Decision of the European Ombudsman on complaint 2244/2006/MHZ against the European Personnel Selection Office

Strasbourg, 31 July 2007

Dear Mr X,

On 6 July 2006, you made a complaint against the European Personnel Selection Office ("EPSO"). Your complaint concerned Open Competition EPSO/AD/35/05 to recruit linguistic administrators for the Bulgarian language in the field of translation and was registered as complaint 2244/2006/MHZ.

At the time of your complaint, you were not resident in the territory of a Member State of the European Union and it appeared that you were not a citizen of the European Union. I thus took the view that you were not entitled to complain to the Ombudsman. However, I considered that the issues raised by your complaint should be dealt with by me in an own-initiative inquiry.

On 10 August 2006 therefore, I forwarded your complaint to the Director of EPSO, informing him that I had decided to inquire on my own initiative into the issues raised therein. I asked him to take a position on your complaint by 31 October 2006.

On 18 October 2006, EPSO asked for the extension of the deadline, which I granted until 30 November 2006.

On 19 December 2006, EPSO informed me that, given the internal discussion on the issue raised by the complaint, it was not possible for EPSO to send its opinion before 31 December 2006. Therefore, I granted a second extension until 31 January 2007.

Given that, following the enlargement of the European Union on 1 January 2007, you became a citizen of a Member State of the European Union, I decided to deal with your case henceforth as a complaint under its former reference 2244/2006/MHZ, rather than as an own-initiative inquiry. Therefore the own-initiative inquiry OI/5/2006/MHZ was closed as from 1 January 2007.

On 2 February 2007, EPSO sent an opinion in French and on 22 February 2007 its translation into English, which I forwarded to you with an invitation to make observations.

On 20 March and 25 April 2007, I received your observations.

On 28 June 2007, my services contacted you by telephone and e-mail as regards a proposal of a possible friendly solution. On 3 July 2007, you sent a reply.

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

THE COMPLAINT

The complainant took part in Open Competition EPSO/AD/35/05 to recruit linguistic administrators (AD5) for the Bulgarian language in the field of translation.

The complainant was informed by the European Personnel Selection Office ("EPSO") that he had passed the pre-selection/admission tests and he was invited to submit a full application.

On 23 June 2006, he asked EPSO by e-mail to (i) send him copies of his answers, together with a list of correct answers, and (ii) inform him of his ranking among all the successful candidates. He stated in his request that according to the Guide for Applicants, the candidates are entitled to receive copies of their answers, together with a list of correct answers.

On the same day, EPSO replied that only candidates who fail part of the competition are entitled to receive their marks and not candidates who are participating in the next round of the competition.

In a further reply, dated 29 June 2006, EPSO stated that the questions in the pre-selection test had been taken from EPSO's database, which would also be used in the framework of other competitions. Therefore, the disclosure of answers could put at risk the whole decision-making process of the Selection Board and place those candidates who could eventually acquire the answers in a more advantageous position. EPSO also informed the complainant that sample tests, with questions and answers, are available on its website.

In his reply dated 30 June 2006, the complainant took the view that EPSO provided "justifications that make good sense". However, the complainant wondered how EPSO could reconcile such explanations with its statement in the Guide for Applicants that the applicants could obtain access to the answers of the test, and whether EPSO applied the same treatment to all candidates requesting the answers to the test in which they participated.

The complainant considered EPSO's behaviour inconsistent: on the one hand, in its Guide for Applicants, it promised candidates that they can have access to their test papers but, on the other hand, it denied this right if a candidate sought to exercise it. Therefore the complainant turned to the European Ombudsman.

The complainant alleged that EPSO (i) notwithstanding the information contained in its Guide for Applicants, wrongly refused to send him copies of his answers, together with a list of correct answers, and (ii) refused to inform him about his ranking and failed to state reasons for its refusal.

