Strasbourg, 8 September 2005

Dear Sir,

On 4 November 2003, you made a complaint to the European Ombudsman concerning access to documents in relation to your participation in the recruitment competition COM/C/2/02.

On 27 November 2003, I forwarded the complaint to the Director of the European Personnel Selection Office. The opinion on the complaint was submitted by the European Commission on 8 March 2004. I forwarded it to you with an invitation to make observations, if you so wished. No observations were received from you.

On 25 October 2004, I addressed a draft recommendation to EPSO, and I informed you about my draft recommendation on that same date. On 15 December 2004, I sent you a translation of my draft recommendation.

On 14 February 2005, EPSO and the Commission submitted their joint opinion on my draft recommendation. I forwarded it to you with an invitation to make observations by 31 March 2005. No observations were received from you by that date.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant participated in competition COM/C/2/02, which was held to establish a reserve list of German-speaking typists. The typing test and the oral test, respectively test (f) and (g), were carried out one after the other on the same day. The complainant obtained 8 points in test (f) and thereby failed to reach the pass mark, which was 10. On 30 July 2003, the complainant therefore wrote to the Commission to ask for clarifications regarding his mark and a review of the test. He asked for an explanation of the selection criteria and for a copy of his examination paper.

On 16 October 2003, the European Personnel Selection Office ('EPSO') sent the complainant a copy of the evaluation sheet for his test and informed him that his test had been assessed as to completeness, layout, formatting and typing errors. EPSO however informed the complainant that it could neither disclose the examination paper nor the criteria used by the Selection Board to mark the test. EPSO argued that according to the notice of competition the typing test was part of the oral test and was therefore covered by the duty to keep the proceedings of the Selection Board confidential, as required by Article 6 of Annex III of the Staff Regulations. According to EPSO, this principle had been confirmed by the European Ombudsman in his decision 481/2001/IP. Finally, EPSO informed the complainant that about 75% of the candidates had obtained at least the pass mark in test (f).

The complainant was dissatisfied with EPSO's answer and therefore lodged a complaint with the European Ombudsman. He alleged, in summary, that EPSO had failed to give him access to a copy of his examination paper and to inform him about the criteria used to mark the test. He claimed that he should be given access to a copy of his marked examination paper and be informed of the criteria used to mark the test. He referred to the Ombudsman's draft recommendation in complaint 2097/2002/GG(1) and stated that he wanted access so as to be able to improve his performance in future recruitment competitions.

THE INQUIRY

The complaint was sent to EPSO for opinion. The opinion that the Ombudsman received was however written by the European Commission.

The Commission's opinion

The Commission noted that the complainant had been sent the evaluation sheet, which indicated that the complainant's test had been deemed insufficient in respect of layout, formatting and typing.

With regard to the complainant's request for access to a copy of his marked examination paper and the evaluation criteria ("critères de correction"), the Commission stated that those documents form an integral part of the oral examination, and that they are therefore covered by the secrecy referred to in Article 6 Annex III of the Staff Regulations. Moreover, reference was made to the European Ombudsman's decision in case 481/2001/IP, in which, according to the Commission, this secrecy requirement had been confirmed.

The Commission noted the complainant's reference to the European Ombudsman's draft recommendation in complaint 2097/2002/GG, and remarked that the complainant had received the evaluation sheet for his practical examination as well as the comments of the selection board. According to the Commission, the evaluation sheet contained all the explanations regarding the errors committed, thus enabling the complainant to avoid such errors in the future.

The Commission stated that two points should be noted:

(i) The practical examination took place the same day as the oral examination, for which reason the deliberations were covered by the secrecy appertaining to the selection boards.

(ii) Moreover, the correction of the practical examination had been made directly on the original examination script. The corrections and possible remarks added during the corrections were therefore inseparable from the examination paper itself.

According to the Commission, it was established case-law that the duty to give reasons does not imply that copies of the examination paper containing the selection board's corrections should be communicated to the applicants. The Commission referred to the Court's decision in the Innamorati case(2).

