Dear Mr U.,
On 12 August 1997 you lodged a complaint with the European Ombudsman concerning the alleged irregularities which took place in the course of the written tests of open competition EUR/B/105 held by the European Commission on 13 December 1996. You had previously sent on 23 January 1997 another complaint (111/97/JMA) to the Ombudsman on the same subject-matter which had been declared inadmissible on the grounds that no previous administrative approaches had been made.
On 1 December 1997 I forwarded the complaint to the President of the European Commission. On 17 February 1998 the Commission sent its comments which I forwarded to you on 30 March 1998 with an invitation to make observations. I received your observations by letter of 15 April 1998.
I am writing now to let you know the result of the inquiries that have been made.

BACKGROUND

The complaint
In his first letter of 23 January 1997 to the Ombudsman, the complainant pointed out that several irregularities had taken place during the written tests of general competition EUR/B/105 held by the Commission in Madrid on 4 June 1996. This letter was registered as a complaint by the Ombudsman with reference number 111/97/JMA.
The complainant stated that some questions in the selection test, and the procedure followed during the competition were discriminatory. In the view of the complainant, none of the possible answers for one of the questions (number 2) in section A on specific knowledge were correct. Moreover, as regards section C on knowledge of a second Community language, the explanatory test for candidates who chose English contained many mistakes. As a result, the time initially given to complete this part of the test had to be extended by an additional five minutes. Lastly, in section D, relating to General Accounting, one of the questions could not be answered on the basis of the information given to candidates.
Since the complainant, like some other candidates, was disturbed by these mistakes, he considered that the Jury had discriminated him in the final marking of the exams. However, in view of the fact that no reference or information was included in the complaint which could lead to believe that any previous approached towards the Selection board had been made, the Ombudsman had to declare the complaint inadmissible on the basis of article 2, paragraph 4 of his Statute(1).
In reply to the letter of the Ombudsman declaring complaint 111/97/JMA inadmissible, the complainant furnished new information which showed that in fact he had already raised these objections unsuccessfully with the Commission. On the basis of this information, the Ombudsman opened a new case and pursued an inquiry into the matter.

THE INQUIRY

The Commission's opinion
The European Commission's comments on the complaint are in summary the following:
Mr U. had applied to open competition EUR/B/105 organized jointly by the European Parliament, the European Commission and the Court of Auditors. The competition was to provide a reserve list for assistant administrators (level B5/B4) Finance/Accounting. The notice of the competition was published in the OJ C 159A of 4 June 1996, and the Commission was in charge of its organization, acting as the Appointing Authority.
On the basis of the information provided by the applicant, the Commission established an initial list of 4.999 suitable candidates. After a preliminary screening by the selection board, 2.507 of these candidates were admitted to the written tests. The name of the complainant was among them, and he was therefore invited to participate in the written tests which were held in Madrid.
The Commission explained that this written stage of the competition consisted of a series of pre-selection tests -tests a, b and c- followed by a written composition -test d. The pre-selection tests were designed to evaluate the candidates' knowledge in areas relating to specific knowledge of financing and accounting, European Union policies, and a second Community language. The evaluation of the written composition would only be done for the 400 best-placed candidates who had successfully passed the minimum mark for each of the pre-selection tests.
The complainant did not reach the minimum mark required in test (c) on linguistic knowledge, and was therefore excluded from the final stage of the competition. After having received the letter of the Selection board with the results of the preliminary tests, Mr U. complained to the Commission, stating that there had been a series of irregularities in the exam, namely that there was no possible reply to one of the questions in test (a), and that there had been multiple errors in test (c).
In its reply of 24 April 1997, the Commission indicated that as regards question number 2 of test (a), the Selection board had evaluated it and found no mistake. As for the problems relating to test (c) on linguistic knowledge, some minor mistakes relating to the numbering had been identified prior to the exam. Since it affected all candidates, it was decided to grant some extra time (five minutes) to all candidates, so that the principle of equal treatment be respected.
The correction of the test was done twice by optical reader to ensure that the results were correct.
The complainant's observations
I forwarded the Commission's comments to the complainant with an invitation to make observations. The reply from the complainant indicated that despite the Commission's explanations, candidates who chose English as their second Community language were at a disadvantage when compared with the rest of the candidates.

DECISION OF THE EUROPEAN OMBUDSMAN

On the basis of the information provided by the complainant and the observations submitted by the European Commission, the Ombudsman has reached the following conclusions:
1.1. The main irregularities denounced by the complainant related to the content of the tests and the procedure followed in carrying out open competition EUR/B/105.
1.2. As regards the content of a particular question, the Commission has underlined that the Selection board, having reviewed the question, did not find any element which might cast a doubt on the clarity of the possible replies. The complainant has not contested this argument.
As established by Community case-law, selection boards have considerable discretion in defining the detailed content of a test, provided that such content is confined within the limits laid down in the Notification of the Competition, or is consistent with the purposes of the test or of the competition (2). In the present case, no elements have been brought to the attention of the Ombudsman to make him conclude that in the formulation of a particular question the Selection board of the competition could have exceeded its discretion. The Ombudsman therefore finds that there is no evidence of maladministration in relation to this aspect of the case.
1.3. Secondly, in relation to the fairness of the procedure, it should be assessed whether candidates who took the English test were discriminated against in relation to the other candidates, in light of the fact that some extra time was given by the selection board.
In the definition of the arrangements for an open competition, selection boards have also a considerable margin of discretion. Under current Community case-law the arrangement for the conduct of a test fall under the discretionary power of the selection board, except to the extent necessary to ensure that the candidates are treated equally and that the choice made from among them by the selection board is objective(3).
By extending the time initially allocated for the linguistic test, candidates using the English text were compensated for the time lost in checking potential mistakes in the text, and hence could complete their tests. Given the very nature of this type of multiple-choice exam, it is not apparent that other candidates who may have completed their test within the initial time would have benefited from a short time extension. Therefore, the arrangements adopted by the selection board of the competition to solve the problems posed by one of the versions of the test, do not appear to impinge on the principles of equal treatment and objective choice of candidates.
The Ombudsman therefore finds that there is no evidence of maladministration in relation to this aspect of the case.

CONCLUSIONS

On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission.
The Ombudsman has therefore decided to close the case.
The President of the Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN
cc:
Mr Santer, President of the European Commission

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(1) "A complaint [...] must be preceded by the appropriate administrative approaches to the institutions and bodies concerned"

(2) Case T-132/89, Vicenzo Gallone V. Council, [1990] ECR II-0549; par. 27 (see reference to existing case-law mentioned by the Court).

(3) Id. supra case T-132/89, par. 27.