THE INQUIRY

The opinion of EPSO

EPSO's opinion can be summarised as follows:

The complainant was a candidate in Open Competition EPSO/AD/35/05 to constitute a reserve list for the recruitment of Bulgarian-language linguistic administrators to work in the field of translation. The Notice of Competition was published on 15 November 2005 in Official Journal C 282A. Section B (Admission Tests) of the Notice of Competition provided that, with a view to carrying out a preliminary selection for the competition, EPSO would organise admission tests for all candidates, either directly on computer, in specialised centres over a time period to be set by EPSO, or on paper, in examination centres on the same day for all candidates.

On 27 February 2006, EPSO informed candidates, including the complainant, whose applications had been correctly registered, that the admission tests would be held on computer and that they should therefore reserve the time and date on which they wished to sit the tests.

The complainant sat admission tests on 27 May 2006 at the Sofia examination centre.

In accordance with Section B.1 of the Notice of Competition there were two admission tests, each comprising a series of multiple choice questions: (i) test (a), designed to assess knowledge of the European Union, its institutions and policies was marked on a scale of 0 to, with a pass mark of 5, and (ii) test (b), designed to assess general ability, in particular verbal and reasoning skills, which was marked on a scale of 0 to 20 , with a pass mark of 10.

The complainant received the pass-mark in both tests and his overall mark was sufficient to enable him to be ranked among the 450 candidates with the highest marks.

On 22 June 2006, EPSO informed the complainant of his results and of his admission to the next stage of the competition. EPSO also asked him to complete his final application form and send it to EPSO with all supporting documents. EPSO also informed the 450 candidates, including the complainant, who were invited for written tests that, for organisational reasons, their written tests would be marked only if they fulfilled the specific admission criteria set out in the Notice of Competition.

On 23 June 2006, the complainant asked EPSO to send him a copy of his admission tests, the list of correct answers and his ranking in relation to the other candidates invited to submit a full application.

On the same day, EPSO replied by e-mail that marks were communicated only to candidates who had failed and that the ranking of candidates admitted to the next stage was not disclosed. EPSO added that the marks in the admission tests had no impact on the results of the written tests.

On 26 June 2006, the complainant sent an e-mail to EPSO and stated that the Guide for Applicants indicated indeed that candidates admitted to the next stage of competitions were entitled to receive a copy of their tests as well as the correct answers. He also asked EPSO to explain the rules on the basis of which the ranking of candidates was not communicated to him.

On 28 June 2006, EPSO send the complainant an acknowledgement of receipt of his last e-mail, and on 5 July 2006(1), it replied in essence that the questions he had answered were part of an extensive database of questions broken down by subject and level of difficulty which were also used in other competitions. EPSO could not therefore divulge questions from this database without undermining the operation of the selection procedures. Furthermore, any disclosure of the content of the database could benefit some candidates to the detriment of others. Such an eventuality was contrary to the principle of equal treatment of candidates and would, potentially, compromise future selection proceedings, with adverse consequences for all competition procedures. EPSO also stated that sample tests were available on its website to allow candidates to familiarise themselves with the type of tests they might be asked to sit.

On 20 July 2006, the complainant took part in the written tests in the Sofia examination centre. According to the Notice of Competition, the written tests consisted of two translations into the candidates' main language, the first test in their first compulsory source language and the second in their second compulsory language.

On 13 September 2006, EPSO informed the complainant that the Selection Board decided that he fulfilled all the admission criteria. As a result, his written tests had been corrected and he would be informed of the results via his EPSO profile probably in October 2006.

On 3 October 2006, EPSO informed the candidate that he had obtained 21.5 points out of 40 in the written tests and that this mark was insufficient for the Selection Board to admit him to the next stage of competition.

