Decision of the European Ombudsman on complaint 2634/2006/ELB against the European Personnel Selection Office

Strasbourg, 21 September 2007

Dear Mr X,

On 2 August 2006, you submitted a complaint to the European Ombudsman against the European Selection Personnel Office ("EPSO") concerning your participation in Open Competition EPSO/A/16/04.

On 26 September 2006, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 17 January 2007. I forwarded it to you with an invitation to make observations, which you sent on 30 March 2007.

On 25 October 2006, you requested information on progress made with your complaint.

I sent you information on the handling of your complaint on 27 February 2007 and 4 April 2007.

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 can be summarised as follows:

The complainant took part in Open Competition EPSO/A/16/04 (Administrators in the field of information technology)(1). On 9 November 2005, EPSO informed him that, although he obtained the pass marks in the written and oral tests, his score was not amongst the 200 best scores and his name was not put on the reserve list.

On 21 November 2005, the complainant sent an e-mail to EPSO, asking it to confirm whether a question used in Open Competition EPSO/A/16/04 had previously been used for another Competition. He also requested a copy of the written test used in Open Competition EUR/A/127(2) in order to allow him to form an opinion as regards whether Open Competition EPSO/A/16/04 was unfair.

On 27 November 2005, the complainant requested that his application be reconsidered. He argued that 25% of the marks in Open Competition EPSO/A/16/04 were based on a question (in written test (d)) which had been used in a previous Open Competition. This question was made available to those candidates who (a) took part in the previous Competition; (b) participated in training sessions for Open Competition EPSO/A/16/04; and (c) worked in the European institutions or knew people working in the European institutions. Knowledge of this question conferred on these candidates an advantage, since they had the possibility to prepare for this question before sitting Open Competition EPSO/A/16/04.

The complainant became aware of this issue through an Internet posting in April 2005. In his request for reconsideration, he indicated that the principles of good IT project planning were the same today as they were six years ago. He added that the objectives of both tests were similar. Finally, even if test papers were collected at the end of the test of Open Competition EUR/A/127, candidates could "reconstruct" the question. Had he known about the question before the test, he argued that he would have obtained a better mark in written test (d). He also argued that unequal treatment among candidates could have been avoided if test papers had been published by EPSO. He requested that his written test be remarked and that his oral test be re-examined.

On 30 November 2005, EPSO replied to the complainant's e-mail dated 21 November 2005. It indicated that, if the question appeared to be similar to a question in Open Competition EUR/A/127, the present question was adapted to specific current needs, the objectives of the test were different and the questions asked were also different. Technological and methodological developments in this field have been so extensive over recent years that a question put in an identical manner may give rise to widely different answers. EPSO concluded that the Selection Board did not consider it necessary to cast doubt on the validity of the question. As regards the complainant's request for a copy of the question of Open Competition EUR/A/127, EPSO regretted that it was unable to make copies of past test papers available to candidates.

On 1 December 2005, the complainant replied to EPSO's e-mail dated 30 November 2005, disagreeing with EPSO's explanations. First, the wording of the tests was almost identical, and the figures used were identical, in both test papers. He noted that two questions out of three were identical in both test papers. He added that there were no major advances in this field in recent years and that a migration strategy plan valid in 1999 would still be valid in 2005.

On 5 December 2005, the complainant sent a letter to EPSO outlining his grievances.

On 21 December 2005, EPSO replied to the complainant's correspondence, notably his request for his results to be reconsidered. It provided the complainant with information on how the written test was corrected by the Selection Board. Every candidate's written test was corrected by at least two markers on the basis of a correction grid. The criteria for marking were established by the Selection Board prior to the marking procedure. The Selection Board checked that the marking criteria were correctly applied to the candidates' tests, took account of the comments/observations made by markers and subsequently determined the score to be awarded. EPSO informed the complainant that the Selection Board had carried out a second deliberation on his performance during the oral exam and had confirmed the original mark. EPSO also informed him that the general criteria for assessment during the oral phase were decided before the interviews started and that each candidate was judged on the basis of his or her individual performance and that no comparison was made between candidates. It added that EPSO did not organise training courses for Open Competitions and did not provide material for such training. EPSO referred to Annex III of the Staff Regulations concerning the confidentiality of the work of the Selection Board. It also stated that it confirmed its opinion as regards the validity of the question of the written test.

On 3 February 2006, the complainant, pursuant to Article 90(2) of the Staff Regulations, lodged a complaint against EPSO's decision not to include his name on the reserve list. In his complaint, pursuant to Article 90(2), the complainant argued that EPSO was careless in handling his request for reconsideration. EPSO refused to review the marking of his written test, to answer the questions he asked about the question that had been repeated in the written test and misrepresented the complainant's statements. EPSO failed to reconsider his application and to provide a reasoned response. He repeated his view that the fact that a previously asked question had been re-used conferred a significant advantage on some candidates.

On 5 March 2006, the complainant sent additional information to EPSO as regards his Article 90(2) complaint. He stated that there was a breach of the principle of equality of treatment of candidates when two categories of people in the same situation are treated differently or when two different categories of people are treated in the same way. In the case of the present Competition, EPSO has not taken into account the fact that the Competition was much easier for one category of candidates, namely, those who obtained the question before the test took place, than for another category, namely, those who did not obtain the question before the test took place.

On 19 May 2006, EPSO replied to the Article 90(2) complaint as follows:

Equal opportunities

According to Article 5 of Annex III to the Staff Regulations, the Selection Board is responsible for the selection of candidates to be placed on a reserve list. In order to fulfil the task of drawing up the list of candidates who meet the requirements set out in the Notice of Competition, the Selection Board sets the questions to be put to candidates in accordance with the established case-law of the Community courts(3). EPSO explained that the Selection Board chooses the questions at its discretion, which should allow it to select the best candidates to be placed on the reserve list(4). It is therefore up to the Selection Board to decide which questions to ask candidates. The fact that a similar question was asked in a Competition some years ago does not prevent the Selection Board from using it in another Competition. EPSO tests are a protected intellectual property of the European Communities and can be repeated without any limitations other than the scope of the Notice of Competition.

