Dear Mr G.,

On 29 January 2002, you made a complaint to the European Ombudsman together with Mr Ö. concerning open competition COM/A/5/01.

On 18 February 2002, I forwarded the complaint to the President of the European Commission. The Commission sent its opinion on 8 May 2002. I forwarded it to you with an invitation to make observations, which you sent on 29 July 2002.

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

THE COMPLAINT

The complainants, two Swedish nationals, lodged a complaint with the European Ombudsman in January 2002 against the European Commission. In July 2001, the complainants had participated in the preselection tests of open competition COM/A/5/01 for internal auditing but had failed. By letter of 27 August 2001, the complainants sent an appeal to the Commission concerning the quality and formulation of the tests. The Commission replied by letter of 3 October 2001. The complainants sent a new letter to the Commission on 10 November 2001, to which the Commission replied on 28 November and 13 December 2001. As the complainants were not satisfied with the answers provided by the Commission, they turned to the Ombudsman.

The complainants stressed that a well-functioning internal audit is essential to the European administration. That is also why the recruitment of internal auditors must be correct and fitted to its purposes. In general, the complainants put forward that tests (a) and (b) of the preselection tests contained flaws and translation errors. As regards test (a), it lacked reference to an internal audit framework and had a distinct Anglo-Saxon character. Both tests (a) and (b) contained translation errors and inconsistencies in Swedish. The quantitative part of test (b) lacked validity. Further, the exam was held during the Scandinavian peak holiday period and the time between the invitation letter and the actual exam date was short and fell within the normal holiday period.

In their letters of appeal to the Commission, the complainants put forward extensive and detailed comments to the flaws and translation errors of the different questions in the tests.

In summary, the complainants alleged that tests (a) and (b) of the preselection tests contained flaws, in particular in relation to what audit standards were referred to and the Swedish translations of the tests. They further alleged that the Commission failed to reply adequately to their letters of appeal.

The complainants claimed that tests (a) and (b) of the preselection tests should be annulled. They also claimed complete answers from the Commission to the issues raised in the letters of appeal.

THE INQUIRY

The Commission's opinion

In its opinion, the Commission stated that the complainants participated in open competition COM/A/5/01 for the recruitment of principal administrators in the field of internal auditing. The notice of the competition was published in the Official Journal on 5 April 2001. The preselection tests took place on 6 July 2001. By letter of 15 August 2001, the complainants were informed that they had not been admitted to the written test.

On 27 August 2001, the complainants addressed a letter to the Selection Committee of the competition, requesting that parts of the preselection tests should be reconsidered. They addressed in particular the following points: (i) The validity of test (a) was insufficient. Several questions dealt with accountancy matters, outside the core competencies of public auditors. The test also lacked reference to any internal audit framework and had a distinct Anglo-Saxon character. (ii) Test (b) also lacked validity. The complainants drew the attention to the fact that all candidates should have at least 12 years of professional experience and they therefore questioned the utility of a numerical reasoning test. (iii) Tests (a) and (b) contained translation errors and inconsistencies in the Swedish language. (iv) The preselection tests took place during the month of July, the normal holiday period in Sweden. Considering the short period between the notification and the test date, the complainants considered that Scandinavian candidates might not have had the chance to receive the notification before the actual test took place.

The Commission replied to the complainants by letter of 3 October 2001. Regarding the audit standards, the Commission did not believe that the correct answer would have been different if different standards had been referred to. Moreover, a reference to a particular set of standards would have created a risk of discrimination. Concerning the accounting knowledge, the Commission stated that even if detailed knowledge of accounting is outside the core competence of certain kind of auditors, all auditors should have a basic knowledge. The questions relating to accounting had been of a basic level. As regards the testing of professional experience, the Commission put forward that experience is no guarantee of verbal and numerical reasoning ability and stressed that the two requirements were intentionally cumulative. As far as the quality of the translations was concerned, translations had been carried out by the Commission's translation service and checked with the Selection Committee. Finally, it was put forward that the timing of the examination was announced to all candidates in the initial publication of the notice of competition in April 2001.

The complainants sent an additional letter on 10 November 2001 maintaining their claims. The Commission replied on 13 December 2001.

In its opinion, the Commission put forward the following additional comments to the complainants' arguments.

Test (a) consisted of a series of multiple-choice questions to assess the candidates' specialised knowledge in relation to duties described in section II of the notice of competition. The Commission considered that the test corresponded to the description in the notice. Regarding the audit standards, the Commission was of the view that irrespective of national context, the answer would be equally valid. Concerning accounting knowledge, the Commission considered that these questions incontestably fell within the field of internal auditing. A test designed to assess the knowledge of an internal auditor might very well contain basic accounting questions.