As regards the complainant's allegation concerning EPSO's refusal to send the complainant his answers (and the relevant questions(2)), as well as the correct answers, EPSO stated that the Notice of Competition foresaw two possibilities for organising the admission tests: (i) directly on computer over a period of time to be set by EPSO, or (ii) on paper, held simultaneously for all candidates. EPSO also noted that computer-based tests represent a new departure in competition proceedings. The Guide for Applicants refers however to only one possibility for organising the admission tests as foreseen in the Notice of Competition, namely, tests on paper. The Guide provides, inter alia,

"[a]s a general rule, the tests and/or written tests are held simultaneously for all applicants in all the designated test locations (...) if the competition has pre-selection tests candidates are entitled to be sent on request a copy of their answers together with a list of correct answers".

In the case of competitions where tests on paper are held on the same day for all the candidates and at the same time in all designated test locations, the tests are identical for all candidates. By contrast, in the computer-based admission tests the candidates may choose a date and time to suit themselves, within a given period of time communicated to all of them. Furthermore, all candidates received ten questions, the sum difficulty of which was equal to the difficulty of the questions received by all other candidates. The questions are selected for each candidate on a purely random basis from a database, so by definition candidates do not sit the same test.

The information contained in the Guide for Applicants applied therefore only to the tests which were identical for all candidates and which were held on the same day. EPSO also stated that, in any event, in view of the increasing use of computer-based tests in the competitions held since the competition in question took place, the Guide has been amended accordingly and the current information in the Guide is now unambiguous about the documents to which the candidates may have access.

EPSO further referred to the advantages of the computer-based tests, namely, that (i) a database has been set up in order to enable candidates to take their tests on a computer, and (ii) this new tool allows candidates to sit an individual test based on a random selection of the questions in the database, on the date of the candidates' choice, within a period set by EPSO.

However such a system means that admission tests take place exclusively on-line and candidates cannot either take away their test papers or ask for a printout of the questions or of their answers. The questions used for this competition form an integral part of the database which is used on an ongoing basis both for current competitions and for those to be organised by EPSO in the future. For this reason, the information in the database cannot be disclosed.

EPSO pointed out that, if the complainant's request for access to documents were considered under Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(3) ("Regulation 1049/2001"), it would be clear that there are limits to the right of access, notably for reasons of public interest in order to safeguard the objective of selecting the best staff for the European institutions. In this regard, EPSO referred to Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council(4). In those cases, the Court held that

1. "the purpose of the regulation is to guarantee access for everyone to public documents and not only access for requesting party to documents concerning him";
2. "the exceptions to access to documents provided for by Article 4(1)(a) of Regulation 1049/2001 are framed in mandatory terms"; and
3. (ii) "the particular interest which may be asserted by a requesting party in obtaining access to a document concerning him personally cannot be taken into account when applying the mandatory exceptions provided for by Article 4(1)(a) of Regulation 1049/2001."(5)

EPSO argued that the right of access to documents is limited or excluded, according to the principle lex specialis derogat legi generali, that is, that a special rule derogates from the general rule, where there are special rules governing specific matters. In this regard, EPSO referred to Case T-371/03 Le Voci v Council(6). EPSO also argued that, in the present case, the Staff Regulations have a specific objective, justified by reasons of public interest.

EPSO referred further to Case T-376/03 Hendrickx v Council(7) and the case-law cited therein, and in particular, Case T-53/00 Angioli v Commission(8). In the latter case, the Court held that the applicant cannot rely on Article 255(1) of the EC Treaty or Regulation 1049/2001 in order to question the applicability of Article 6 of Annex III to the Staff Regulations, which enshrines the principle that the proceedings of the Selection Board should be secret.

Finally, EPSO stated that it cannot release the questions/answers without undermining the selection process, within the meaning of Article 4(3) of Regulation 1049/2001. Any disclosure under Regulation 1049/2001 of the content of the database or a part thereof would benefit those future candidates who were able to access it and could thus cause adverse effects for future competition procedures by undermining the equal treatment of candidates. EPSO also pointed out that Article 4(3) of Regulation 1049/2001 provides that access to a document will be refused "unless there is an overriding public interest in disclosure". However, in the present case the interest is clearly private and it is undoubtedly in the public interest that the objectivity of the selection procedures of the European institutions and the equality of treatment of candidates are fully guaranteed.

