Dear X,
On 31 December 1998, you addressed a complaint to the European Ombudsman concerning Open Competition EUR/A/121 organised by the Council of the European Union, the Economic and Social Committee and the Committee of Regions. In your complaint you alleged that the Selection Board had failed to comply with the Notice of Competition published in the Official Journal in so far as the oral exam was concerned.
On 5 February 1999, I forwarded your complaint to the Council of the European Union. The Council sent its opinion on 25 May 1999, and I forwarded it to you on 17 June 1999, with an invitation to make observations. On 13 July 1999, I received your observations on the Council's opinion.
I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

The complainant took part in Open Competition EUR/A/121 organised by the Council of the European Union, the Economic and Social Committee and the Committee of Regions. Having succeeded at the pre-selection tests and the written tests, the complainant was invited to the oral exam which was held on 30 September 1998.
According to the Notice of Competition published in the Official Journal (1), the oral examination had the purpose of examining both the knowledge and the linguistic skills of a candidate:

"(b) Oral tests

1. Interview to assess the candidate's general and professional knowledge and his ability to adapt to an international environment, his motivation and his willingness to work as part of a team in sometimes difficult circumstances.

Marks: out of 40.

2. Interview to assess the candidate's knowledge of languages. Knowledge of more than one official language of the Communities will be taken into account for the purposes of marking.

Marks: out of 20."

By a letter of 19 October 1998, the complainant was informed that the Selection Board had decided not to include complainant's name in the list of successful candidates since the complainant had only achieved 10 out of 20 points at the second oral examination whilst the minimum required for this test had been 12 points.
In the complaint, the complainant argued that contrary to the Notice of Competition the oral exam had not been divided into two parts. The complainant claimed that it was not linguistic competence but knowledge which was examined during the oral exam. The complainant also alleged that the Selection Board did not take into account the fact that apart from German and English the complainant also had a knowledge of French.

THE INQUIRY

The complaint was sent to the Council for its comments. In his letter, the European Ombudsman asked the Council to provide him with a copy of the appraisal of the Selection Board.
The Coouncil's opinion
In its opinion, the Council made the following comments with regard to the complaint:
The oral examination was not divided into two separate chronological sections. However, the Notice of Competition published in the Official Journal did not require such a division. Instead, the Selection Board - in accordance with the Notice of Competition - divided the test into two parts by content, so that the various questions designed to assess the general and professional knowledge and the candidate's ability to adapt to an international environment were in fact asked in different languages and answered by the candidate according to his or her language knowledge. According to the Council, no other approach would fulfil the purpose of the oral test and it would be difficult to see how a language test could be carried out if not by means of questions related to professional knowledge. The Council stressed that the relevant competition was a selection procedure for the recruitment of administrative officials and not of translators or interpreters.
The allegation that the complainant's knowledge of a second foreign language apart from English had not been taken into account could not be sustained. In this context the Council drew attention to the fact that according to the complainant the oral test was held in three languages (German, English and French).
As to the Ombudsman's request for a copy of the test report, the Council considered that this document was subject to the strict rules of confidentiality of tests.
The complainant's observations
In observations, the complainant maintained the complaint. The complainant reiterated the view that according to the Notice of Competition two separate oral tests ought to have taken place. The complainant also continued to believe that the Selection Board had not taken into account the knowledge of French as a positive factor.

THE DECISION

1 Lack of division between the two parts of the oral test and failure to assess the complainant's linguistic skills
1.1 In the complaint lodged on 31 December 1998, the complainant alleged that contrary to the Notice of Competition published in the Official Journal the oral test had not been divided into two separate parts and that it was not linguistic competence but knowledge which was examined during the oral exam.
1.2 The Council of the European Union replied that the Notice of Competition had not prescribed the test to be divided into two separate chronological sections and that the Selection Board had divided the test into two parts by content. Thus the various questions designed to assess the general and professional knowledge and the other qualities referred to in the Notice of Competition were asked in different languages and answered by the candidate according to language knowledge. The Council argued that no other approach would fulfil the purpose of the oral test and that it was difficult to see how a language test could be carried out if not by means of questions related to professional knowledge.
1.3 The Notice of Competition provides that the oral tests are composed of two parts which for the sake of convenience may be referred to as the substantial and the linguistic parts respectively. The first one serves to assess the candidate's general and professional knowledge and his ability to adapt to an international environment, his motivation and his willingness to work in sometimes difficult circumstances. The second one serves to assess the candidate's knowledge of languages. The view of the Council according to which these oral tests may be organised as a single interview which is divided into two parts by content would not appear to be incompatible with the wording of the Notice, provided that the substantial and the linguistic part are assessed separately. However, it is clear that in the present case the Selection Board did indeed distinguish between these two parts of the oral tests when it came to appraising the complainant's performance. The Ombudsman thus concludes that the fact that the Selection Board did not divide the oral tests into two separate tests which followed each other in chronological order does not represent maladministration.
1.4 As to the complainant's allegation that the Selection Board failed to assess language skills as such but rather examined knowledge, the Council's argument that it makes sense to examine a candidate's knowledge of languages by means of questions related to professional knowledge appears reasonable. The Communities have a definite interest in recruiting candidates who possess the linguistic skills necessary to their future tasks. The fact that the Selection Board examined the complainant's linguistic skills by asking questions related to professional knowledge therefore does not represent maladministration. Furthermore, it is undisputed that the oral test was held in the languages indicated by the complainant in the complainant's application (German, English and French) and that the Selection Board assessed the complainant's knowledge of languages on this basis.
2 Failure to take into account the complainant's knowledge of French
2.1 The complainant alleged that the Selection Board had not taken into account the fact that apart from German and English the complainant also had a knowledge of French.
2.2 The Council replied that according to the complainant the oral test was held in three languages (German, English and French).
2.3 According to the complainant, the oral examination was carried out in German, English and French. The Selection Board therefore necessarily was aware of the fact that the complainant had a knowledge of French. Since there are no indications that the Selection Board should have failed to take this fact into account when it appraised the complainant's performance, the Ombudsman concludes that there is no need for him to inspect the report on the oral test drawn up by the Selection Board.
3 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Council of the European Union. The Ombudsman has therefore decided to close the case.
The Secretary-General of the Council of the European Union will also be informed of this decision.

FURTHER REMARK

The European Ombudsman considers it useful to make a further remark.
For the reasons given above there was no need for the European Ombudsman to continue his inquiries and inspect the report on the oral test drawn up by the Selection Board. However, the European Ombudsman wishes to stress that, in so far as the European Ombudsman's inquiries are concerned, he does not agree with the view expressed by the Council that such documents are protected by strict confidentiality and cannot be made accessible. It is useful to recall that Article 3 (2) of the Decision of the European Parliament of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties (2) obliges the Community institutions and bodies to supply the Ombudsman «with any information he has requested of them and give him access to the files concerned ». Such information or access may only be refused «on duly substantiated grounds of secrecy ». The European Ombudsman considers that this exception does not cover documents in which the appraisal, by the Selection Board, of a candidate taking part in a competition is laid down.
Yours sincerely
Jacob Söderman

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(1) OJ 1996 C 363A page 8

(2) OJ 1994 L 113 page 15