The principle of equality of treatment was respected by the Selection Board as the tests were the same for all candidates. The fact that questions from previous Competitions may be known by some candidates is irrelevant, as it is permissible to participate in several Competitions. The fact that some candidates are aware of the questions from previous Competitions cannot in itself be perceived as an obstacle to reusing questions.

Even if the availability of former tests over the Internet were discriminatory, it would neither favour Commission's staff nor affect the complainant's chances. According to EPSO, "he does not claim, let alone prove, that he only obtained the former tests after sitting test (d)".

Careless handling of previous correspondence

As regards the allegation that EPSO ignored the candidate's request for reconsideration and its answer contained mistakes, EPSO stressed that the Selection Board paid proper attention to the complainant's request. It assessed the facts and confirmed its decision not to place the complainant's name on the reserve list. The candidate was duly informed about this decision and the reasoning underpinning it. The answer sent to the complainant does not contain any error on the merits and cannot be a relevant basis for the re-evaluation of his request of reconsideration of his application. EPSO recalled that, according to Article 6 of Annex III to the Staff Regulations, the proceedings of the Selection Board shall be secret(5). Therefore, the Selection Board's proceedings cannot be disclosed.

Possibility of remarking the complainant's written tests

EPSO made reference to the case-law of the Community courts about the review by the courts of the value judgments of the Selection Board(6). The complainant did not claim that the decision of the Selection Board was vitiated by any manifest error or that the Selection Board had infringed the rules governing its proceedings or manifestly exceeded the bounds of its discretion. Therefore, there is no possibility of remarking his written tests.

On 2 August 2006, the complainant submitted a complaint to the European Ombudsman concerning his exclusion from the reserve list and the way EPSO handled his request for information, his request for reconsideration of his application and his Article 90 complaint. After examination of the complaint, the Ombudsman decided to open an inquiry into the following allegations and claims.

The complainant alleges that:

(1) EPSO infringed the principle of equal treatment of candidates to the extent that the written test in Open Competition EPSO/A/16/04 contained a question which was very similar to a question put to the candidates in Open Competition EUR/A/127.

A question representing 50% of the mark in the written test was also used in the most recent previous Open Competition for the same position. The complainant argued that candidates who had obtained the question before the test took place scored on average an extra five points and that he would have scored an extra nine points if he had obtained the question before the test took place. Access to the previous test papers was not equally available to all candidates as past papers were not published by the EU institutions. Thus, the Competition was easier for candidates who had participated in previous Competitions and for candidates who had unofficial links to EU officials who provided them with the papers. According to the complainant, candidates were therefore treated differently.

The complainant argued, in particular, that:

(A) EPSO has made false statements about the degree of similarity of the two test papers;

(B) The Selection Board failed to evaluate adequately and to give a reasoned answer to the arguments put forward by the complainant in his request for reconsideration concerning the issue of the similar question;

(C) EPSO has made a false statement that the complainant does not claim or prove that he only obtained the former tests after sitting the written test.

(2) EPSO made in writing a false statement that the test paper had been collected at the end of the written examination in Open Competition EUR/A/127.

Contrary to what EPSO stated in a letter to another candidate, test papers were not collected at the end of the previous Competition, as declared by the European Parliament in a letter to the complainant dated 30 June 2006. Parliament added in its letter that the reason why candidates were allowed to keep the tests was "so that they could subsequently ascertain whether they had answered the questions correctly". According to the complainant, it was gross negligence to reuse questions from this test.

(3) The Selection Board failed to deal appropriately with the complainant's request for reconsideration to the extent that it did not specifically address his request for reassessment of his performance in the written test.

(4) The complainant claimed that his request for reconsideration should be evaluated again, the necessary adjustment of his mark for the written test should be made and his name should be put on the reserve list.

In his complaint to the Ombudsman, the complainant submitted additional allegations and claims. However, the Ombudsman decided not to open an inquiry into these other allegations and claims, either because prior administrative approaches appeared not to have been made or because there were not sufficient grounds for opening an inquiry.

THE INQUIRY

The opinion of EPSO

The opinion of EPSO can be summarised as follows:

1. The facts

The complainant applied for Open Competition EPSO/A/16/04 . On 29 October 2004, he took pre-selection tests (tests (a), (b) and (c)) and written test (test (d)). The written test included an essay paper designed to test the candidates' knowledge in the field for which the Competition was being held. Candidates had to write about two of the proposed questions which related to the duties required. Each question was marked on a scale ranging from 0 to 30 and having a pass mark of 15.

Given the marks he obtained in the pre-selection tests, the complainant was invited to submit a full application with a view to a possible admission to the Competition. After examining his application, the Selection Board found that the complainant fulfilled all the admission requirements and went on to correct his written test.

Given his results, the complainant was invited to the oral test, that is, test (e). The aim of the oral test was to assess candidates' suitability to carry out the duties described in the Notice of Competition. The interview focused, in particular, on specialist knowledge in the field concerned and knowledge of the main developments in European integration and Community policies. Knowledge of a second language was also tested. The interview was also designed to evaluate candidates' ability to adjust to working as a European civil servant in a multicultural environment. This test was marked on a scale ranging from 0 to 60 and having a pass mark of 30. In order to be included on the reserve list, candidates were required to obtain the pass mark in both tests (d) and (e), and to be amongst the 200 candidates obtaining the highest marks for these tests as a whole.

The complainant's mark for the oral test was above the minimum required. However, the total number of points he obtained was not sufficient to place him amongst the 200 best candidates. The complainant was informed of this by letter dated 9 November 2005. The letter also informed him of the results he obtained in the various tests.

There followed an exchange of letters between the candidate and EPSO on written test (d) and, in particular, on one of the questions of this test, which he claimed was similar to a question in a previous Open Competition (EUR/A/127).