EPSO therefore considers that the refusal to grant access to the questions/answers and the list of correct answers is fully justified. General systemic and official access to the questions in the database for any candidate who so requested would be seriously damaging to this new method. EPSO also considers that ad hoc access to tests, as part of a specific complaint procedure, would have a similarly adverse effect on the system of evaluation.

Moreover, as regards the principle of providing reasons for its decision, EPSO stressed that reasons must be given for any decision which has adverse effects. In the present case, the complainant passed the first stage of the competition, namely, the admission tests and his complaint concerns those admission tests. Therefore there is no reason to consider the decision to award him a pass in these tests as a decision which adversely affected him. However, for the purposes of increased transparency and visibility, EPSO attached to its opinion a document concerning the complainant's results in the admission tests. According to EPSO, that document showed the method used to calculate the complainant's marks in the tests as regards each question, the number of correct answers, as well as the results and the calculation of his aggregate mark. EPSO trusted that the complainant would appreciate the additional information sent to him in response to his complaint. EPSO explained that this additional information is, in this case, sufficient to establish whether the decision taken with regard to his performance, which is not a decision adversely affecting him, is well founded, without flaw, and incontestable.

As regards the complainant's ranking in relation to the candidates who were asked to submit a full application, EPSO stated that the complainant was one of 450 candidates who obtained the highest marks in the admission tests and therefore was asked to submit his full application. The complainant obtained a combined mark of 23.282 points in the tests. However, this result and by extension his ranking among the 450 top candidates had no impact on the rest of the competition procedure, as was moreover made clear by the Notice of Competition. In order to give the complainant an idea of his ranking in relation to other candidates, EPSO stated that a minimum mark of 22.616 points was necessary in order to be among the 450 best candidates.

EPSO also stated that in the case of candidates who fail the written or oral tests, that is, further stages of the competition, EPSO informs them of the marks they obtain. In this way, EPSO fulfils its obligation to inform the candidates of the reasons for the decision adversely affecting them, as established by the case-law. However, if these candidates are successful, the marks are not disclosed. In accordance with the provisions of the Notice of Competition, the Selection Board draws up the reserve list of candidates in alphabetical order within each merit group. This means that the successful candidates within each merit group are on an equal footing as they are all considered equally suitable to carry out the functions required. EPSO emphasised therefore that it does not inform the recruitment departments of European institutions about the marks of candidates placed on the reserve list.

The complainant's observations

First, the complainant refers to EPSO's statement, contained in the correspondence exchanged with the complainant in 2006, to the effect that candidates who are admitted to the second stage of the competition are not entitled to see their exam paper. In this regard, the complainant understands that those who were not admitted to the second stage of the competition are entitled to see their paper. The complainant wonders whether disclosure of test papers to unsuccessful candidates actually constitutes a much larger threat to the organisation of future competitions than the disclosure of papers to successful candidates. The complainant calculates that there were approximately 2000 unsuccessful candidates for Open Competition EPSO/AD/35/05, given that 2500 candidates sat the admission tests in question and 450 candidates were successful.

Second, the complainant takes the view that EPSO admits its error in drafting the relevant fragment in the Guide for Applicants by stating that "the Guide for applicants has been amended accordingly and the information it contains is completely unambiguous about the documents to which the candidates may have access on request." In light of the above, the complainant considers that EPSO should consider awarding compensation for the damage it caused the complainant. This claim is, in particular, based on the view that EPSO exhibited signs of "malice" towards the complainant by terminating his participation in the competition after the written tests. The complainant takes the view that EPSO's action was due to the fact that he dared to contest its decision to refuse him access to the documents in question.

