Decision of the European Ombudsman on complaint 481/2001/IP against the European Commission

Dear Mr X,

On 26 March 2001, you lodged a complaint against the European Commission concerning your participation in competition COM/A/11/98 organised by the institution and published in the Official Journal C 97 of 31 March 1998.

On 14 May 2001, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 12 July 2001. I forwarded it to you with an invitation to make observations, which you sent on 27 September 2001.

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

THE COMPLAINT

X participated in competition COM/A/11/98 organised by the European Commission and X passed it. However, X was not among the 80 best candidates included in the reserve list.

The Selection Board's decision was notified to X on 17 April 2000. On 10 May 2000, X wrote to the President of the Selection Board. X expressed some concerns regarding the development of the oral examination test and the rather poor mark obtained, i.e 26/50 when the minimum to pass the test was 25/50, in comparison with the high mark obtained at the preselection and at the written tests. X also pointed out that, although X participated in a competition for assistant administrators (category A 8) for which no professional experience was required, X had an excellent curriculum vitae. X provided both professional and academic experience, namely in the field of regional policy and structural funds. X argued that during the oral examination no reference was made by the Selection Board to these matters whereas, according to X, other candidates were asked questions relating to their past experience and skills. Moreover, the knowledge that X has of the Portuguese language was not tested.

X therefore asked the Selection Board (i) to provide X with the criteria and parameters used during the examination procedure; (ii) if the Selection Board made a comparative assessment of all candidates; (iii) to provide X with the list of those candidates who had been admitted to the oral examination and the names and nationalities of candidates who had been included in the reserve list.

By letter of 6 June 2000, the Commission pointed out that the complainant was duly informed of the results in the letter of 14 April 2000. The Commission also stressed that the Selection Board complied with all the provisions laid down in the notice of competition. As regards the request made by the complainant to be given the criteria and parameters used during the examination procedures and the list of candidates who had been admitted to the oral test, the Commission refused to provide such information on the basis of the confidentiality of the works of the Selection Board. Furthermore, the institution informed the complainant that the reserve list would be published in the Official Journal.

On 7 July, 4 August, 29 September and 9 November 2000, there was a further exchange of correspondence between the complainant and the Commission. In its letter of 4 August 2000, the Commission referred to the one of 6 June 2000, in which all the information which were not in breach of the principle of confidentiality had been communicated to the complainant. It also stressed that the reserve list including the 80 best candidates was finally published in the Official Journal C 175 of 24 June 2000. In the reply of 29 September 2000, the complainant asked to have access to the minutes of the oral examination of the complainant and the classification of candidates admitted to the oral test. Since X did not agree with the Commission's position, X complained to the Ombudsman.

The complainant alleged that the Selection Board did not carry out the oral test properly because it did not ask X questions about the previous experience of X, nor did it test X's knowledge of Portuguese. The complainant also claimed that X should be informed of the criteria used by the Selection Board and that X should be given access to the minutes of X's oral test.

THE INQUIRY

The Commission's opinion

In its opinion on the complaint, the Commission made in summary the following comments:

Before comparing the merits of the candidates admitted to an oral test, the Selection Board agrees on the assessment criteria which will apply. The Selection Board carried out the selection procedure in accordance with the notice of competition that at point C(g) foresees that the oral test consisted of an interview with the Selection Board to enable it to complete its assessment of the candidate's suitability to carry out the duties described at point II in a multicultural environment. The interview will also focus on the candidate's knowledge of the institutions and policies of the European Union and on his/her knowledge of languages.

As regards the complainant's request to have access to the minutes of X's oral test, the Commission pointed out that its refusal was justified on the basis of Article 6 of Annex III of the Staff Regulations, according to which the proceedings of the Selection Board shall be secret to guarantee full independence of the Selection Board when assessing the candidates. Neither the Commission's decision of public access to documents of 8 February 1994, nor the Code of Good administrative behaviour(1) prevails over the provisions of the Staff regulations, which could be modified only following the procedure foreseen by the Treaty for its revision.

