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Decision of the European Ombudsman on complaint 763/2000/GG against the European Commission


Strasbourg, 8 May 2001

Dear Mr K.,

On 8 June 2000, you lodged a complaint with the European Ombudsman against the European Commission which concerned the European Commission's refusal to grant you access to the minutes of your oral examination in competition COM/A/11/98.

On 22 June 2000, I forwarded the complaint to the Commission for its comments.

On 12 October 2000, I received the Commission's opinion, and I forwarded it to you on 17 October 2000 with an invitation to make observations, if you so wished. On 2 November 2000, you sent me your observations on the Commission's opinion.

On 16 November 2000, I wrote to the Commission in order to ask for further information in relation to your complaint. I also asked the Commission for access to your file.

On 30 January 2001, my services inspected the Commission's file on your case. On that occasion, the Commission's agents refused to allow my services to take copies of the documents in your file. Further to a letter I sent to the President of the Commission on 19 February 2001, the Commission forwarded copies of the relevant documents to me on 26 February and 6 March 2001.

The Commission replied to my request for further information on 1 February 2001, and I forwarded this reply to you on 8 February 2001, with an invitation to submit observations, if you so wished, by 31 March 2001 at the latest. No observations were received by me. However, you telephoned on 12 March 2001 in order to discuss the matter with my services.

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


THE COMPLAINT

The complainant took part in and passed competition COM/A/11/98 organised by the European Commission. However, he narrowly failed to obtain the number of points that were needed to make it on to the list of the 80 best candidates. The complainant considered that this was mainly due to the fact that he had obtained a rather poor mark at the oral examination. The complainant wonders whether this resulted from the circumstance that for most of the examination he had not been allowed to communicate directly with the examiners in a language they understood (English or French) but had to speak German and have his replies translated. He therefore asked to be allowed to inspect the minutes of the oral examination. This was refused on the grounds of confidentiality.

In his complaint to the Ombudsman, the complainant claimed that the Commission should grant him access to the minutes of the oral examination.

THE INQUIRY

The opinion of the Commission

In its opinion, the Commission made the following comments:

The Selection Board had compared the merits of all the candidates invited to an oral examination on the basis of the assessment criteria laid down by it. Interpreters had been present in accordance with usual practice in order to translate the questions where necessary so as to guarantee that candidates received equal treatment. Some candidates preferred to do without the help of the interpreters. All replies to the questions asked were however given in the mother tongue or main language of the candidate.

Article 6 of Annex III of the Staff Regulations, according to which the proceedings of the Selection Board shall be secret, was not at all affected by the principle of transparency. This provision enabled the Selection Board to assess the merits of the candidates in full independence. The Commission referred in this context to the Guide to the obligations of officials and other servants of the European Parliament (Code of conduct)(1), according to which the proceedings of a competition selection board had to be kept secret as a matter of professional secrecy (cf. section I.C.3 of the Code).

The complainant's observations

In his observations, the complainant pointed out that according to the Commission the oral examination had served the purpose of allowing a supplementary assessment of the candidate's knowledge of the institutions and policies of the EU. However, only one of the questions asked related directly to the institutions and policies of the EU. All the other questions served the purpose of assessing the personality of the candidate. According to the complainant, he had been asked for his personal views on the issue of the EU's enlargement and had then been told that his (critical) view did not correspond to the official line of the Commission. The complainant also claimed that during the examination which lasted about 45 minutes he had been given the opportunity to express himself in French and English for around 15 minutes although he had indicated that he mastered five foreign languages. The complainant who claimed to master French like a mother tongue found it hard to believe that his knowledge of languages should have been inferior compared to those of other candidates. He also claimed that he had not been informed that he could resort to the help of the interpreters for the purpose of understanding the questions that were put to him.

The complainant stressed that he did not criticise the way in which the oral examination had been carried out as such. However, since he believed that the examination had served other purposes than the one indicated by the Commission and since he could not exclude that he had been 'punished' for his critical views regarding the current enlargement exercise, the complainant considered it to be of decisive importance for him to know what the criteria applied by the Selection Board were. Access to the minutes of the Selection Board could in his view answer these questions. The complainant denied that such access would jeopardise the independence of Selection Boards and regretted that notwithstanding its repeated commitments the Commission had opted for a formalistic approach in his case.

Further inquiries
Request for further information

In view of the above, the Ombudsman concluded that he needed further information in order to deal with the complaint. He therefore asked the Commission (1) to explain how candidates had been informed of the possibility that they could use the interpreters in order to have the questions put to them translated, (2) to give details as to how the minutes of oral examinations were drawn up, particularly in so far as their contents were concerned (e.g. the extent to which questions and answers were noted in these minutes) and (3) to specify the reasons why it considered that these minutes should be kept secret, including any factual parts (e.g. a summary of the questions asked and the answers given) they might contain.