The complainant refers therefore to the documents EPSO sent him in October 2006, that is, a copy of his written test; the evaluation sheet dated 12 September 2006; and EPSO's letter dated 11 October 2006 informing him that, following his request, it was sending him a copy of his written tests and the evaluation sheet. He takes the view that EPSO admitted him to the written tests on 13 September 2006, and marked his written test on 12 September 2006, which was the date of the signature of the President of the Selection Board appearing on the complainant's evaluation sheet.

In addition, the complainant points out that there are no remarks on the copy of his written test as sent by EPSO, which, in his view, shows that his test was not checked by anyone.

The complainant concludes that he was eliminated from the selection procedure because of EPSO's "malice" towards him, and because, in his direct communications with EPSO staff, he referred to them, as "bribe-addicts and other names". He thus considers that he has forfeited all chances of success in any further competitions organised by EPSO.

The exchange of communications with the complainant concerning a possibility of a friendly solution

On 28 June 2007, the Ombudsman's services contacted the complainant by telephone and e-mail in order to ascertain whether he would be prepared to accept the following proposal of a friendly solution in his case: (1) EPSO could give access to the complainant's answers in the CBT admission tests or, alternatively, provide convincing reasons for why it cannot do so; (2) EPSO could consider apologising for the unclear wording of the Guide for Applicants, and (3) EPSO could also inform the complainant about his ranking after the pre-selection tests or, alternatively, provide convincing reasons for why it cannot do so.

On 3 July 29007, the complainant replied by e-mail. In summary, he did not accept the above proposal but made a counter proposal that EPSO: (1) "ha[s] to file a lawsuit at the Civil Service Tribunal in order to demonstrate and prove that [its] decision to eliminate [the complainant] from the competition after the second stage is lawful", and, in the meantime, (2) "pay [the complainant] the monthly salary that [he] would [have] earn[ed], had [EPSO] not acted the way [it] did, plus interest."

THE DECISION

1 Preliminary remark

1.1 The Ombudsman notes that, in his observations, the complainant expresses his concerns as regards the assessment of his written test by the European Personnel Selection Office ("EPSO").

He appears to allege that his written test was not corrected at all.

The complainant also appears to allege that EPSO failed the complainant in his written test because he (i) on the basis of the information contained in the Guide for Applicants, exercised his right to have access to the answers of the admission test and, after EPSO's refusal, (ii) submitted a complaint to the Ombudsman in this regard. Therefore, the complainant claims that EPSO should consider awarding him compensation for the damage it caused him.

1.2 The Ombudsman points out, however, that the complainant's original allegations concern the admission tests only. The Ombudsman considers therefore that the issues raised in the complainant's observations are outside the scope of the original complaint and that, in accordance with Article 2 (4) of the Statute of the Ombudsman, the complainant should make administrative approaches to EPSO before turning to the Ombudsman concerning the matter.

1.3 The Ombudsman therefore confines his decision to the complainant's original allegations.

2 Access to the questions/answers of computer-based testing ("CBT")

2.1 The complainant, who successfully took part in the computer-based testing ("CBT") admission tests of Open Competition EPSO/AD/35/05, alleged that, contrary to the provisions of the Guide for Applicants, EPSO wrongly refused to send him copies of his answers, together with a list of correct answers.

2.2 In summary, EPSO argued that the Guide for Applicants referred to tests on paper taken simultaneously by all candidates and not to the CBT admission tests in which the complainant took part. In this respect, EPSO stated that, in any event, in view of the increasing use of CBT in the competitions held since the competition involved in the complainant's complaint took place, the Guide has been amended in order to avoid confusion regarding access to CBT tests. The current information in the Guide is now unambiguous as regards the documents to which the candidates may have access, according with the different modalities of the organisation of the tests, that is, directly on the computer or on paper.