The Commission pointed out that the individual evaluation sheet of the oral test is covered by the secret governing the Selection Board's work and it was therefore not possible to disclose it to the complainant. However, the Commission sent the Selection Board's report on the complainant's oral examination as a confidential document for the Ombudsman's information.

The Commission then gave some statistical information regarding the open competition. It was carried out with the so called "système de cascade". 320 candidates were selected after the preselection test, 160 were invited to take the oral test and 80 candidates were finally put on the reserve list. The complainant succeeded in all the tests but the complainant's total mark did not allow X to be among the 80 best candidates which have been put on the reserve list.

Furthermore, the institution pointed out that no information concerning the candidates invited to the oral test could be disclosed, since they are part of the work of the Selection Board and therefore should remain secret, as foreseen by Article 6 of annex III of the Staff Regulations. Furthermore, the Commission stressed that if candidates are entitled to know their own results, they are not allowed to receive information concerning other candidates' performances. The disclosure of such information would be in contrast with general principles of protection of personal data.

The Commission finally stated that the list of laureates of the competition was published in the OJ C 175 of 24 June 2000.

The complainant's observations

As a preliminary remark, the complainant pointed out that it was impossible for X to properly comment on the Commission's opinion, since X was not in possession of the relevant documents which the Commission sent to the Ombudsman and marked confidential.

However, the complainant made in summary the following observations:

From a formal point of view, X criticised the fact that the Commission's opinion neither mentioned its recipient nor its author.

From a substantial point of view, the complainant pointed out that if on the one hand Article 6 of Annex III of the Staff regulations protects the secrecy of the work of the Selection Board, on the another hand, it does not prevent those candidates who are interested to have access to the minutes of their tests.

The Commission has accepted to provide candidates who participated in recruitment competitions published from 1 July 2000 onwards with a copy of the minutes of their tests (verbali delle prove effettuate nell'ambito di un concorso), upon request. By doing so, the Commission recognised that it has been acting wrongly vis a vis candidates of previous competitions. There are therefore no reasons, according to the complainant, for not applying the new rules also to competitions published before 1 July 2000.

Furthermore, the complainant stressed that the Selection Board did not make any reference to matters X has dealt with previously (contrarily to what was done with other candidates) and that X's knowledge of the Portuguese language was not tested. The complainant claimed that since X masters Portuguese as a mother tongue, the fact that the Selection Board did not test X's knowledge disadvantaged X and could have been decisive for X's exclusion from the group of candidates included in the reserve list.

The complainant considered it absolutely necessary to have access to the minutes of the Selection Board in order to know the criteria applied by the Selection Board and, by knowing how the Selection Board has judged his examination, to improve the preparation in view of possible participation in future competitions.

Further information

Enclosed to its opinion, the Commission sent a confidential document for the Ombudsman's information. It was therefore not forwarded to the complainant for observations. However, the Ombudsman informed the complainant that he would inspect the document to check the accuracy of the information which the Commission had provided in its opinion.

Having examined the documents, the Ombudsman considers that there are no elements of discrepancy between the content of the document and the information given by the Commission in its opinion.

THE DECISION

1 The oral test carried out by the Selection Board

1.1 The complainant participated in the oral test of competition COM/A/11/98. Although X succeeded, X was not among the 80 best candidates included in the reserve list. Xalleged that the Selection Board did not carry out the oral test properly because it did not ask questions about X's previous experience, nor did it test X's knowledge of Portuguese.

1.2 The Commission pointed out that the Selection Board has carried out its works in accordance with the notice of competition that at point C(g) laid down that the oral test consisted of an interview with the Selection Board to enable it to complete its assessment of the candidate's suitability to carry out the duties described at point II in a multicultural environment. The interview will also focus on the candidate's knowledge of the institutions and policies of the European Union and on his/her knowledge of languages.

