Decision of the European Ombudsman on complaint 2361/2003/ELB against the European Commission

Strasbourg, 26 November 2004

Dear Mr X.,

On 1 December 2003, you made a complaint to the European Ombudsman against the Commission concerning the rejection of your application for an auxiliary agent post at the Commission, because of your failure in a test organised by the Directorate General for Administration (DG ADMIN).

On 17 December 2003, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 19 February 2004. I forwarded it to you with an invitation to make observations. On 18 March 2004, you sent interim observations and requested a document referred to by the Commission in its opinion. I forwarded your request to the Commission on 22 April 2004. The Commission sent its complementary comments on 28 May 2004. I forwarded them to you with an invitation to make final observations, which you sent on 9 July 2004.

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

THE COMPLAINT

The facts, according to the complainant, are in summary as follows:

The complainant was recruited on 10 March 2003 as a temporary worker ("intérimaire") to work for the Commission. A month later, the Commission offered him an auxiliary agent contract in the C category, provided that he passed a test organised by the Directorate General for Administration (DG ADMIN).

He took a first test in which accountancy questions were included. He failed the test. On 5 June 2003, he took a second test concerning Spanish. He understood that he had to obtain 50 % in the test. He also failed that test. He contacted the responsible official who told him that he had to obtain 70 % in order to pass. A second contract in the Directorate General for Information Society was refused to him because of his failure in the test organised by DG ADMIN.

On 12 June 2003, the complainant sent an e-mail to the Commission requesting the re-examination of the test that he took on 5 June 2003 and a copy of his examination paper. He received a negative reply to this e-mail by telephone. The complainant indicates that the Directorate General where he was working (DG Employment and Social Affairs) also contacted DG ADMIN to obtain information and to request that the complainant be allowed to take the test a second time. DG ADMIN also replied in the negative.

On 15 October 2003, the complainant lodged a complaint (2036/2003/ELB) with the Ombudsman, which was declared inadmissible because it appeared that no prior administrative approaches had been made to the Commission concerning the grounds for the complaint.

On 1 December 2003, the complainant informed the Ombudsman of the prior administrative approaches that he had made by e-mail on 12 June 2003. Consequently, the complainant's new letter was registered as a new complaint: 2361/2003/ELB.

The complainant does not understand why he had to obtain 70 % to pass the test and not 50 %, why he could not take the same test a second time, and why he had to take a test which was not related to the position that he was offered. He expresses the view that he was discriminated against and thinks that the correction of his test lacks clarity and impartiality.

The complainant alleges that the Commission refused to check the marks he obtained in a test he took on 5 June 2003 and to provide a copy of his corrected examination paper.

The complainant requested that his complaint be treated as confidential.

THE INQUIRY

The Commission's opinion

The Commission's opinion can be summarised as follows:

To be recruited as an auxiliary agent of C or D category at the Commission, the candidate has to pass a test, because such contracts can be offered for three years. The Commission notes that the category of auxiliary agents will disappear in the new Staff Regulations(1). The complainant took a test for clerical assistants in accountancy and one for clerical assistants.

The test for clerical assistants in accountancy consists of three exercises (multiple choice questions): (1) knowledge in accountancy (general accountancy and not accountancy at the European Commission), (2) knowledge of a second language and (3) knowledge of the institutions. To pass the test, the candidate should obtain at least the minimum mark of 50 % in each exercise. The complainant obtained sufficient marks in the last two exercises, but his mark in accountancy was insufficient (2/5).

In view of the complainant's results, the Directorate General for Employment, in agreement with the complainant, requested that he participate in a test for clerical assistants. This test consists of three exercises: (1a) attention, logic and reasoning, (1b) knowledge of a first language, (2) knowledge of a second language and (3) knowledge of the institutions. To pass the test, the candidate should obtain 70 % in exercises (1a) and (1b) and 50 % in exercises (2) and (3). The complainant chose to take these tests in Spanish. He failed in exercises (1a) and (1b), where he obtained 12/20 and 9.75/20 respectively.

The difference in the mark that a candidate has to obtain to pass a test is justified by the field of the test. Because of the specificity and the technicality of tests in accountancy or information technology, the Commission is tolerant with candidates. The tests for clerical assistants are general and less technical because of the numerous tasks of that category, so a higher mark must be obtained by the candidate for exercises (1a) and (1b).