As regards the Ombudsman's draft recommendation in case 2097/2002/GG, the Commission stated that the complainant had failed to mention that the Commission had already committed itself to a practice of giving access to examination papers applicable to recruitment competitions organised after 1 July 2000. According to the Commission, this practice consisted of separating the individual evaluation sheets, on which each individual evaluator puts his or her marks, from the final evaluation sheet adopted by the selection board, and to give applicants (who so request) access to the latter. This practice had, according to the Commission, been respected in the present case.

The complainant's observations

The Commission's opinion was forwarded to the complainant, from whom the Ombudsman received no observations.

THE OMBUDSMAN'S DRAFT RECOMMENDATION

The draft recommendation

On 25 October 2004, the Ombudsman addressed the following draft recommendations to EPSO:

• EPSO should provide the complainant with a copy of his written examination paper.
• EPSO should furthermore reconsider its refusal to give the complainant access to the evaluation criteria, and give access unless valid grounds prevent their disclosure.

The draft recommendations were based on the following considerations:

1 Alleged failure to give access to the examination paper

1.1 The complainant alleged that EPSO had failed to give him access to his examination paper.

1.2 The Commission stated that the complainant could not be given a copy of his examination paper containing the written marks and comments of the evaluators.

1.3 The Commission referred to Article 6 of Annex III of the Staff Regulations, which establishes the secret nature of the work of the selection board, and to the decision of the Court in the Innamorati case(3). The Commission furthermore indicated that since the practical typing test had been organised the same day as the oral examination, the former was part of the oral examination and therefore the complainant could not receive a copy of his examination paper. The Commission referred to the European Ombudsman's decision on complaint 481/2001/IP in support of its position.

1.4 The Commission furthermore stated that its practice on access to competition documents implied that access is given - as in this case - to the final evaluation sheet.

1.5 The Ombudsman first noted that in the decision on complaint 481/2001/IP, it had been accepted that access to the minutes of the oral examination could be refused in that case. The present case did not, however, concern minutes of an oral examination, but a copy of a written examination paper. The fact that the practical test and the oral examination were held on the same day did not imply that they were inseparable. Part B. of the notice of competition described the practical test and the oral examination as two separate evaluation phases ('f' and 'b') with separate contents and marking methods.

1.6 With regard to the Commission's commitment to provide access to competition documents, the Ombudsman noted that this commitment was formulated as follows: "[t]he Commission welcomes the recommendation you made [...] and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination paper, upon request, from 1 July 2000 onwards" (letter from Commission President Prodi to the Ombudsman, dated 7 December 1999). The Ombudsman had subsequently dealt with cases where applicants appeared to have received copies of their examination papers as a matter of routine application of the Commission's new rules.

1.7 In the present case, the Commission put forward that the correction of the practical examination had been made directly on the original examination script, and that the corrections and possible remarks added during the corrections were therefore inseparable from the examination paper itself.

1.8 The Ombudsman noted that the competition here concerned was organised two years after the Commission began to give applicants access to their examination papers. The responsibility for adopting the necessary arrangements to ensure that such access could be given lay with the Commission. This implied a duty to take corrective measures when such arrangements had not been adopted. In the present case, the practical circumstances referred to by the Commission as a reason for not providing access should not have prevented it from taking measures to ensure that its above commitment could be respected.

1.9 On the basis of the above findings, the Ombudsman considered that the Commission had failed to justify why the applicant was not given a copy of his examination paper in accordance with the Commission's commitment to give applicants access to their marked examination papers. This constituted an instance of maladministration, and the Ombudsman therefore made the draft recommendation referred to above.

2 Alleged failure to inform the complainant about the evaluation criteria

2.1 The complainant alleged that EPSO had failed to inform him about the criteria used to mark the test. He claimed that he should be informed of the criteria used to mark the test, and referred to the Ombudsman's draft recommendation in complaint 2097/2002/GG. He stated that he wanted access so as to be able to improve his performance in future recruitment competitions.

