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Decision in case 1472/2016/JAS on the exclusion of a candidate from a selection procedure organised by the European Personnel Selection Office due to a distinguishing mark on his case study

Available languages: en
  • Case: 1472/2016/JAS
    Opened on 12 Dec 2016 - Decision on 11 Apr 2017
  • Institution(s) concerned: European Personnel Selection Office

 

The case concerned the complainant’s exclusion from a selection procedure organised by the European Personnel Selection Office (EPSO). The complainant was excluded because he had put his initials on the case study. In his complaint to the Ombudsman, the complainant argued that EPSO was wrong to exclude him particularly as it had not shown him a copy of the case study he had completed.

The Ombudsman inspected the case study and verified that the complainant had indeed written his initials on it. The Ombudsman also confirmed that EPSO had informed the complainant, prior to the case study, that any distinguishing marks such as initials might lead to exclusion from the selection procedure.

The Ombudsman concluded that the decision to exclude the complainant was reasonable and fair. Given that candidates should be assessed on merit only, it is warranted that EPSO does its utmost to ensure anonymity in the assessment. Warning and subsequently excluding candidates writing distinguishing marks is a legitimate way to do this. While the Ombudsman concluded that there had been no maladministration by EPSO in this case, she suggested that EPSO should, for the future, convey explicitly to candidates that any inclusion of a distinguishing mark on a test will result in exclusion from the selection procedure. She suggested also that, where a candidate seeks evidence of having included a distinguishing mark on a test, EPSO needs to find a mechanism whereby it can provide such evidence.

The background to the complaint

1. The complainant took part in a selection procedure for Heads of Administration in EU delegations organised by the European Personnel Selection Office (EPSO) in 2015[1].

2. The selection procedure entailed a number of different stages, one of which was a case study. After the complainant had done the case study, EPSO informed him that he had been excluded from the selection procedure because of an attempt to identify himself. The complainant requested the Selection Board to review that decision.

3. The Selection Board informed the complainant that the decision to exclude him from the selection procedure had been “based on finding your initials on your test. This was a violation of the relevant instructions for the case study”. “Because of the presence of a distinguishing mark on your case study”, the Selection Board thus upheld its decision to exclude the complainant from the selection procedure.

4. The complainant then asked EPSO to provide him with the legal basis for excluding him. He also asked for an uncorrected copy of his case study. EPSO refused to provide the complainant with such a copy.

5. Not satisfied, the complainant turned to the Ombudsman in October 2016.

The inquiry

6. The Ombudsman opened an inquiry into the complaint and identified the following concerns:

1) EPSO was wrong in excluding the complainant from the selection procedure;

2) EPSO was wrong not to disclose the unmarked copy of the complainant’s case study;

3) EPSO failed to inform the complainant of the criteria that govern the exclusion of candidates who have supposedly attempted to identify themselves in the case study.

7. In the course of the inquiry, the Ombudsman’s inquiry team met with representatives from EPSO and inspected the relevant documents. In conducting the inquiry, the Ombudsman has taken into account the arguments and opinions put forward by the parties.

Exclusion from the selection procedure

Arguments presented to the Ombudsman

8. The complainant argued that excluding him from the selection procedure for writing his initials was not covered by EPSO’s rules. He stated that if he had indeed written his initials in the case study exercise, he would have done so inadvertently, as he had had no intention to illegitimately influence the Selection Board.

9. He argued that excluding a candidate from a selection procedure merely on the grounds that he or she has attempted to identify him or herself in the case study is wrong because a candidate should be judged solely on his or her merits, not on the basis of an unsubstantiated suspicion that he or she was out to deceive the Selection Board. The complainant questioned why he should have tried to influence the board by sending a cryptic message in the case study given the fact that he (as well as other candidates) would have had a much better chance to do so through direct contacts with the examiners during the interview and the group exercise.

The Ombudsman’s assessment

10. At the inspection of EPSO’s file, the Ombudsman’s inquiry team verified that in the standard letter inviting the complainant to take the case study, EPSO gave the following instructions: “In order to ensure that the exams are marked anonymously any signature, name or distinguishing mark (initials, remarks unrelated to the context, telephone number, private or professional address, symbol or other) written intentionally or otherwise, may result in the cancellation of your case study and your participation in the competition” (emphasis added).

11. Furthermore, the inspection revealed that the complainant had indeed put his initials on the first page of his case study. EPSO’s file also showed that both initially, and at the review stage, the Selection Board responsible for the selection procedure identified the complainant’s initials as a “distinguishing mark”.

