to request a review. Given that the short deadline for requesting a review is reasonable, the only way to make the review process effective would be automatically to provide all candidates with the evaluation sheet concerning their qualifications (in respect of the admission stage) and the answers to their written/practical tests (in respect of the assessment centre stage).

12. In addition, given the short deadline for requesting a review, the Ombudsman asked EPSO to inform him whether it has considered setting up a system generating automatic e-mails to candidates informing them that there is new information provided in their EPSO profiles.

The Ombudsman's analysis and conclusions

A. The refusal to give access to the evaluation sheet

Arguments presented to the Ombudsman

13. The complainant argued that he should be given access to the evaluation sheet used to assess hid application so that he would be able to see which criteria he was considered not to have met.

14. In its opinion, EPSO stated that, on 20 August 2010, the complainant was informed that he had not been invited to the assessment centre stage of the competition because, when assessing his qualifications, the Selection Board had awarded him fewer points than the required minimum. Having requested a review and a copy of the evaluation sheet and having been informed that his requests were time-barred, the complainant again asked, by e-mail dated 15 September 2010, to be provided with the evaluation sheet used by the Selection Board to assess his application. By e-mail dated 12 November 2010, EPSO informed the complainant that his request had been forwarded to the competition secretariat.

15. In EPSO's view, the complainant's arguments imply that he believes that he was given insufficient reasons for the refusal to grant him access to the evaluation sheet. However, the obligation to state reasons set out in Article 296 of the Treaty on the Functioning of the European Union has to be reconciled with the observance of the secrecy which applies to the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. Safeguarding this secrecy precludes disclosing the position adopted by individual members of selection boards or any details relating to personal or comparative assessments of candidates.

16. EPSO went on to state that, when the suitability of candidates is considered, the proceedings of the selection board are, above all, of a comparative nature and, accordingly, covered by the secrecy surrounding such proceedings. Consequently, according to established case-law, communication of the marks obtained constitutes a sufficient statement of reasons for decisions of selection boards and enables the EU courts to carry out an appropriate judicial review. Moreover, according to established case-law, a Selection Board cannot be required, when giving reasons for a candidate's failure in a test, to specify which of the candidate's answers were considered inadequate or to explain why. Such detailed reasons are not necessary to enable the Court (and hence the Appointing Authority) to exercise its power of review and, consequently, to enable the candidate to determine whether or not it is appropriate to lodge a complaint or, if need be, to bring an action in court.

17. EPSO therefore considered that the complainant received all the information that the applicable law defines as necessary to fulfil the obligation to state reasons. Nevertheless, EPSO apologised for not having responded to the complainant's e-mail dated 12 November 2010.

18. In response to the Ombudsman's concerns about the 10-day deadline, EPSO stated that the candidates' right to receive information envisages that unsuccessful candidates may receive, without compromising the secrecy of the proceedings of the selection board, information and documents that enable them to make an informed decision about the usefulness of challenging the selection board's decision. According to recent case-law, the 10-day deadline is justified because it enables unsuccessful candidates to obtain information and documents at least one month before the expiry of the deadline for filing an appeal before the Court or that for lodging a complaint with EPSO[3]. EPSO, therefore, did not see any indirect restriction of the fundamental right to seek judicial review or to complain to the Ombudsman.

19. According to EPSO, the right of access to data collected concerning oneself and to have it rectified, set out in Article 8(2) of the Charter of Fundamental Rights, cannot be affected, given that pursuant to Article 14 of Regulation 45/2001 on the protection of personal data[4], the data subject has the right, without delay, to have inaccurate or incomplete personal data rectified. In accordance with point 3.9 of the EDPS's[5] "Opinion on a notification for prior checking received from the Data Protection Officer of the European Commission on the system of 'Recruitment, by competition, of permanent staff for the European institutions or for Community bodies, offices and agencies'", dated 24 February 2006, "[t]he right of rectification ... can obviously apply only to factual data. Marks allocated could not under any circumstances be open to a right of rectification by the data subject."

20. As regards the suggestion to automatically provide all candidates with the evaluation sheets concerning their qualifications at the admission stage, as well as the answers to their written or practical tests at the assessment centre stage, EPSO again argued that when the suitability of candidates is determined, the proceedings of the selection board are of a comparative nature and, therefore, covered by the secrecy surrounding such proceedings.

21. In respect of the suggestion that automatic e-mails could be generated to inform candidates that there is new information in their EPSO profiles, EPSO stated that it has developed a 'robomail' notification alerting candidates when they have a new message in their EPSO account. EPSO pointed out, however, that this is an additional service from which candidates cannot derive any rights.