By letter of 3 February 2006, the complainant lodged a complaint under Article 90(2) of the Staff Regulations against the decision of the Selection Board not to include his name on the reserve list for Open Competition EPSO/A/16/04.

On 22 May 2006, the complainant was notified that his complaint had been deemed unjustified.

2. Comments
The alleged similarity of the questions

As regards Open Competition EUR/A/127, EPSO pointed out that it was a general Competition aimed at constituting a reserve pool of administrators in the fields of information technology and telecommunications. The Competition was organised in 1998 by the European Parliament, the Council of the European Union and the European Commission. Parliament had been entrusted by the other two institutions with the task of managing the procedure. One of the tests of the Competition was an essay on a topic selected by the candidates from a number of questions in the areas covered by the Notice of Competition. It was designed to assess the candidates' level of knowledge, writing ability and powers of reasoning (written test (c)).

Open Competition EPSO/A/16/04 aimed to constitute a reserve pool from which to recruit administrators in the field of information technology. It included written test (d), which was a written test aimed at assessing the candidates' knowledge in the field for which the Competition was being held. Candidates had to answer two questions selected from a number of questions covered by the job description. The complainant answered questions 1 (Migration of the operating system project) and 3 (Evaluation of tenders).

As a general point concerning the content of the tests, EPSO pointed out that, according to the established case-law:

"Selection Boards must be accorded a wide power of appraisal regarding the arrangements for and the detailed content of the tests in a Competition. The court cannot review the arrangements for the conduct of a test adopted by a Selection Board except to the extent necessary to ensure that the candidates were treated equally and that the choice from amongst them made by the Selection Board was objective. It is likewise not for the Court to criticize the detailed content of a test, unless that content is not confined within the limits laid down in the Competition Notice or is not consonant with the purposes of the test or of the Competition."(7)

The Selection Board for Open Competition EPSO/A/16/04 prepared the texts of the different questions for written test (d) of this Competition, including question 1 which is the question challenged by the complainant. Question 1 of the written test was entitled "Migration of the operating system project". Following a comparison between this test and that of a previous Competition supplied by the complainant himself, EPSO noted that, although the wording of the question did indeed appear to be similar, the terms of the test were adjusted and updated to take account of the specific needs of the Competition and the questions asked were not necessarily identical, especially as regards the risk assessment study.

The fact that one of the questions of the Competition was similar to one contained in a previous Competition, which was held six years earlier, did not constitute a breach of the principle of equality of treatment of candidates, as the complainant claimed, since the circumstances themselves were very different.

Indeed, EPSO pointed out that, given the particularly significant technological developments in the area of information technology in recent years, an identical question could give rise to very different answers. Furthermore, EPSO states that an answer deemed entirely adequate for a Competition launched in 1998 may very well not be considered as such for a Competition launched at a later date.

It could therefore not be argued that the Selection Board failed to ensure equal treatment just because one of the questions of the written test was in some ways similar to a question submitted to candidates at a different time.

The written test of Open Competition EUR/A/127

The complainant claims that EPSO made false statements when it explained that the test papers for Open Competition EUR/A/127 had been collected at the end of the written test.

On this point, EPSO noted that the letter attached to the complainant's complaint was drawn up by it taking into consideration the information supplied by a member of the Selection Board in Open Competition EPSO/A/16/04 who had also been a member of the Selection Board in Open Competition EUR/A/127. According to that member of the Selection Board, the teams of invigilators for Open Competition EUR/A/127 collected, after each test, the booklet of questions used in the test, the paper used for the answers, and the paper intended for preparatory work. EPSO did not make any false statements concerning the organisation of Open Competition EUR/A/127 since the information available when the reply was drafted was supplied by a person who had actually taken part in the organisation of the Competition and who had been present on the day of the tests in one of the examination centres. However, after receiving this complaint, EPSO consulted Parliament and it seems that practices at the time of Open Competition EUR/A/127 sometimes varied from one examination centre to another. EPSO could only deplore this misunderstanding which, however, did not affect the way this case was handled.

The candidate's request for reconsideration

The candidate's request for reconsideration and all the correspondence "attributed by the candidate to EPSO" was examined carefully by the Selection Board. Once it had examined all the points submitted by the complainant, the Selection Board came to its decision. It considered that there was no doubt as to the validity of question 1 of written test (d) for the reasons set out above. The Selection Board found that there was no basis for re-assessing the complainant's test, in which, it should be recalled, he obtained a mark above the minimum required, thus making it possible for him to take part in the oral test.

The complainant's observations

The complainant's observations can be summarised as follows:

(1) Allegation that EPSO infringed the principle of equal treatment of candidates to the extent that the written test in Open Competition EPSO/A/16/04 contained a question which was very similar to a question put to the candidates in Open Competition EUR/A/127

According to the complainant, ensuring equal opportunity for all candidates, as stated in the Notice of Competition, could have been done very easily by publishing past test papers and/or by avoiding the repetition of a question.

The complainant considered that the principle of equality of opportunity was breached for the first time when EPSO failed to organise a Competition of substantially the same level of difficulty for all candidates(8). None of the Court of Justice cases cited by EPSO overrules this obligation. In particular, the wide discretion and the powers of appraisal given to the Selection Board do not relieve it of the obligation to comply with the principle of equality.

According to the complainant, the principle of equality was breached a second time when the Selection Board refused to review the marking of his written test, even though it had been marked using the same standards as for those candidates who had prior access to a question. Treating different situations in the same way is, under EU law, a breach of equality of opportunity.

The complainant believed that the irregularity which occurred, that is, the failure to provide a test of the same level of difficulty for all candidates, was substantive in nature and capable of distorting the results of the Competition. He brought the Ombudsman's attention to paragraph 79 of Case T-371/03 Le Voici v Council(9), which states that if an irregularity is substantive in nature and capable of distorting the results of the tests, it is for the defendant institution to prove that the irregularity did not affect the results of the tests. However, EPSO has provided no proof that the results of the Competition were not affected by the question that had been repeated.