12. EPSO’s applicable rules[2] for selection procedures state: “You may be excluded from the competition in question if, at any stage in the procedure, EPSO finds that [...] contrary to the instructions received before your written or practical test, you have signed or written a distinctive mark on your copies[3] (emphasis added).

13. The Ombudsman’s inquiry team informed the complainant of the findings made during the inspection of EPSO’s file. In response, the complainant maintained his argument that the manner in which the Selection Board applied these rules to him had been unfair.

14. The Ombudsman notes that the selection of candidates suitable to work in the EU civil service should be based on merit only and should observe the principle of equal treatment of candidates[4]. EPSO should take all necessary measures to ensure that the selection procedures that it organises adhere to these principles.

15. One of the measures taken to ensure that candidates are selected on the basis of merit only and that they are treated equally is to make sure, to the greatest extent possible, that their identity is not revealed to the members of the Selection Board. As the complainant points out, not every stage of a selection procedure allows for such an approach, as the members of the Selection Board necessarily interact directly with the candidates during, for example, the interview. For those stages of the selection procedure, other measures need to be taken to ensure equal treatment. However, this does not mean that EPSO should not take steps to ensure anonymity whenever possible, for example in the marking of case studies. Preventing candidates from being identified by the members of the Selection Board by prohibiting candidates from putting distinguishing marks on their case studies is a legitimate way of ensuring anonymity and equality in the assessment of such written exercises.

16. While there is no reason to believe that the complainant wrote his initials with the intention to identify himself to the Selection Board, it is reasonable—and in fact necessary—for EPSO and Selection Boards to take a strict approach concerning distinguishing marks such as initials. In most cases, it will be impossible for a Selection Board to determine the intentions of a candidate who uses such a distinguishing mark. If a Selection Board had to prove intent, it would run a great risk of not being able to exclude candidates whose intention cannot be clearly identified and thus successfully manage to identify themselves to the assessors. This would be unfair to other candidates, as EPSO and the Selection Boards could no longer guarantee an assessment based on merit only.

17. The Ombudsman fully understands that the complainant feels that it was a drastic measure to exclude him from the selection procedure. However, EPSO informed the complainant, in the letter inviting him to take the case study, that the use of distinguishing marks could result in him being excluded from the selection procedure. The complainant failed to comply with these reasonable instructions and the decision to exclude him from further participation in the selection procedure was therefore reasonable and fair.

18. In view of the above, the Ombudsman concludes that there was no maladministration by EPSO concerning this aspect of the complaint.

Disclosure of the complainant’s case study

Arguments presented to the Ombudsman

19. In reply to the complainant’s request to receive an unmarked copy of his case study, EPSO referred to the letter inviting him to the case study. The relevant part of this letter states: “The case study is part of a database developed by EPSO. As this database will also be used in the framework of other competitions, you will not be able to request a copy of your test. Disclosing such copies would compromise development of future tests and the fairness and objectivity of future competitions. In line with point 3.3.1.2 of the General rules governing open competitions, you are hereby informed about this before taking the test.

20. The complainant argued that EPSO’s decision to deny him access to an unmarked copy of his case study put him in a position where he could not defend himself properly, as he did not have access to the evidence on the basis of which he had been excluded from the selection procedure. Moreover, he was unable to see in what way access to his case study could compromise EPSO’s future activities.

The Ombudsman’s assessment

21. EPSO’s rules state that “[...] access to uncorrected copies cannot be granted in those cases where test content is intended to be reused in the future, and where disclosing these copies would compromise development of future tests and the fairness and objectivity of future competitions. This concerns, in particular, the case study, for which access to uncorrected copies is hereby explicitly excluded[5] (emphasis added). EPSO also informed the complainant, before he took the case study, that he would not be able to obtain such a copy.

22. The Ombudsman’s inquiry team inspected the case study and confirmed that the complainant had indeed written his initials on the first page. This information was shared with the complainant during the inquiry. In reply to this information, the complainant did not maintain his wish to obtain a copy of his case study. It is thus not necessary to inquire further into this aspect of the complaint.

23. However, the complainant’s arguments concerning his rights have some merit and have general implications for EPSO’s procedures. The Ombudsman would thus like to add the following remarks.

24. EPSO justifies its refusal to disclose unmarked copies by its intention to reuse test content in the future. The Ombudsman has previously expressed her reservations concerning this argument in the context of selection procedures for translators[6].

25. It is fully understandable that candidates excluded for allegedly writing distinguishing marks may wish to receive a copy of their unmarked case studies. For these candidates, it is necessary to have such access in order to take an informed decision about whether to challenge the decision excluding them from the selection procedure. In these cases, access thus ensures the right to an effective remedy[7].