Moreover, in its opinion, EPSO took the view that requests for access to questions/answers of CBT admission tests should be refused in all circumstances, which means that both "general systemic and official" access and ad hoc access should be refused. EPSO based its decision to refuse such access on Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(9) ("Regulation 1049/2001"), and on the relevant case-law of the Community Courts. In particular, EPSO argued that the question/answers of the CBT tests could not be disclosed to candidates because this would undermine the selection process.

2.3 At the outset, the Ombudsman points out that the complainant's present allegation is twofold: It concerns (i) the adequacy of the information contained in the Guide for Applicants, and (ii) the reasons given by EPSO's to support its view that access to the questions/answers of the CBT admission tests should be refused, as a matter of principle.

The Guide for Applicants

2.4 The Ombudsman notes that the Guide for Applicants published on EPSO's website at the time of competition in question contains the following statements:

"The nature of test varies from one competition to another (see notice of competition). As a general rule, the tests and/or written tests are held simultaneously for all applicants at all the designated test locations. Since this is a competition, no exceptions to this rule are permitted and no applicants may sit any of the tests at a different date or at a different place for any reasons whatsoever. (...)

If the competition has preselection tests, candidates are entitled to be sent on request a copy of their answers together with a list of correct answers.

After the written tests, they may obtain on request a copy of their written paper as well as a copy of their personal evaluation sheet including the selection board's remarks on their written test(s).

Such requests must be made within a month following the date on the letter notifying the results or the decision to put an end to a candidate's participation in a competition."

2.5 The Ombudsman also takes note of the introductory statement of Section B (Admission tests) of the relevant Notice of Competition:

"EPSO is organising admission tests with a view to carrying out a preliminary selection allowing admission to the competition. EPSO will organise these tests for all candidates, either:

directly on computer, if sufficient numbers are available in centres specialised in this type of test, the tests will be held over a time period to be set by EPSO, or

on paper in examination centres, in which case the tests will be held on the same day for all candidates."

2.6 In light of the above, it does not appear that the Guide for Applicants or Notice of Competition indicated in any way that the Guide's provision "[i]f the competition has pre-selection tests, candidates are entitled to be sent on request a copy of their answers together with a list of correct answers", applies only to tests on paper.

2.7 The Ombudsman recalls that the principles of good administration require that the information given to citizens should be as accurate and as complete as possible.

As regards the present aspect of the complaint, the Ombudsman takes the view that EPSO failed properly to inform the candidates of their right to the disclosure of their answers because it did not make any clear distinction between tests in its Guide for Applicants. Therefore EPSO's intention to limit this access to the tests on paper was not clear. Moreover, in its opinion on the complaint, EPSO did not apologise for its failure properly to inform the candidates.

The Ombudsman therefore formed the provisional view that there appeared to be an instance of maladministration.

The Ombudsman's services subsequently contacted the complainant with a view to making a proposal for a friendly solution as regards this aspect of the complaint. However, in light of the complainant's reaction to that proposal and the fact that, according to EPSO, it had in the meantime improved the wording of the Guide, the Ombudsman considers that no useful purpose would be served by prolonging the present inquiry as regards this aspect of the complaint.

EPSO's refusal to give access to the answers of the CBT questions/answers

2.8 The Ombudsman notes that EPSO explained its position in light of the existing rules on access to documents, namely, Regulation 1049/2001 and the relevant case-law of the Community courts, "if the complainant's request for access to documents were considered under Regulation 1049/.2001."

2.9 EPSO argued that that there are limits to the right of access, and, by way of an illustrative example, referred to "reasons of public interest" (underlined by the Ombudsman), which can be invoked in order to safeguard the objective of selecting the best staff for the European institutions. In support of this view, it also quoted from Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council(10) that:

1. "the exceptions to access to documents provided for by Article 4(1)(a) of Regulation 1049/2001 are framed in mandatory terms"; and
2. "the particular interest which may be asserted by a requesting party in obtaining access to a document concerning him personally cannot be taken into account when applying the mandatory exceptions provided for by Article 4(1)(a) of Regulation 1049/2001."(11)

The Ombudsman points out however that EPSO has made no specific reference to an exception based on the protection of the public interest as contained in Article 4(1)a(12). It has only referred to the exception set out in Article 4(3) of that Regulation.