EPSO also rephrased the complainant's arguments concerning the fact that the question would have been easier for some candidates. It failed to mention that, according to the complainant, the test would be easier for those candidates who obtained the former test paper in an unofficial way through contacts, including those who obtained it at a training course. Prior possession of that question and the resulting ability to study it before the test would allow certain candidates to save time when choosing which question to start with, would enable them to answer this question more quickly, and would leave them with additional time for dealing with the second question of the test. Thus, they also improved their performance in relation to the second question.

The complainant noted that EPSO ignored the statement that the wording of a question was almost identical, and that the figures used were identical, in both test papers. He asked the Ombudsman to examine the two questions and to form his own impartial opinion on the degree of similarity.

The complainant also stated that the wording used by EPSO in its correspondence with the complainant did not reflect the wording used by himself in its correspondence with EPSO. According to the complainant, this implies that EPSO frequently misrepresented his point of view in its correspondence and failed to evaluate adequately and give a reasoned answer to his arguments. It is possible that EPSO has also misrepresented the point of view of the Selection Board. The complainant has no way of knowing whether what EPSO says does indeed represent the point of view of the Selection Board. In this respect, the rules of secrecy and discretion, which EPSO frequently invokes, make it very difficult for a candidate to learn whether what EPSO says represents the point of view of the Selection Board. Certainly, it would not be appropriate for any candidate to address the Selection Board. The Ombudsman will be able to decide himself whether it would be appropriate for him to find a way of addressing the Selection Board without going through EPSO in order to find out if it has in fact examined the two test papers and if it does in fact consider that they are "only apparently similar". This would not necessarily be a breach of secrecy or of its discretion, but a way of finding out whether EPSO has misrepresented its point of view.

The complainant notes that the only reasoned argument the complainant obtained from the Selection Board concerning the issue of the similar question was a "standard" response. In support of this statement, the complainant notes that EPSO sent the same statements in reply to another candidate seven months (April 2005) before the complainant's request.

The complainant also pointed out that EPSO rephrased what the Ombudsman wrote to EPSO in a way that would make his statement appear incorrect and untrue, by replacing "a false statement" with "false statements"(10). This alteration rephrased the allegation against EPSO in a way which makes it illogical and untrue.

(2) The complainant's allegation that EPSO made in writing a false statement that the test paper had been collected at the end of the written examination in Open Competition EUR/A/127

Confronted with a letter from Parliament which categorically contradicted what, to the complainant's knowledge, was the first statement made by the Selection Board and EPSO about the repeated question, EPSO, in its opinion to the Ombudsman, stated that there was a misunderstanding and deplored its occurrence.

The complainant stated that what happened was a mistake rather than a misunderstanding. He did not agree that this mistake was irrelevant to his case. The decision to reuse the question was astonishing. Neither EPSO nor the Selection Board has stated that this mistake or misunderstanding did not have an influence on their decision to reuse it. What is certain is that EPSO has now been obliged to admit that this statement made by it and the Selection Board was not correct. They have admitted that a mistake happened in relation to the repeated question and Open Competition EPSO/A/16/04, and, according to EPSO, this mistake was to be attributed to the relevant Selection Board.

(3) The complainant's allegation that the Selection Board failed to deal appropriately with his request for reconsideration in that it did not specifically address his request for reassessment of his performance in the written test

Contrary to what EPSO states in its opinion, the mark of the written test was not only sufficient to allow the complainant to be admitted to the oral test, it also counted for 50% of the marks in the final selection of candidates after the oral test. If he had obtained an extra 1.5 points in the written test, he would have been on the reserve list. Therefore, the complainant considered EPSO's statement that there was no basis for re-assessing the written test in which he obtained the pass-mark to be misleading.

(4) The complainant claims that his request for reconsideration should be evaluated again, the necessary adjustment of his mark for the written test should be made and his name should be put on the reserve list

According to the complainant, EPSO has not specifically addressed this point in its opinion. The reserve list from Open Competition EPSO/A/16/04 is still valid. Many people on the list have not yet been recruited, and recruitment from this list may continue for several years as it is likely that the reserve list will remain valid for the foreseeable future. The complainant sees no reason why the Selection Board should not meet again, be asked to respect their legal obligation to provide each candidate with an equal opportunity, and re-assess his test (d), taking into account the impact of the repeated question on his marks and on the marks of the other candidates.

Finally, the complainant pointed out that EPSO has demonstrated in the recent past, in relation to Open Competition EPSO/A/16/04, its refusal to admit that anything went wrong in a test when, clearly, such an inconsistency existed. In complaint 32/2005/ELB, the Ombudsman was obliged to express his regret that EPSO has refused to acknowledge the inconsistency that occurred, since its failure to do so was not conducive to good relations with citizens. According to the complainant, the very low level of integrity in EPSO is a disgrace to the EU Institutions. His observation provides evidence that EPSO has already, in Open Competition EPSO/A/16/04 , refused to acknowledge what, in fact, was an inconsistency. The irregularity in the complainant's case, which EPSO is denying, is much more serious.

The complainant repeated his regret that the Ombudsman did not agree to investigate all of the allegations about EPSO in his complaint, and asked him once again to reconsider his decision in this regard. The complainant considered that, through his opinion, he exposed the very questionable behaviour of EPSO by having as much as possible about it published on the Ombudsman's website. He thus considered that this would contribute to obliging EPSO, henceforth, to tell the truth, to act in good faith, and to respect the EU laws which govern its activities. He failed to understand why the EU institutions allow their competitions to be organised by a body which has demonstrated such a lack of integrity.