26. The Ombudsman therefore suggests that EPSO consider not reusing tests so that it can provide candidates with an unmarked copy of their case studies. Alternatively, EPSO should find some other mechanism (for example, provision of a copy of the relevant extract from the unmarked copy of the case study) to satisfy the candidate that he or she had included a distinguishing mark. This is necessary in order to ensure candidates’ full confidence in the integrity of EPSO’s procedures.

Information on the exclusion criteria

Arguments presented to the Ombudsman

27. The complainant commented that “EPSO’s instruction regarding the possible inclusion of personal data in the written exercise establishes that this ‘may’ be cause for disqualification. The use of ‘may’ would appear to indicate that disqualification is not automatic in those cases, and begs the question of what are the precise conditions under which disqualification would be justified”. The complainant argued that EPSO had failed to explain to him the criteria applied to decide whether to exclude a candidate who has supposedly attempted to communicate with the Selection Board. In his view, this made it impossible for him to defend himself properly.

The Ombudsman’s assessment

28. At the meeting with the Ombudsman’s inquiry team, EPSO’s representative explained that, to his best knowledge, all candidates that are found to have used “distinguishing marks” are excluded from the selection procedure in question. This information was shared with the complainant during the inquiry.

29. Selection Boards generally enjoy wide discretion[8]. In the present case, the Selection Board identified the complainant’s initials as distinguishing marks on his case study. As the rules provide that candidates may be excluded from a selection procedure for using distinguishing marks (see paragraph 12), the Selection Board did not go beyond its margin of discretion when deciding to exclude the complainant.

30. There was thus no maladministration by EPSO concerning this aspect of the complaint.

31. However, the Ombudsman understands the point being made by the complainant. EPSO’s instructions as currently worded do not convey explicitly that any inclusion of distinguishing marks will result in exclusion from the selection procedure. If it is indeed standard practice to exclude from further participation in selection procedures all candidates who are found to have written distinguishing marks on their tests, it is fair and appropriate to give candidates as clear information as possible in this regard. The Ombudsman will thus suggest to EPSO that it do so.

Conclusion

On the basis of the inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There was no maladministration by the European Personnel Selection Office.

The complainant and EPSO will be informed of this decision.

Suggestions for improvement

The European Personnel Selection Office should improve its procedures for dealing with cases in which a candidate seeks evidence of having included a distinguishing mark in a written test. This can be done either by providing, upon request, copies of unmarked case studies to candidates who are excluded from a selection procedure or by finding some other mechanism (for example, provision of a copy of the relevant extract from the test reply).

The European Personnel Selection Office should inform candidates explicitly that the inclusion of distinguishing marks on written tests will (and not only may) lead to their exclusion from the selection procedure in question, if this is indeed its standard practice.

 

Strasbourg, 11/04/2017

 

Emily O'Reilly

European Ombudsman

 

 

[1] EPSO/AST/135/15, competition notice published on 27 May 2015, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:2015:114A:TOC

[2] The relevant notice of competition states that: “This Notice of Competition, together with the General Rules governing Open Competitions published in Official Journal of the European Union C 70 A of 27 February 2015 [...], form the legally binding framework for this selection procedure.”

[3] Article 3.5 of the General Rules governing Open Competitions (“General Rules”), OJ C 70A , 27.2.2015, p. 1, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.CA.2015.070.01.0001.01.ENG&toc=OJ:C:2015:070A:TOC

[4] See, for example, Article 27 of the Staff Regulations (consolidated version available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1433861011292&uri=CELEX:01962R0031-20140701), which sets out that those recruited to the EU civil service should be of the highest standard of ability, efficiency and integrity, and that recruitment criteria should be based on merit; and Article 1.1 of the General Rules: “This procedure gives all candidates a fair chance to demonstrate their abilities and guarantees selection based on merit while observing the principle of equal treatment.

[5] Article 3.3.1.3 of the General Rules.

[6] Draft recommendation of the European Ombudsman in the inquiry into complaint 1999/2012/JF against the European Personnel Selection Office, paragraph 16, available at: https://www.ombudsman.europa.eu/en/cases/recommendation.faces/en/53705/html.bookmark

[7] Judgment of the Civil Service Tribunal of 18 September 2012, Cuallado Martorell v Commission, F-96/09, ECLI:EU:F:2012:129, paragraphs 47-48.

[8] See, for example, Judgment of the Civil Service Tribunal of 24 April 2013, CB v Commission, F-73/11, ECLI:EU:F:2013:50, paragraph 81.