The Ombudsman understands therefore that EPSO appears to have wished to refer to the public interest exception of Article 4(3) of Regulation 1049/2001 concerning the selection of the best staff for the European institutions. In this regard, the Ombudsman points out that Article 4(3) of Regulation 1049/2001 refers to documents "for internal use or received by an institution (...) where the decision has not been taken by the institution".

EPSO stated that it cannot disclose the questions/answers without undermining the selection process. It went on to argue that the questions/answers form part of the database which is used on an ongoing basis both for current competitions and for those to be organised by EPSO in the future. According to EPSO, any disclosure, under Regulation 1049/2001, of the content of the database or a part thereof would benefit those future candidates who would be able to access it. Such access could thus cause adverse effects for future competition procedures by undermining the equal treatment of candidates since some could acquire the questions/answers and some might not. EPSO also pointed out that Article 4(3) of Regulation 1049/2001 provides that access to a document will be refused "unless there is an overriding public interest in disclosure", and added that, in the present case, the interest is clearly private. Furthermore, EPSO stated that it is in the public interest that the objective nature of the selection procedures of the European institutions and the equality of treatment of candidates are fully guaranteed.

However, the Ombudsman considers that EPSO has not provided convincing reasons to show that the disclosure of the questions/answers of the CBT tests could indeed fundamentally undermine the selection process. EPSO's argument refers both to the ongoing competition and to other pending or future competitions. As regards the competition in question, EPSO did not explain why disclosure of the questions/answers after the completion of the relevant stage of the competition, would undermine the fairness of the remaining parts of the competition. As regards other competitions, EPSO did not explain why it would be necessary to use the questions put to candidates in one competition also in the context of other competitions. Hence, EPSO's argument above has not been substantiated.

2.10 Furthermore, EPSO recalled that the Court of First Instance has ruled that the secrecy of the proceedings of Selection Boards, set out in Article 6 of Annex III of the Staff Regulations, is to be considered as a lex specialis derogating from the general rules on access to documents. In this regard, EPSO referred to Case T-376/03 Hendrickx v Council(13) and Case T-371/03 Le Voci v Council(14).

The Ombudsman points out, in the first place, that the above-mentioned case-law does not concern access to test questions.

Moreover, in the present case the complainant did not submit his request for access to the CBT questions/answers under Regulation 1049/2002 but rather on the basis of the information provided by EPSO in the Guide for Applicants. In particular, the Guide indicated that candidates who so wished could have access to the questions/answers of the pre-selection tests. Therefore, this fact alone undermines EPSO's argument concerning the application of the secrecy rule, as its purpose and content was identified by the Court in cases referred to by EPSO.

2.11 In light of the above, EPSO's explanation made on the basis of Regulation 1049/2001, and without determining whether that Regulation would be applicable, cannot be considered as relevant in the present case.

The Ombudsman therefore concludes that, in the present case, EPSO neither provided the Ombudsman nor the complainant (since any submissions sent in the course of an inquiry are provided to both parties), with proper explanation for why it could not give access to the CBT questions/answers.

The Ombudsman therefore formed the provisional view that there appeared to be an instance of maladministration.

The Ombudsman's services subsequently contacted the complainant with a view to making a proposal for a friendly solution as regards this aspect of the complaint. However, in light of the complainant's reaction to that proposal, the Ombudsman considers that no useful purpose would be served by prolonging the present inquiry as regards this aspect of the present complaint.

The Ombudsman points out, however, that the same issue of principle (access to the CBT questions/answers) is raised in other on-going inquiries.

3 The refusal to inform the candidate about his ranking after the tests

3.1 The complainant also alleged that EPSO wrongly refused to inform him about his ranking in the admission tests and failed to state reasons for its refusal.