2.2 The Commission stated that the evaluation criteria formed an integral part of the oral examination, and were therefore covered by the secrecy referred to in Article 6 of Annex III of the Staff Regulations. The Commission also stated that it was established case-law that the duty to give reasons for recruitment decisions was satisfied by communicating the number of marks to the applicant in question. The Commission referred to the Court's decision in the Innamorati case (1996)(4).

2.3 The Ombudsman had already examined the issue of access to evaluation criteria in his draft recommendation in complaint 2028/2003/(MF)PB, submitted to EPSO on 7 October 2004. In that case, EPSO and the Commission had taken the view that the decision in the Innamorati case obliged them to refuse access to the selection criteria under Article 4(3)(ii) Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents(5). In his draft recommendation, the Ombudsman made the following comments:

"As regards the Commission's view that it had to refuse access in the light of the Innamorati case, the Ombudsman considers it useful to quote the following paragraphs of the judgement:

'29 The criteria for marking adopted by the selection board prior to the tests form an integral part of the comparative assessments which it makes of the candidates' respective merits. They are designed to guarantee, in the candidates' own interests, a certain consistency in the board's assessments, especially where there is a large number of candidates. Those criteria are therefore covered by the secrecy of the proceedings in the same way as the selection board's assessments.

30 The comparative assessments made by the selection board are reflected in the marks it allocates to the candidates. The marks are the expression of the value judgments made concerning each of them.

31 Having regard to the secrecy which must surround the proceedings of a selection board, communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board's decisions are based.' (Emphasis added.)

It is clear from the above that the Innamorati case only concerned the duty to state reasons for individual decisions taken specifically in the context of recruitment competitions. The decision in the Innamorati case does not, therefore, concern the issue of access to documents. In the Ombudsman's view, the decision in the Innamorati case cannot therefore be invoked as a legal precedent obliging the institutions to keep selection criteria secret under Regulation 1049/2001.

The Ombudsman notes that recent decisions of the Court of First Instance appear to support this finding. In the Pyres case(6) and the Alexandratos and Panagiotou case(7), the Court of First Instance found that although the communication of the mark obtained by candidates in the various tests constitutes an adequate statement of the reasons on which the selection board's decision is based, this does not imply that a candidate who so requests cannot be informed about the selection board's selection criteria.

The Ombudsman furthermore notes that to allow access to selection criteria appears to be consistent with the European Union's policy and legislation on transparency and public access to documents, which have evolved significantly since the Court's decision in the Innamorati case in 1996.

In 1997, the Treaty of Amsterdam amended the Treaty on European Union, inserting the following principle into Article 1 of the Common Provisions of that Treaty:

'This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.' (Emphases added.)

The Treaty of Amsterdam also inserted Article 255 into the Treaty establishing the European Communities. Article 255 of the Treaty provides that:

'Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined [...]'.

Article 255(2) provides that '[g]eneral principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.'

On the basis of this provision, the Council and the Parliament adopted Regulation 1049/2001 regarding public access on 30 May 2001(8).

The preamble of Regulation 1049/2001 confirms that 'openness [...] guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system' (recital 2, emphases added), and that 'in principle, all documents of the institutions should be accessible to the public' (recital 11). Article 1(b) expressly provides that Regulation 1049/2001 is intended to 'establish rules ensuring the easiest possible exercise of this right'.

In the light of the above, the Ombudsman considers that EPSO and the Commission were wrong to consider that the decision in the Innamorati case obliged them to refuse access to the selection criteria under Article 4(3)(ii) Regulation 1049/2001. EPSO and the Commission therefore failed to give adequate reasons for refusing access. This constitutes an instance of maladministration, and the Ombudsman therefore makes the draft recommendation below.

The Ombudsman furthermore wishes to add that the exception contained in Article 4(3)(ii) does not appear to apply to the kind of document here concerned. Article 4(3)(ii) applies to 'documents containing opinions'. In the Ombudsman's view, a document containing selection criteria cannot be considered a 'document containing opinions'."

2.4 The Ombudsman considered that these considerations were equally relevant and applicable to the present case. On that basis, the Ombudsman considered that the reasons for not informing the complainant of the evaluation criteria were inadequate. This constituted an instance of maladministration, and the Ombudsman therefore made the draft recommendation referred to above.