The Commission's reply

In its reply, the Commission made the following comments:

Candidates had been informed of the presence of interpreters before the oral examination started. In the case of the complainant, the examination served the purpose of completing the appraisal of the candidate's aptitude and to his knowledge of the institutions and policies of the EU. The linguistic knowledge had already been largely examined at the preselection tests and the written examination. Besides, the appraisal at the oral examination was based on the contents of the replies, the capacity to reason and the logical approach that these replies manifested.

In so far as the 'minutes' of the oral examination were concerned, the Selection Board established, prior to the examinations, an evaluation sheet ('fiche d'évaluation') that was then used for each candidate. This sheet comprised the questions put to the candidate and the evaluation and appraisal by the Selection Board, but not the answers given by the candidate. This practice applied to all oral competitions with the exception of those for interpreters where tape recordings of the oral examination were made in view of the specific nature of the tasks of these persons.

The Commission considered that these evaluation sheets were confidential and could not be divulged to candidates on account of Article 6 of Annex III of the Staff Regulations and the relevant case-law of the Community courts.

The complainant's observations

No written observations on this reply were received from the complainant.

Inspection of the file

On 30 January 2001, the Ombudsman's services inspected the Commission's file. The following documents relevant to the complaint were found in the file: (1) An evaluation sheet (containing information on inter alia the members of the Selection Board, the date and time of the oral examination, the areas evaluated and the corresponding marks granted), (2) a further evaluation document (setting out the allocation of time during the examination) and (3) a note taken by a secretary present at the examination (recording the questions that had been asked during the oral examination).

THE DECISION

1 Failure to grant access to the minutes of the oral examination

1.1 The complainant took part in and passed competition COM/A/11/98 organised by the European Commission. However, he narrowly failed to obtain the number of points that were needed to make it on to the list of the 80 best candidates. The complainant claims that the Commission ought to allow him to inspect the minutes of the oral examination.

1.2 The Commission essentially relies on Article 6 of Annex III of the Staff Regulations, according to which the proceedings of the Selection Board shall be secret.

1.3 In its reply to the Ombudsman's request for further information, the Commission explained that prior to the oral examinations, the Selection Board established an evaluation sheet ('fiche d'évaluation') that was then used for each candidate. According to the Commission, this sheet comprised the questions put to the candidate and the evaluation and appraisal by the Selection Board, but not the answers given by the candidate.

1.4 Having inspected the Commission's file, the Ombudsman concludes that there appears to be no set of 'minutes' of the oral examination but only an evaluation sheet containing information on inter alia the members of the Selection Board, the date and time of the oral examination, the areas evaluated and the corresponding marks granted. This document thus does not merely record the replies given by the candidate and assess their correctness but contains the overall assessment of the candidate by the Selection Board. The Ombudsman therefore considers that the reasons that have led him to propose to the Commission to give candidates access to their marked examination papers(2) are not directly applicable in the present case. In these circumstances, the Commission's view that the evaluation sheet setting out the appraisal and observations of the Selection Board should be considered as covered by the duty to keep the proceedings of the Selection Board confidential, as laid down by Article 6 of Annex III of the Staff Regulations, appears to be acceptable.

1.5 The Ombudsman considers, however, that this duty of confidentiality does not extend to the two other documents relating to the complainant that are to be found in the Commission's file. First, the further evaluation document setting out the allocation of time during the examination contains information on the structure of the examination and the time to be allocated to its various parts. The Ombudsman is not aware of any reasons why this information ought to be regarded as confidential. Second, the note recording the questions that were asked during the oral examination clearly cannot be regarded as confidential. The Ombudsman would like to note that these questions were not included in the evaluation sheet as the Commission indicated in its reply to the request for further information.

1.6 Whilst the Ombudsman considers that these two documents could thus have been made accessible to the complainant, regard should be had to the fact that the latter has explained that he did not criticise the way in which the oral examination had been carried out but wished to know what the criteria applied by the Selection Board had been. However, none of the two documents discussed here contains information of the type for which the complainant is searching. The fact that the Commission failed to make these two documents available to him thus have no bearing on the complainant and his claim.

1.7 On the basis of the above, there appears to have been no maladministration on the part of the Commission.

2 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, it appears that there was no maladministration on the part of the European Commission. The Ombudsman therefore closes the file.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN


(1) OJ C 97 of 5 April 2000, p. 1.

(2) Cf. Special Report from the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedures, OJ 1999 C 371, p. 12.