Each candidate can take these tests twice, whatever the field or the category. The complainant took a test for clerical assistants in accountancy and a test for clerical assistants.

The Commission never refused to re-examine the complainant's results and indeed carried out a re-examination. However, the Commission considers that it is not appropriate to provide candidates with a copy of their corrected tests as the competent services use and re-use three different tests regularly.

The Commission considers that the complainant was given the same opportunities as other candidates and that he was not discriminated against.

Both tests taken by the complainant, as well as his answers, are at the disposal of the Ombudsman.

The complainant's interim observations

The complainant’s interim observations may be summarised as follows:

Having read the Commission's opinion, the complainant understood that the Commission's decision was based on a text establishing the minimum marks required to pass the tests for auxiliary agent posts. The complainant therefore made a new claim that the Commission should provide him with the text.

Furthermore, the complainant argues that the information given by the Commission in its opinion is not consistent with that given to him when he took the tests. He asserts that when he took the test for clerical assistants, candidates were told that the minimum mark was 50 %. Consequently, he is convinced that the examination of his test was not impartial and that he was discriminated against.

The Ombudsman forwarded the complainant’s interim observations to the Commission with a request for a response.

The Commission's second opinion

In its second opinion, the Commission explains that there is an administrative practice which defines the pass mark to be obtained in accordance with the type and the degree of technicality of the test. However, in view of its past experience and to ensure greater transparency, the Commission decided to adopt written rules. These rules entered into force on 25 May 2004.

The Commission indicates that, in future, each candidate taking auxiliary agent tests will receive a summary of these rules when taking the tests.

The Commission recalls that the complainant did not obtain 70 % in the clerical assistant test. Furthermore, even if the pass marks had been 50 % for exercises (1a) and (1b), as is the case for the test for clerical assistants in accountancy, the complainant would still have failed exercise (1b).

The complainant's final observations

In his final observations, the complainant makes, in summary, the following points:

As regards the test for clerical assistants in accountancy, the complainant states that there were questions about accountancy at the Commission and invites the European Ombudsman to examine his test.

The complainant does not accept the Commission's explanations as regards the pass mark of 70 % or the fact that candidates can only apply for two tests, as the Commission was unable to provide him with written rules. He alleges that, because of his diplomas, the Commission decided to raise the pass mark to 70 %.

The complainant does not understand why he cannot have access to his tests if auxiliary agents are about to disappear.

THE DECISION

1 Preliminary remark

1.1 The Ombudsman notes that, in his final observations, the complainant makes a new allegation that, because of his diplomas, the Commission decided to raise the pass mark to 70 %.

1.2 The Ombudsman notes that this allegation was not included in the original complaint. The Ombudsman considers that it would not be justified to delay a decision on the original complaint in order to inquire into this new allegation.

1.3 The complainant could make a new complaint to the Ombudsman concerning the new allegation, if he wishes, specifying all his allegations and providing all supporting arguments and evidence.

2 Alleged absence of re-examination of the test by the Commission

2.1 The complainant took a test for clerical assistants in accountancy and a test for clerical assistants, which were both organised by the Commission and which aimed at selecting auxiliary agents of C category. The complainant alleges that the Commission refused to check the marks he obtained in the test for clerical assistants that he took on 5 June 2003. He expresses the view that he was discriminated against and thinks that the correction of his test lacks clarity and impartiality. In his final observations, the complainant invites the European Ombudsman to examine his test.

2.2 According to the Commission, it never refused to re-examine the complainant's results and indeed carried out a re-examination. The Commission argues that the complainant was given the same opportunities as other candidates and that he was not discriminated against. The Commission stated that both tests taken by the complainant, as well as his answers, are at the disposal of the Ombudsman.

2.3 The Ombudsman considers that the complainant has not succeeded in raising any real doubt as to the reality of the re-examination of his test by the Commission and that he has provided no evidence that his treatment lacked impartiality or that it was discriminatory. The Ombudsman therefore considers it unnecessary to exercise his power to inspect the Commission’s file during the present inquiry. The Ombudsman recalls, however, that the complainant has the opportunity to present a new complaint if he wishes, specifying all his allegations and providing all supporting arguments and evidence. If the complainant submits such a new complaint, the Ombudsman could, if necessary, carry out an inspection of the Commission’s file.