3.2 In summary, EPSO explained its position as to why it did not inform the candidates, including the complainant, of their ranking, by stating that the ranking has no impact on the candidates' (i) chances in the next stage of the competition, (ii) final position on the reserve list, or (iii) recruitment from the reserve list.

3.3 In the Ombudsman's view, the refusal to provide the information requested by the complainant could not be justified by the argument that this information is not important, since it is for the complainant, and not EPSO, to judge whether the requested is important for him.

3.4 Moreover, the Ombudsman notes that EPSO did not classify the information about the ranking as confidential.

3.5 Finally, even if EPSO decided to "give [an] idea" of the complainant's position in relation to other candidates in the pre-selection tests, and stated that a minimum mark 22.616 points was necessary in order to be among the 450 best candidates, while the complainant received 23.2282 points, this was not the information about his ranking that the complainant had requested.

3.6 The Ombudsman considers that the fact that corrections and the marks of candidates passing the CBT test are made by computer leads him to the provisional conclusion that the IT means available would allow EPSO, without great administrative work, to provide the complainant with the requested information. The Ombudsman recalls, however, that EPSO did not justify its refusal with the fact that that information was not available or that it would require an excessive administrative burden to provide it, but only with the fact that the information requested was not important for the future selection procedure. The Ombudsman recalls that principles of good administration require that the information given to citizens should be as accurate and as complete as possible. If information cannot be given, the reasons for such a refusal should be clearly explained.

3.7 In light of above, the Ombudsman formed the provisional view that, by failing to inform the complainant about his ranking and by failing to explain the reasons for not doing so, EPSO appeared to have committed an act of maladministration.

The Ombudsman's services subsequently contacted the complainant with a view to making a proposal for a friendly solution as regards this allegation. However, in light of the complainant's reaction to that proposal, the Ombudsman considers that no useful purpose would be served by prolonging the inquiry as regards this aspect of the complaint.

Moreover, in the Ombudsman's view, the general issue of access to information concerning the ranking of the candidates can be dealt with in a more useful way in inquiries on other complaints.

4 Conclusion

The Ombudsman considers that no useful purpose would be served by prolonging the present inquiry as regards this case. The Ombudsman has reached this conclusion in light of the complainant's reaction to the proposal for a friendly solution, and of the following reasons:

1. as regards the information in the Guide for applicants, the fact that EPSO had, in the meantime, improved the wording of the Guide;
2. as regards the issue of principle concerning access to the CBT candidates' questions/answers, the fact that the same issue of principle is raised in other on-going inquiries;
3. as regards the information on the complainant's ranking, the fact that, in the Ombudsman's view, the general issue of access to information concerning the ranking of candidates can be dealt with in a more useful way in inquiries on other complaints.

The Ombudsman therefore closes the case. The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) The Ombudsman understands EPSO to refer to its e-mail to the complainant sent on 29 June 2006, a copy of which was provided by the complainant together with his complaint to the Ombudsman.

(2) The Ombudsman points out that, as regards multiple choice questions, a list of the answers is not useful unless it is accompanied by the relevant questions.

(3) OJ 2001 L 145, p. 43.

(4) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429.

(5) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429, paragraphs 50-52.

(6) Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957, paragraph 122.

(7) Case T-376/03 Hendrickx v Council [2005] ECR-SC I-A-83 and II-379.

(8) Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraph 84.

(9) OJ 2001 L 145, p. 43.

(10) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429.

(11) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council [2005] ECR II-1429, paragraphs 50-52.

(12) The Ombudsman recalls therefore that Article 4(1)a of Regulation 1049/2001 states that the institutions shall refuse access to a document where disclosure would undermine the protection of the public interest as regards

• public security,
• defence and military matters,
• international relations,
• the financial, monetary or economic policy of the Community or a Member State

(13) Case T-376/03 Hendrickx v Council [2005] ECR-SC I-A-83 and II-379.

(14) Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957.