EPSO's detailed opinion

In its opinion on the Ombudsman's draft recommendation, submitted jointly with the European Commission, EPSO stated inter alia that the selection criteria laid down by the selection board cannot be separated from the various instructions, recommendations and opinions that are given to the individual evaluators. It appeared to consider that all these documents form part of the preparatory works of the selection board and are therefore covered by the secrecy relating to the selection board's deliberations. EPSO also stated that all the documents are connected, and that partial access could therefore not be granted.

However, in order to allow the complainant better to understand the marks that he had been given, EPSO enclosed a copy of the complainant's examination paper containing the evaluators' handwritten notes. In a separate note, EPSO furthermore made detailed remarks on those corrections, explaining the requirements in the test. It also pointed out that the assessment of the mistakes appearing on the examination paper was contained in the evaluation sheet, a copy of which had already been sent to the complainant. EPSO emphasised that the release of the examination paper in this case was exceptional, and that it did not create a precedent for future such cases.

EPSO furthermore stated that it had started to examine the possibility of providing candidates with a more detailed evaluation sheet in future competitions, in order to allow them better to understand their marks. This detailed evaluation sheet would be provided with the copy of the examination paper.

The complainant's observations

EPSO's detailed opinion was forwarded to the complainant with an invitation to make observations. No observations were received from the complainant.

THE DECISION

1 Alleged failure to give access to examination paper

1.1 The complainant participated in competition COM/C/2/02, held to establish a reserve list of German-speaking typists. The complainant obtained 8 points in test (f), a typing test, and thereby failed to reach the pass mark, which was 10. On 30 July 2003, the complainant therefore wrote to the Commission to ask for clarifications regarding his mark, a review of the test and a copy of his examination paper. On 16 October 2003, the European Personnel Selection Office (EPSO) sent the complainant a copy of the evaluation sheet for his test and informed him that his test had been assessed as to completeness, layout, formatting and typing errors. EPSO however informed the complainant that it could not disclose the examination paper since it was covered by the duty to keep the proceedings of the Selection Board confidential, as required by article 6 of Annex III of the Staff Regulations. The complainant was dissatisfied with EPSO's answer and therefore lodged a complaint with the European Ombudsman.

1.2 The complaint was sent to EPSO for opinion. The opinion that the Ombudsman received was however written by the European Commission . In its opinion, the Commission stated that the complainant could not be given a copy of his examination paper since the latter contained the written marks and comments of the evaluators.

1.3 On 25 October 2004, the Ombudsman addressed a draft recommendation to EPSO, suggesting that EPSO should provide the complainant with a copy of his written examination paper.

1.4 In their detailed opinion on the draft recommendation, EPSO and the Commission enclosed a copy of the complainant's written examination paper to be sent to the complainant. They emphasised that the release of the examination paper in this case was exceptional, and that it did not create a precedent for future cases.

1.5 In the light of the above, the Ombudsman concludes that EPSO has accepted the Ombudsman's draft recommendation and that the measure taken by EPSO to implement it is satisfactory.

2 Alleged failure to inform the complainant about the evaluation criteria

2.1 The complainant alleged that EPSO had failed to inform him about the criteria used to mark the test. He claimed that he should be informed of the criteria used to mark the test, and referred to the Ombudsman's draft recommendation in 2097/2002/GG. He stated that he wanted access so as to be able to improve his performance in future recruitment competitions.

2.2 The Commission stated that the evaluation criteria were covered by the secrecy referred to in Article 6 of Annex III of the Staff Regulations. The Commission also stated that it was established case-law that the duty to give reasons for recruitment decisions was satisfied by communicating the marks to the applicant in question. The Commission referred to the Court's decision in the Innamorati case (1996)(9).

2.3 On 25 October 2004, the Ombudsman made a draft recommendation in which he recommended that EPSO should reconsider its refusal to give the complainant access to the evaluation criteria.