1.3 As consistently held by Community Courts, "(...) the Selection Board has considerable discretion as regards the arrangements for and the detailed content of the tests provided for in the framework of a competition. (...) It is not for the Court to review the detailed content of a test, unless that content is not confined within the limits laid down in the notice of competition or is not consonant with the purposes of the test or of the competition(2).

1.4 Thus it appears that the Selection Board has not exceeded its discretionary power or stepped outside the legal limits of its authority as established by the notice of competition.

1.5 The Ombudsman considers that there has been no maladministration by the European Commission as concerns this aspect of the case.

2. The complainant's claim that X's should be informed of the criteria used by the Selection Board

2.1 The complainant claimed that the Selection Board should provide X with the criteria used during the oral test.

2.2 The Commission pointed out that when assessing the comparative merits of candidates who have been invited to an oral test, the Selection Board sets the evaluation criteria which will apply to all candidates. The notice of competition COM/A/11/98 provided that the oral test would consist of an interview with the Selection Board to enable it to complete its assessment of the candidate's suitability to carry out the duties described therein. The interview would also focus on the candidate's knowledge of the institutions and policies of the European Union and on his/her linguistic knowledge.

The Selection Board set the relevant criteria in accordance with the content of the notice of competition.

2.3 As it has been stated in the jurisprudence of the Community courts, the secrecy inherent in the Board's proceedings precludes the communication of the criteria for marking the competition tests, which form an integral part of the comparative assessment made by the jury of the candidates' respective merits(3).

Communication of the detailed marks obtained by the candidates in the various tests forms a sufficient statement of the reasons on which the Selection Board based its value judgement(4).

2.4 The Ombudsman notes that in this case in its letter of 17 April 2000, the Commission communicated the marks the complainant obtained in each test. Moreover, in its opinion, the institution gave further information concerning the conduct of the procedure of the competition. It explained that the competition was carried out with the so-called "système de cascade". 320 candidates were selected after the preselection test, 160 were invited to take the oral test and 80 candidates were finally put on the reserve list.

2.5 There appears therefore not to have been maladministration by the European Commission as concerns this aspect of the case.

3. The complainant's claim that he should be given access to the minutes of his oral examination

3.1 The complainant claimed that he should be given access to the minutes of X's oral test.

3.2 The Commission justified its refusal on the basis of the secrecy of the works of the Selection Board, as foreseen by the Article 6 of Annex III of the Staff Regulations.

3.3 In the observations, the complainant argued that by accepting to provide candidates who participated in recruitment competitions published from 1 July 2000 onwards with a copy of the minutes of their tests, the Commission recognised that it has been acting wrongly vis a vis candidates of previous competitions. In the complainant's view, there are therefore no reasons for not applying the new rules also to competitions published before 1 July 2000.

3.4 The Commission's above mentioned decision actually constitutes the institution's acceptance of the draft recommendation following the Ombudsman's own initiative inquiry into the secrecy of the Commission's recruitment procedure which resulted in a Special report to the European Parliament. When the Commission indicated that it would apply the new rules from 1 July 2000, the Ombudsman accepted the institution's commitment.

Moreover, it has to be underlined that in his draft recommendation to the Commission the Ombudsman recommended the institution to give candidates access to their own marked examination scripts. It therefore does not concern the Selection Board's minutes of oral tests.

3.5 The Ombudsman considers the Commission's view that the evaluation sheet setting out the general assessment 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, to be well founded.

3.6 There appears to have been no maladministration by the European Commission as concerns this aspect of the case.

4 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 cover page of the Commission's opinion is enclosed to this decision for the complainant information.

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

Yours sincerely,

 

Jacob SÖDERMAN

---

(1) Published on O.J. L 267 of 20.10.2000

(2) See case T - 132/89 Gallone v. Council of the European Communities

(3) See Case C - 254/95 P European Parliament v Innamorati, [1996] ECR-SC I-3423

(4) See case T - 291/94 Pimley-Smith v. Commission [1995] ECR-SC II-637