THE DECISION

1 Preliminary remarks

1.1 In a letter to the European Ombudsman dated 25 October 2006, the complainant asked the Ombudsman to reconsider his decision as regards the inadmissibility of certain allegations and claims which had been set out in his complaint. On 27 February 2007, when he invited the complainant to make observations on the opinion of the European Selection Personnel Office ("EPSO") , the Ombudsman informed the complainant that he maintained his previous decision as regards the inadmissibility of some of his allegations and claims. In his observations, the complainant repeats the same request. The Ombudsman confirms that no convincing arguments have been put forward which would lead him to alter his decision concerning the inadmissibility of certain allegations and claims which had been set out in this complaint. Thus, the Ombudsman confirms that the scope of the present inquiry is limited to the allegations and claim mentioned in the present decision.

1.2 In his observations, the complainant also stated that the Ombudsman should decide whether it would be appropriate for the Ombudsman to find a way of addressing the Selection Board without going through EPSO. The Ombudsman understands that the complainant wants him to contact the Selection Board directly in relation to his case.

The Ombudsman recalls that EPSO has been entrusted with the specific task of communicating between the Selection Boards and candidates. Thus, it is appropriate for EPSO to inform the candidate of the opinions of the Selection Board.

Moreover, as the present complaint is directed against EPSO, it is appropriate that EPSO reply to the Ombudsman(11).

In this context, the Ombudsman notes that it is possible, in accordance with Article 5.2 of the Ombudsman's Decision to adopt Implementing Provisions, for the Ombudsman to request EPSO to provide him with access to its correspondence with the Selection Board in order to determine if it has, in its correspondence with the complainant, correctly reflected the views of the Selection Board. However, in light of the substantive findings set out below, the Ombudsman does not consider it useful to undertake such an inspection in this case.

2 Alleged infringement of the principle of equal treatment

2.1 The complainant took part in Open Competition EPSO/A/16/04. However, his name was not included on the reserve list, because he was not amongst the 200 best candidates. He alleges that EPSO infringed the principle of equal treatment of candidates since the written test in Open Competition EPSO/A/16/04 contained a question which was very similar to a question put to candidates in Open Competition EUR/A/127, that is, the most recent interinstitutional Open Competition organised for the same profile. He argued that the previous test paper was not equally available to all candidates, since the past test papers were not published by the EU institutions. This limited access made Open Competition EPSO/A/16/04 easier for candidates who had participated in previous competitions and for those candidates who had unofficial links to EU officials and who provided them with the test paper. The complainant argued that candidates who had obtained the question before the tests took place scored, on average, an extra five points. He also argued that he would have scored an extra nine points if he had obtained the question beforehand.

The complainant argued, in particular, that:

(A) EPSO made false statements about the degree of similarity of the two test papers.

(B) The Selection Board failed to evaluate adequately and to give a reasoned answer to the arguments put forward by the complainant in his request for reconsideration concerning the issue of the similar question.

(C) EPSO made a false statement that the complainant has not claimed or proved that he obtained the former tests only after sitting the written test.

2.2 In its opinion, EPSO pointed out that Open Competition EUR/A/127 was a general Competition, organised in 1998 by the European Parliament, the Council of the European Union and the European Commission, which aimed at constituting a reserve pool of administrators in the fields of information technology and telecommunications. Parliament was entrusted by the other two institutions with the task of managing the Competition procedure. One of the tests of the Competition was an essay on a topic selected by the candidates from a number of questions in the areas covered by the Notice of Competition, and was designed to assess their level of knowledge, writing ability and powers of reasoning (written test (c)).

Open Competition EPSO/A/16/04 aimed at constituting a reserve pool from which to recruit administrators in the field of information technology. It included written test (d), which aimed at assessing the candidates' knowledge in the field for which the Competition was being held. Candidates had to answer two questions selected from a number of questions in the areas covered by the job description. The complainant answered questions 1 (Migration of the operating system project) and 3 (Evaluation of tenders).

The Selection Board for Open Competition EPSO/A/16/04 prepared the texts of the different questions for written test (d) of this Competition, including question 1 of the said test. Following a comparison between this test and the question in Open Competition EUR/A/127 (the copy of the question in Open Competition EUR/A/127 was supplied to EPSO by the complainant), EPSO noted that, although the wording of the questions did indeed appear to be similar, the terms of the test in Open Competition EPSO/A/16/04 were adjusted and updated to take account of the specific needs of the Competition and that the questions asked were not necessarily identical, especially as regards the risk assessment study.

The fact that one of the questions of the Competition was similar to that of a previous Competition, which was held six years earlier, did not constitute a breach of the principle of equality of treatment of candidates, as the complainant claimed, since the circumstances themselves were very different.

Indeed, EPSO pointed out that, given the particularly significant technological developments in the area of information technology in recent years, an identical question could give rise to very different answers. Furthermore, EPSO stated that an answer deemed entirely adequate for a Competition launched in 1998 may very well not be considered as such for a Competition launched at a later date.

EPSO explained that t he candidate's request for reconsideration and all the correspondence communicated by the candidate to EPSO was examined carefully by the Selection Board. Once it had examined all the points submitted by the complainant, the Selection Board came to its decision. It considered that there was no doubt as to the validity of question 1 of written test (d).

2.3 In his observations, the complainant believed that the irregularity which occurred, that is, failure to provide a test of the same level of difficulty for all candidates, was substantive in nature and capable of distorting the results of the Competition. He brought the Ombudsman's attention to paragraph 79 of case T-371/03 Le Voici v Council, which states that if an irregularity is substantive in nature and capable of distorting the results of the tests, it is for the defendant institution to prove that the irregularity did not affect the results of the tests. The irregularity that occurred in Open Competition EPSO/A/16/04 was substantive in nature and capable of distorting the results of the tests, but EPSO has provided no proof that the results of the Competition were not affected by the repeated question.

2.4 First, the Ombudsman recalls that, according to the case-law, the principle of equality of treatment of candidates in Competition proceedings is considered to be a fundamental principle of Community law(12).

Moreover, the Community courts stated that the principle of equal treatment is of a very high importance in the framework of Open Competitions and that it is for the Selection Board to ensure that the tests are of more or less the same degree of difficulty for all candidates(13).