The Ombudsman's assessment

22. EPSO argues, in sum, that the complainant could not be granted access to the evaluation sheet in respect of his qualifications because of the secrecy which surrounds the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. In this respect, the Ombudsman reiterates the finding he made in the context of his own-initiative inquiry OI/5/2005/PB[6]: the provision in the Staff Regulations stipulating that the proceedings of the selection boards shall be secret does not prevent disclosure to candidates of the evaluation criteria or the detailed breakdown of marks in respect of a particular test. The outcome of that own-initiative inquiry was that EPSO undertook to provide candidates with an evaluation sheet indicating not only the global final mark, but also the evaluation criteria used and the partial marks awarded for each criterion.

23. The Ombudsman further notes in this respect that, according to footnote 1 of the relevant notice of competition, "[c]andidates not invited to the assessment centre can obtain a copy of the selection board's evaluation sheet concerning their qualifications by submitting a request within 10 days of being notified of the results." Accordingly, EPSO itself has adopted the position that the evaluation sheet was not covered by the secrecy surrounding the proceedings of the Selection Board during the 10-day period following the communication to the candidates of their results. If the evaluation sheet was not covered by the secrecy surrounding the proceedings of the Selection Board during that period, logically and necessarily, the Ombudsman does not understand the process of reasoning by which it could have become covered by the secrecy surrounding the proceedings of the Selection Board after that period.

24. In respect of EPSO's reference to recent case-law, the Ombudsman notes that the judgment to which EPSO refers underlines EPSO's obligation to respect the deadlines for responding to requests for information made by candidates in order to enable them to exercise the right to make an informed decision as to whether or not to challenge decisions taken by selection boards[7]. Although the judgment also refers to the short deadline for candidates to make requests for information[8], it does not suggest that a right for candidates to obtain information beyond that deadline would be excluded.

25. On the basis of the above, the Ombudsman does not find convincing EPSO's arguments in support of its refusal to provide the complainant with access to the selection board's evaluation sheet concerning his qualifications, thereby limiting his fundamental right of access to his file[9] and to data collected concerning him[10]. The Ombudsman will address EPSO's unjustified refusal, which constitutes an instance of maladministration, by making a draft recommendation, in accordance with Article 3(6) of the Statute of the European Ombudsman.

26. The Ombudsman acknowledges the improvement, in respect of informing candidates, brought about by the 'robomail' system. He does not exclude the possibility, however, that further improvements could be made. Given the lack of valid reasons put forward by EPSO for keeping the evaluation sheet secret, and with a view to allowing candidates the fullest possible right to review, EPSO could reconsider the possibility of automatically providing all candidates with their evaluation sheets. The Ombudsman will further consider this issue when he evaluates EPSO's reasoned opinion on his draft recommendation and would welcome EPSO's position also in this respect.

B. The draft recommendation

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

Taking into account the Ombudsman's findings, EPSO should provide the complainant with a copy of his evaluation sheet concerning his qualifications.

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 September 2013. The detailed opinion could consist of the acceptance of the draft recommendation and a description of how it has been implemented.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 8 July 2013

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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] The complainant also alleged that EPSO wrongly excluded him from participating in the open competition and he claimed that EPSO should: (1) Re-evaluate his application; and (2) In the event the re-evaluation requested under claim (1) would show that he should have been invited to that stage in the competition, allow him to attend the assessment centre stage. However, the Ombudsman found that there were insufficient grounds to include this allegation and these claims in his inquiry for the following reasons. Given the organisational and time constraints involved in organising competitions, the Ombudsman considered it reasonable for EPSO to set strict and short deadlines for requests for reviews at the different stages of competitions. The aim of the allegation and related claims could only be attained by setting aside these valid reasons for setting strict deadlines.

[3] Case F-96/09 Martorell v Commission, judgment of 18 September 2012, not yet published in the ECR, paragraph 47.

[4] Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ 2001 L 8, p.1.

[5] European Data Protection Supervisor.

[6] The decision is available at: www.ombudsman.europa.eu/en/cases/decision.faces/en/3706/html.bookmark

[7] Case F-96/09 Martorell v Commission, cited in footnote 3 above. Paragraph 48 of the judgment reads as follows: "It follows from the analysis that has just been made that EPSO's strict observance of the specific right recognised in favour of candidates, both in respect of the content of this right and the time limit for providing a reply, reflects the duties which result from the principle of good administration, the public's right of access to documents and the right to an effective remedy, in accordance with Articles 41, 42 and 47 of the Charter of Fundamental Rights of the European Union. Accordingly, besides possibly leading eliminated candidates to bring an action or lodge a complaint without being in possession of sufficient information, EPSO's non-observance of the specific right recognised in favour of candidates may constitute a wrongful act in the performance of public duties which could, in some circumstances, give rise to a right to compensation on the part of the candidate" (unofficial translation and emphasis added).

[8] Case F-96/09 Martorell v Commission, cited in footnote 3 above, paragraph 47.

[9] Article 41(2)(b) of the Charter of Fundamental Rights of the European Union.

[10] Article 8(2) of the Charter of Fundamental Rights of the European Union.