2.4 The Ombudsman therefore finds no instance of maladministration as regards this aspect of the complaint.

3 Alleged failure to provide a copy of the complainant's corrected examination paper

3.1 The complainant alleges that the Commission refused to provide a copy of his corrected examination paper.

3.2 The Commission informed the Ombudsman that it considers that it is not appropriate to provide candidates with a copy of their corrected tests as the competent services use and re-use three different tests regularly.

3.3 The Ombudsman first recalls that, according to established case-law(2), the communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the Selection Board's decisions are based.

3.4 The Ombudsman also recalls that, on 18 October 1999, the European Ombudsman sent a special report to the European Parliament following the own-initiative inquiry into the secrecy which formed part of the Commission's recruitment procedure(3). The special report included a formal recommendation that, in future recruitment competitions, the Commission should give candidates access to their own marked examination scripts on request. On 7 December 1999, the President of the European Commission wrote to the European Ombudsman to inform him that: "The Commission welcomes the recommendations you made in this report and will propose the necessary legal and organisational arrangements to give candidates access to their own marked examination papers, upon request, from 1 July 2000 onwards."(4)

The Ombudsman notes that the above draft recommendation only concerned recruitment competitions. Moreover, in its reply to the draft recommendation, the Commission did not give an undertaking as regards selection procedures other than competitions. The Ombudsman does not therefore consider that the Commission’s refusal to supply the complainant with a copy of his corrected test constitutes a breach of the above undertaking.

In these circumstances, the Ombudsman finds no instance of maladministration as regards this aspect of the complaint.

4 The claim that the Commission should provide a text concerning the minimum marks

4.1 In his interim observations, the complainant stated that, having read the Commission's opinion, he understood that the Commission's decision was based on a text establishing the minimum marks required to pass the tests organised for recruiting auxiliary agents. He claims that the Commission should provide him with that text.

4.2 The Commission explains that the Commission based itself on an administrative practice which defines the pass mark to be obtained in accordance with the type and the degree of technicality of the test. However, in view of its past experience and to ensure greater transparency, the Commission decided to adopt written rules. These rules entered into force on 25 May 2004.

4.3 The Ombudsman understands the purpose of the complainant’s claim as being to provide evidence to support his view that his treatment lacked impartiality and that he was discriminated against. These aspects of the case have been dealt with in part 2 of this decision above.

The Ombudsman notes that the Commission has acknowledged that no written rules existed at the relevant time. In view of this acknowledgement, it is obvious that the complainant’s claim cannot be satisfied as regards the pass mark in the tests that he took. The Ombudsman therefore considers it unnecessary to deal further with the matter.

5 The allegation that the complainant was given contradictory information

5.1 In his interim observations, the complainant made a new allegation that he was given contradictory information by the Commission. He asserts that when he took the test for clerical assistants, candidates were told that the minimum mark was 50 %.

5.2 The Commission explains that the pass mark depends on the field of the tests and of its specificity and technicality. The tests for clerical assistants are general and less technical because of the numerous tasks of that category, so a higher pass mark must be obtained by the candidate.

5.3 The Ombudsman notes that the complainant took part in a selection procedure and that success in such a procedure depends only on obtaining a pass mark, in contrast to the situation in a competition, where the assessment of candidates is comparative. The Ombudsman therefore considers justified the complainant’s concern that there should be clarity as regards the relevant pass mark. However, in the absence of information as to precisely who said what to the complainant, it is difficult to investigate his allegation that he was given contradictory information. Moreover, whilst the provision of contradictory or misleading information is always regrettable and sometimes blameworthy, the complainant has not put forward any argument to show that he was disadvantaged in the tests that he took by the information that he received.

5.4 The Ombudsman is pleased to note that, as mentioned in paragraph 4.2 above, the Commission has taken measures to ensure greater transparency of its administrative practices by adopting written rules defining the pass mark, which will be communicated to candidates in future selection procedures.

5.5 In these circumstances, the Ombudsman takes the view that no further inquiries are justified.

6 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 will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman notes that the new Staff Regulations came into force on 1 May 2004.

(2) Case C-254/95, Parliament v. Innamorati, [1996] ECR I-3423, paragraph 31.

(3) Special Report of the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedure: http://www.ombudsman.europa.eu/special/en/default.htm.

(4) See press release no. 16/99 of the European Ombudsman of 15 December 1999.