2.5 The Ombudsman also notes that the mere fact that questions in relation to certain primary tasks in a particular field have been used in previous Open Competitions cannot, of itself, imply that questions in relation to the same primary tasks cannot be repeated in subsequent Open Competitions in that field. To consider otherwise would imply that candidates in subsequent Open Competitions could not be evaluated as regards their competence to carry out these primary tasks.

2.6 The Ombudsman notes that the relevant question (Question I) in Open Competition EUR/A/127 and the relevant question (Question 1) in Open Competition EPSO/A/16/04 contain three parts: a short introduction, a description of the current situation and the task to be carried out.

The wording of the short introduction and of the description of the existing situation is substantially identical in both questions(14).

For both Competitions, the task was to establish a "migration plan". This migration plan consisted of two sections in Competition EUR/A/127, that is, a "migration strategy plan"(15) and a briefing to the top management. In Competition EPSO/A/16/04, however, it consisted of three sections that is, a "risk assessment study", a "migration strategy plan" and a briefing to the top management.

2.7 The wording of one of the three sections of Question 1 in Open Competition EPSO/A/16/04 (concerning the migration strategy plan) is substantially identical to the wording of one of the two sections of Question I in Open Competition EUR/A/127.

The Ombudsman notes that the migration of an operating system is a primary task for administrators in the field of information technology. As such, EPSO was justified in asking candidates a question on this subject.

Notwithstanding the above, the fact that a question on a migration strategy plan could appear in Open Competition EPSO/A/16/04 should, given the importance of the migration of an operating system for administrators in the field of information technology, have reasonably been foreseen by all candidates exercising due diligence. Thus, the fact that such a question was used in Open Competition EUR/A/127 could not have provided a relevant advantage to certain candidates in Open Competition EPSO/A/16/04.

2.8 The section of the question posed in Open Competition EPSO/A/16/04, which is not contained in the question posed in Open Competition EUR/A/127 concerns a "risk assessment study". It is the Ombudsman's understanding that a "risk assessment study" constitutes a complicated task in the area of information technology. The Ombudsman also understands that the risk assessment has, for administrators in the field of information technology, become increasingly important in recent years. The inclusion of such a section implies that the question posed in Open Competition EPSO/A/16/04 is, in fact, different from the question posed in Open Competition EUR/A/127.

2.9 The Ombudsman also notes that the last section of both questions essentially requests the candidates to brief top management as regards the "problem" and the solution to the "problem". As such, the answer to this section must necessarily focus, as regards Open Competition EUR/A/127, on the migration strategy plan. In contrast, as regards Open Competition EPSO/A/16/04, the answer to this section must necessarily focus on the migration strategy plan and the risk assessment. Thus, while the wording of the last section of both questions is essentially identical, the meaning of the last section of both questions is substantially different.

2.10 The Ombudsman also notes that the data used in both questions are substantially identical. However, it is the Ombudsman's understanding that these data merely constitute background information and that any changes to these data would not have made any material difference to the nature or difficulty of the questions.

2.11 The Ombudsman concludes therefore that the question posed in Open Competition EPSO/A/16/04 is not substantively identical to the question posed in Open Competition EUR/A/127.

2.12 In light of the above, the Ombudsman takes the view that it has not been demonstrated that there was a breach of the principle of equal treatment between candidates in Open Competition EPSO/A/16/04.

Even if the questions had been identical, the Ombudsman is of the view that there would have been no irregularity as such. On the contrary, he notes that it is not uncommon that the same question be reused in different competitions.

2.13 In support of his allegation as regards a breach of the principle of equal treatment between candidates, the complainant argued that EPSO has made false statements about the degree of similarity between the two test papers. Given his finding in point 2.11, the Ombudsman considers that no further inquiry into the complainant's argument is justified.

2.14 In support of his allegation as regards a breach of the principle of equal treatment between candidates, the complainant also argued that the Selection Board failed to evaluate adequately and to give a reasoned answer to the arguments he put forward in his request for reconsideration concerning the issue of the similar question.

In its e-mail of 30 November 2005, EPSO stated that: "(...) the questions asked were also different in particular the carrying out of a risk analysis. (...) In light of the above, the Selection Board does not consider it necessary to cast doubt on the validity of the question." After a careful examination of the complainant's requests and EPSO's answers, and in view of his findings in paragraph 2.11, the Ombudsman takes the view that EPSO dealt with the main issue of the request for reconsideration and submitted convincing arguments to support its position. The Ombudsman therefore concludes that EPSO's answer to the complainant was adequate.

2.15 In his observations, the complainant also argues that the only reasoned answer he obtained from EPSO was a standard reply which had already been sent to another candidate seven months earlier. The Ombudsman considers that, even if it were the case that EPSO used the same statements that it had made in a reply to another candidate, this does not alter the substantive assessment of EPSO's answer (which was that the questions in both exams were not identical).

2.16 In his complaint, the complainant also made reference to the fact that EPSO stated that the complainant failed to prove that he only obtained the test paper from Open Competition EUR/A/127 after sitting the written test in Open Competition EPSO/A/16/04(16).

The Ombudsman notes that EPSO has produced no evidence that the complainant obtained the test paper in Open Competition EUR/A/127 before sitting the test in Open Competition EPSO/A/16/04. Therefore, the above cited statement constitutes mere speculation on the part of EPSO. As such, it should not have been made.

Notwithstanding the inappropriate statement made by EPSO, the Ombudsman also notes that the question of whether EPSO made a false statement about the date on which the complainant obtained the former tests has no influence on whether there was a breach of the principle of equal treatment of candidates as regards Open Competition EPSO/A/16/04. Therefore, he considers that it is not necessary to pursue any further the question as to whether EPSO made a false statement about the date on which the complainant obtained the test papers.

2.17 In his observations, the complainant also argues that EPSO modified the Ombudsman's wording of one of the complainant's arguments in a way which made the complainant's arguments appear illogical and untrue(17). The Ombudsman takes the view that, although EPSO did not use the exact words that the Ombudsman used, EPSO did not alter the substance of the question from the Ombudsman.