2.4 On 14 February 2005, EPSO, jointly with the Commission, submitted its detailed opinion on the Ombudsman's draft recommendation. EPSO stated that the selection criteria laid down by the selection board cannot be separated from the various instructions, recommendations and opinions that are given to the individual evaluators. It appeared to consider that all these documents form part of the preparatory works of the selection board and are therefore covered by the secrecy relating to the selection board's deliberations. EPSO also stated that all the documents are connected, and that partial access could therefore not be granted. However, in order to allow the complainant better to understand the marks that he had been given, EPSO enclosed a copy of the complainant's examination paper containing the evaluators' handwritten notes. In a separate note, EPSO furthermore made detailed remarks on those corrections, explaining the requirements in the test. It also pointed out that the assessment of the mistakes appearing on the examination paper was contained in the evaluation sheet, a copy of which had already been sent to the complainant.

2.5 The Ombudsman received no observations from the complainant.

2.6 The Ombudsman has carefully examined EPSO's detailed opinion, and notes the following:

2.7 As regards the complainant's claim for access to the selection criteria used by the selection board, it appears from EPSO's opinion that it has not felt able to grant access to those criteria. However, the Ombudsman also notes that EPSO, in its detailed opinion on the draft recommendation, enclosed a copy of the complainant's examination paper containing the evaluators' handwritten notes. EPSO stated that it enclosed this document specifically in order to allow the complainant better to understand the marks that he had been given. In a separate note, EPSO furthermore made detailed remarks on those corrections, and pointed out that the assessment of the mistakes indicated on the examination paper was contained on the evaluation sheet, a copy of which had already been sent to the complainant.

2.8 The Ombudsman has not received any observations from the complainant on EPSO's detailed opinion. The Ombudsman notes, however, that in his complaint, the complainant expressly mentioned that he wanted access so as to be able to improve his performance in future recruitment competitions. As noted above, EPSO has in the present case taken steps in order to give the complainant more detailed information to enable him to better understand why he did not pass the relevant test. In doing so, EPSO appears to have given the complainant information that is considerably more detailed than the information that EPSO has previously felt able to give to candidates. The Ombudsman takes the view that the detailed information provided by EPSO should normally help a candidate better to understand the marks that he or she was given. EPSO has accordingly taken an important step to give the complainant useful information on the marking of his examination paper. The Ombudsman therefore considers that there are no grounds for continuing his inquiry into the present part of the case.

2.9 The Ombudsman notes, however, that EPSO's detailed opinion raises important factual and legal issues of a more general nature. The Ombudsman has therefore decided to launch an own-initiative inquiry into the issue of granting candidates access to the selection criteria established by selection boards. I nformation on the outcome of the Ombudsman's own-initiative inquiry will be published on the Ombudsman's homepage (http://www.ombudsman.europa.eu).

3 Conclusion

With regard to the complainant's claim that he should be given access to his examination paper, the Ombudsman concludes that EPSO has accepted the Ombudsman's draft recommendation and that the measure taken by the EPSO is satisfactory. The Ombudsman therefore closes his inquiry into this part of the case.

With regard to the complainant's claim that he should be given access to the selection criteria, the Ombudsman concludes that there are no grounds to continue his inquiry into the present complaint. The Ombudsman has, however, decided to launch an own-initiative inquiry into the issue of granting candidates access to the selection criteria established by selection boards.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) The Ombudsman's draft recommendation in that case was that "[t]he Council of the European Union should allow the complainant to have access to her own marked examination paper."

(2) Case C-254/95 P Innamorati v Parliament [1996] ECR I-3423.

(3) Case C-254/95 P Innamorati v Parliament [1996] ECR I-3423.

(4) Case C-254/95 P Innamorati v Parliament [1996] ECR I-3423.

(5) Official Journal 2001 L 145, p. 43.

(6) Case T-72/01, Pyres v Commission [2001] ECR-SC 2003 IA-169, paragraphs 70 - 71.

(7) Case T-233/02, Alexandratos and Panagiotou v Council, judgement of 17 September 2003, paragraph 31.

(8) Official Journal 2001 L 145, p. 43.

(9) Case C-254/95 P Innamorati v Parliament [1996] ECR I-3423.