Test (b) consisted of a series of multiple-choice questions to assess the candidates' general ability to work within the institution. Due to the principle of mobility, the civil servants are likely to carry out very different tasks in the course of their careers, which means that a civil servant must be able to adapt to different situations and to undertake different functions. The verbal and numerical test aims at complementing the other tests by assessing the general ability. The Commission also pointed out that the purpose of the competition is not only to verify the abilities acquired by the candidates during their professional experience but also to select the best candidates among those having such experience.

As far as translations were concerned, the Commission stated that they were performed by its translation service, assisted by members of the Selection Committee and specialised linguistic assessors. For the multiple-choice questions (test (a) and (b)), only one answer was correct. It was inevitable that the translations reflected slight but insignificant nuances in the different languages. The Commission had reviewed the examples given by the complainants and had not found any element that would cast doubt on the clarity of the correct answers to those questions in Swedish.

The competition was open to candidates from all Member States and the preselection tests took place on the same date in several places throughout the Union. The nature of a competition and the principle of equal treatment of all candidates require tests not only to be identical but also to be held at the same time and in the same way. Moreover, in the notice of competition published in April 2001, the timetable foresaw the month of July for the preselection tests.

As the Commission has informed the complainants about their results and has replied to their questions, it was of the view that it had provided the complainants with all the necessary information in relation to the competition. The Commission also underlined that it was established case law that the Selection Committee enjoys a considerable discretion when arranging competitions and deciding on the detailed content of the tests.

The complainant's observations

In their observations, the complainants maintained their complaint and put forward detailed comments on the Commission's opinion. They further called on the Ombudsman to undertake an impartial analysis. The complainants were disappointed at the poor opinion submitted by the Commission that did not provide any argumentation or answers on the substance of the complainants' questions.

THE DECISION

1 The quality of the preselection tests

1.1 The complainants participated in open competition COM/A/5/01 for internal auditing but failed the preselection tests. They alleged that tests (a) and (b) of the preselection tests contained flaws, in particular in relation to what audit standards were referred to and the Swedish translations of the tests.

1.2 The Commission provided its views on as to why it considered that tests (a) and (b) were valid, why the translations into Swedish had been adequate and commented on the date of the preselection tests. It concluded that it had replied to the complainants' questions and underlined the considerable discretion that the Selection Committee enjoys when arranging competitions and deciding on the detailed content of the tests.

1.3 The Ombudsman notes that it is established case law that the Selection Committee enjoys a wide margin of discretion as regards the arrangement for and the detailed content of the tests provided for within the framework of a competition(1). It is also established case law that the Selection Committee enjoys a wide margin of discretion as regards the details and the content of the tests to be held in a competition(2). The detailed content of a test is not open to review, unless it exceeds the limits laid down in the notice of competition or conflicts with the purposes of the test or of the competition(3).

1.4 Based on the review that the Ombudsman can carry out in the present case, the Ombudsman does not consider that the Commission in its choice of questions for the preselection tests exceeded the limits of the notice. Nor did the questions of the tests conflict with the purposes of the test or of the competition. Furthermore, the Commission did not exceed its legal authority as regards the arrangement of the tests as far as translations and the date of the tests are concerned. There is therefore no maladministration as regards this aspect of the case.

2 Adequate replies

2.1 The complainants sent letters to the Commission on 27 August and 10 November 2001 and the Commission replied by letters of 3 October and 13 December 2001. The complainants alleged that the Commission failed to reply adequately to their letters of appeal.

2.2 The Commission explained the replies that had been sent to the complainant and was of the view that it had replied to their questions and had provided all the necessary information.

2.3 The Ombudsman notes that the Commission did reply to the complainants' letters. The Ombudsman holds that, on the basis of the responsibilities conferred on the Selection Committee, the Commission's letters adequately answered the questions put forward by the complainant. There is therefore no maladministration as regards this aspect of the case.

3 The complainants' claims

3.1 The complainants claimed that tests (a) and (b) of the preselection tests should be annulled. They also claimed complete answers from the Commission to the issues raised in the letters of appeal. Following the conclusions arrived at in points 1 and 2 above, the complainants' claims could not be met.

4 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the Commission. The Ombudsman therefore closes the case.

The President of the Commission and Mr Ö will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) See case T-132/89, Gallone v. Council, [1990] ECR II-549, paragraph 27.

(2) See joined cases 64, 71 to 73 and 78/96, Sergio and others v. Commission, [1988] ECR 1399, paragraph 22 and case T-156/89, Valverde Mordt v. Court of Justice, [1991] ECR II-407, paragraph 121.

(3) See footnotes 1 and 2.