2.18 In light of the above, the Ombudsman therefore finds no instance of maladministration by EPSO as regards this aspect of the complaint.

3 Allegation that EPSO made a false statement in writing

3.1 The complainant alleges that EPSO made in writing a false statement that the test paper had been collected at the end of the written examination in Open Competition EUR/A/127.

3.2 In its opinion, EPSO noted that the letter annexed to the complainant's complaint was drawn up by EPSO after taking into consideration the information supplied by a member of the Selection Board in Open Competition EPSO/A/16/04 who had also been a member of the Selection Board in Open Competition EUR/A/127. According to that Board member, on the day of the tests for Open Competition EUR/A/127, the teams of invigilators collected, after each test, the booklet of questions used in the test, the paper used for the answers, and the paper intended for preparatory work. EPSO did not make any false statements concerning the organisation of Open Competition EUR/A/127 since the information available when the reply was drafted was supplied by a person who had actually taken part in the organisation of the Competition and who had been present on the day of the tests in one of the examination centres. However, after receiving this complaint, EPSO consulted the European Parliament and it seems that practices at that time sometimes varied from one examination centre to another. EPSO could only deplore this misunderstanding which, however, did not affect the way this case was handled.

3.3 In his observations, the complainant called what had happened a mistake rather than a misunderstanding and did not agree that this mistake was irrelevant to his case. Neither EPSO nor the Selection Board has stated that this mistake or misunderstanding did not have an influence on their decision to reuse a question.

3.4 The Ombudsman recalls again that EU institutions and bodies should make accurate statements and should promptly correct any error that may occur. He first notes that, in a letter sent by EPSO to another candidate apparently in April 2005, EPSO explained that the test paper for Open Competition EUR/A/127 had been collected. However, the Ombudsman notes that, contrary to the above-mentioned statement, Parliament indicated, in a letter to the complainant dated 30 June 2006, that test papers were not systematically collected in all test centres. He also notes that, in its opinion, EPSO indicated that it contacted Parliament, that it was informed that test papers were not systematically collected and that it deplored this misunderstanding.

Therefore, the Ombudsman takes the view that since EPSO promptly corrected the inaccuracy once it became aware of it, no further inquiry into this aspect of the complaint is necessary.

The Ombudsman does not discount the possibility that a mistake may have been made by Parliament to the extent that test papers in Open Competition EUR/A/127 may not, in contravention of the established procedure at that time, have been collected in all test centres. However, the scope of the Ombudsman's inquiry into the present complaint is limited to EPSO and does not concern Parliament.

4 Allegation that the Selection Board failed to deal appropriately with the complainant's request for reconsideration

4.1 The complainant alleges that the Selection Board failed to deal appropriately with his request for reconsideration since it did not specifically address his request for a reassessment of his performance in the written test.

4.2 In its opinion, EPSO explained that the Selection Board carefully examined both t he candidate's request for re-assessment and all his correspondence. Once it had examined all the points made by the complainant, the Selection Board came to a decision. It considered that there was no doubt as to the validity of question 1 of written test (d). The Selection Board found that there was no basis for re-assessing the complainant's test, in which, it should be recalled, he obtained a mark above the minimum required, an achievement which enabled him to take part in the oral test.

4.3 In his observations, the complainant considered that the mark of the written tests was not only sufficient to allow him to be admitted to the oral test, it also counted for 50% of the marks in the final selection of candidates after the oral test.

4.4 The Ombudsman notes that, in his request for reconsideration dated 27 November 2005, which he made after having been informed that his marks were insufficient for his name to be placed on the reserve list, the complainant requested that his "application should be reconsidered" and specifically that his written test be remarked.

4.5 The Ombudsman also notes that, in its letter dated 21 December 2005, EPSO explained that

"every candidate's written test was corrected by at least two markers on the basis of a correction grid. (...) the Selection Board checked that the marking criteria were correctly applied to candidates' tests (...) and took account of the comments/observations made by markers and subsequently determined the score to be awarded. (...) the Selection Board also carried out a second deliberation on [the complainant's] performance during the oral exam. It considers that the assessment initially made corresponds to the level of [the complainant's] performance and therefore confirms the original mark given."

Finally, in reply to the Article 90 complaint, EPSO referred to the case-law of the Community courts dealing with the courts' review of the Selection Board's value judgments and stated that:

"the complainant does not claim, let alone prove, that the decision of the Selection Board is vitiated by any manifest error or that the Selection Board has infringed the rules governing its proceedings or manifestly exceeded the bounds of its discretion. Therefore, there is not any possibility of remarking his written tests."

4.6 The Ombudsman agrees with the complainant that the mark that he obtained in the written test had an impact not only on his admission to the oral test, but also on his final result. It was therefore important to ensure, for the final result, that the written test was correctly assessed.

4.7 The Ombudsman recalls that, as established by the case-law of the Community courts, the Selection Board enjoys a wide discretion in assessing the results of tests(18). The Ombudsman notes that EPSO explained that the Selection Board alone decides on the mark to be awarded to a candidate, after having analysed the comments made by at least two markers and the marks proposed by them. The Ombudsman notes that the Selection Board decided, in this context, not to remark the complainant's written test, and thus confirmed the mark awarded to him. Taking into account the wide discretion that the Selection Board enjoys when assessing tests, the Ombudsman considers reasonable the procedure applied by EPSO when dealing with a request for reconsideration as regards the marking of the written test, that is, that it is the responsibility of the Selection Board to decide whether a new marking is necessary to deal properly with a request for reconsideration.

In the present case, the Ombudsman considers that, given his finding in paragraphs 2.11 and 2.12, there was no reason for the Selection Board to have the test marked by a third marker. The Ombudsman takes the view that the Selection Board dealt appropriately with the complainant's request and therefore finds no maladministration as regards this aspect of the complaint.

5 Claim

5.1 The complainant claimed that his request for reconsideration should be evaluated again, the necessary adjustment of his mark for the written test should be made and his name should be put on the reserve list.

5.2 In light of the Ombudsman's findings in paragraphs 2.18, 3.4 and 4.7, the complainant's claim cannot be sustained.

6 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO. The Ombudsman therefore closes the case.

The Director of EPSO will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2004 C 66A.

(2) OJ 1998 C 125 A.

(3) Case T-158/89 Van Hecken v CES [1991] ECR II-1341. Paragraph 24 of this case states the following: "(...) the division which exists between the powers of the appointing authority, on the one hand, and those of the Selection Board, on the other, whereby the appointing authority has a broad discretion in drawing up the requirements of the Competition whilst the Selection Board is bound by these requirements in carrying out its task under Article 30 of the Staff Regulations."

Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-57. Paragraph 41 of the case states the following: "as regards the appraisal of a possible breach of the Competition notice, it is settled case law that the Selection Board for a Competition has a wide discretion as regards the detailed content of the tests provided for within the framework of a Competition. The Court may not review the arrangements for the conduct of a test except to the extent necessary to ensure that the candidates were treated equally and that the choice made from among them was objective. It is likewise 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 Competition notice or is not consonant with the purposes of the tests or of the Competition."

(4) Case T-132/89 Gallone v Commission [1990] ECR II-549. Paragraph 27 of the case states the following: "The appointing authority enjoys a wide discretion in deciding upon the criteria of ability required for the posts that are to be filled and in determining, in the light of those criteria and in the interests of the service, the rules and conditions under which a Competition is organized. The Selection Board has considerable discretion as regards the arrangements for and the detailed content of the tests provided for within the framework of a Competition."

(5) Case T-371/03 Le Voci v Council [2005] ECR-SC I-A-209 and II-957. Paragraph 123 of the case states the following: "secrecy was introduced with a view to guaranteeing the independence of Selection Boards, and the objectivity of their proceedings, by protecting them from all external interference and pressures whether these come from the Community administration itself or the candidates concerned or third parties."

(6) Case T-294/03 Gibault v Commission [2005] ECR-SC I-A-141 and II-635. Paragraph 41 of the case states the following : "The Selection Board enjoys a broad discretion in evaluating Competition test results and the well-foundedness of its value judgments can be reviewed by the Community judicature only in clear cases of infringement of the rules governing its proceedings (...) manifest error or misuse of powers, or if it has manifestly exceeded the bounds of its discretion."

Case T-146/99 Teixeira Neves v Court of Justice [2002] ECR-SC I-A-159 and II-731. Paragraph 41 of the case states the following: "the assessments made by a Selection Board in a Competition (...) are the expression of value judgments as to the candidate's performance in the test and fall within the Selection Board's wide discretion. The Community judicature has no jurisdiction to review those decisions unless the rules which govern the proceedings of Selection Boards have been obviously infringed. The Selection Board, in assessing the candidates' professional knowledge and their abilities and motivation, is bound to base its decision exclusively and autonomously on the candidates' performances alone, in accordance with the requirements of the Notice of Competition."

(7) See Case 228/86 Goossens and others v Commission [1988] ECR 1819, paragraph 14.

(8) Case T-5/04 Scano v Commission [2005] ECR-SC I-A-205 and II-931. Paragraph 45 states the following: "S’agissant plus particulièrement du principe d’égalité de traitement, il revêt une importance très grande dans le cadre des procédures de concours, et il appartient au jury de veiller à ce que les épreuves présentent sensiblement le même degré de difficulté pour tous les candidats."

(9) According to paragraph 79, "However, it must be borne in mind that an irregularity during the conduct of the tests for a Competition does not affect the lawfulness of the tests unless it is substantive in nature and capable of distorting the results of the tests. Where such an irregularity occurs, it is for the defendant institution to prove that the irregularity did not affect the results of the tests."

(10) The Ombudsman understands the complainant to refer to the fact that while the Ombudsman's letter to EPSO dated 26 September 2006 indicated that the complainant argues that "EPSO has made a false statement that the complainant does not claim nor prove that he only obtained the former tests after sitting the written test", EPSO's reply stated that the complainant claims in particular that "EPSO made false statements when it stated that the complainant neither claimed nor demonstrated that he obtained the previous tests only after participating in the written tests". (Emphasis added by the Ombudsman).

(11) See Decision 2312/2004/MHZ, which states that: "candidates in competitions organised by EPSO communicate with EPSO. Moreover, in the event of complaints to the Ombudsman, it is EPSO which replies".

(12) See Case T-173/99 Elkaïm and Mazuel v Commission [2000] ECR-SC I-A-101 and II-433, paragraph 87; Case T-5/04 Scano v Commission [2005] ECR-SC I-A-205 and II-931; Case T-165/03 Vonier v Commission [2004] ECR-SC I-A-343 and II-1575.

(13) Case T-5/04 Scano v Commission [2005] ECR-SC I- A-205 and II-931. Paragraph 45 states the following: "S’agissant plus particulièrement du principe d’égalité de traitement, il revêt une importance très grande dans le cadre des procédures de concours, et il appartient au jury de veiller à ce que les épreuves présentent sensiblement le même degré de difficulté pour tous les candidats."

(14) The users described in the relevant question in Open Competition EPSO/A/16/04 have one technical tool at their disposal, which differs from the tools described in the relevant question in Open Competition EUR/A/127.

(15) A "migration strategy plan" can be defined as a series of steps that allow an organisation to evolve to newer hardware and software in order to keep pace with changing technology. It addresses issues such as user interface compatibility, database compatibility, transition support, system interface compatibility, and training.

(16) This statement was made by EPSO in its reply to the appeal submitted by the complainant under Article 90(2) of the Staff Regulations. EPSO did not make any such comments in its Opinion to the Ombudsman.

(17) See footnote 10 above.

(18) Case T-53/00 Angioli v Commission [2003] ECR-SC I-A-13 and II-73, paragraphs 91-94.