Decision of the European Ombudsman on complaint 3819/2006/DK against the European Personnel Selection Office

Strasbourg, 6 December 2007

Dear Mr X,

On 15 December 2006, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning the test results of your admission tests in Open Competition EPSO/AD/47/06 for Administrators AD5.

On 2 February 2007, I forwarded the complaint to the Director of EPSO. EPSO sent the French version of its opinion on 17 April 2007, and its English translation on 7 May 2007. I forwarded it to you with an invitation to make observations, if you so wished. No observations have been received from you.

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

THE COMPLAINT

The complainant, a Romanian national, participated in Open Competition EPSO/AD/47/06, organised by the European Personnel Selection Office ("EPSO") to recruit administrators (AD5) with Romanian citizenship. The complainant did not pass the admission tests, since the overall mark he obtained was not sufficient for him to be included amongst the candidates with the best marks in these tests.

By e-mail of 14 December 2006, the complainant asked EPSO to re-evaluate his admission tests, and to provide his with information about the possible cancellation of certain questions and with a copy of the questions and the correct answers.

In its reply of 15 December 2006, EPSO confirmed the complainant's admission tests results and explained that incorrect questions had been cancelled for all candidates who received such questions, but that the complainant did not receive any. It further explained that it could not provide the complainant with a copy of the questions and the correct answers because these questions formed part of an extensive database of questions, which were also used in other competitions and that it could not therefore divulge questions from this database without undermining the Selection Board's decision-making process.

On 21 December 2006, the complainant submitted the present complaint to the Ombudsman. In his complaint, the complainant alleged that

1. EPSO failed to provide valid and adequate grounds for refusing to give him a copy of the questions and the correct answers;
2. many test questions in the admission tests in Open Competition EPSO/AD/47/06 were wrong.

By letter of 2 February 2007, the Ombudsman informed the complainant that, according to Article 195 of the Treaty establishing the European Community, there were insufficient grounds for an inquiry into the second allegation because it was too general in nature. The Ombudsman therefore requested that EPSO submit an opinion on the first allegation only. The Ombudsman also asked EPSO to provide adequate information about how the database it had referred to in its e-mail of 15 December 2006 to the complainant was established and how it is used in the context of Open Competitions organised by it.

THE INQUIRY

EPSO's opinion

In its opinion, EPSO first recalled the background of the case by explaining that the complainant was a candidate in Open Competition EPSO/AD/47/06, for which the Notice of Competition was published on 21 June 2006 in Official Journal C 152 A.

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) was designed to assess knowledge of the European Union, its institutions and policies and was marked on a scale of 0 to 20 points, with a pass-mark of 10, and (ii) test (b) was meant to assess general ability, in particular verbal and reasoning skills, and was marked on a scale of 0 to 40 points, with a pass-mark of 20.

On 10 August 2006, EPSO informed candidates whose applications had been correctly registered that it had decided that the above tests would be computer-based tests ("CBT").

The complainant received the pass-mark in both tests but his overall mark was not sufficient to enable him to be ranked among the 410 candidates with the highest marks. He obtained 36 points whilst the lowest mark among the best 410 candidates was 42.666 points.

On 14 December 2006, EPSO informed the complainant of his results and that he was not admitted to the next stage of the competition.

By e-mail of 14 December 2006, the complainant asked EPSO to send him a copy of the test questions and the table of the correct answers, pointing out that he had doubts about his results since a number of questions contained errors and had been cancelled during the test.

On 15 December 2006, EPSO replied to the complainant confirming the results published in his EPSO file. It explained that certain test questions had to be cancelled but that he had not received any erroneous questions. It further explained that it was unable to send him the requested information, as the questions he had answered were part of an extensive database of questions and were also used in other competitions. EPSO could not therefore divulge questions from this database without undermining the Selection Board's decision-making process. Furthermore, any disclosure of the content of the database could benefit some candidates, thereby violating the equal treatment of candidates and compromising future selection procedures.

On the substance of the complaint, EPSO made, in summary, the following comments:

As regards the CBT, EPSO explained that a database was set up in co-operation with the various European institutions and with the help of a contractor in order to enable candidates to sit the admission tests on computer. This database contains a series of verbal and numerical reasoning questions and questions designed to assess knowledge of the European Union. The advantage of this tool is that it allows candidates to sit an individual test based on a random selection of the questions in the database, on the date of his or her choice, which falls within a period of time set by EPSO. Admission tests therefore 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. As the questions in the database are being used constantly, both for ongoing and future competitions, 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(1) ("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(2). 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 the 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. "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."(3)

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(4) and argued further that, in the present case, the Staff Regulations have a specific objective, justified by reasons of public interest.

Furthermore, EPSO referred to Case T-376/03 Hendrickx v Council(5) and the case-law cited therein, and in particular, Case T-53/00 Angioli v Commission(6). 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 of the Staff Regulations, which enshrines the principle that the Selection Board's proceedings should be secret.

EPSO therefore considered that it was not possible to provide the complainant with a copy of computer-generated questions and his replies. EPSO reiterated that it could not release the computer-generated questions put to a candidate without undermining the selection procedure, since doing so would benefit future candidates, could interfere with the proceedings of future competitions, undermine the equal treatment of candidates, and have damaging effects on the competition procedures.

EPSO also pointed out that Article 43 of Regulation 1049/2001 provides that access to a document will be refused "unless there is an overriding public interest in disclosure". The interest in the present case was clearly private and it was undoubtedly in the public interest that the objectivity of the selection procedure of the European institutions and the equal treatment of candidates were fully guaranteed.

EPSO therefore considered that the refusal to grant the complainant access to the questions and his answers was fully justified. EPSO argued that "general systemic and official" access to the questions in the database for any candidate who so requested would seriously damage this new method and 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 reasons for the complainant’s results, EPSO stressed that, according to the relevant case-law, the communication of the mark received by a candidate who was not successful constitutes a sufficient justification of the Selection Board's decision. The complainant was informed of his results and why he was not accepted to the next stage of the competition.

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Access to the questions and answers of a computer-based test ("CBT")

1.1 The complainant, who sat a computer-based test ("CBT") in Open Competition EPSO/AD/47/06 , alleged that the European Personnel Selection Office ("EPSO") failed to provide valid and adequate grounds for refusing to give him a copy of the questions and the correct answers.

1.2 In its opinion, EPSO stated, in summary, that it could not send him the information he requested, since the questions he had answered formed part of an extensive database of questions which were also used in other competitions and that, as a result, it could not divulge questions from this database without undermining the Selection Board's decision-making process.

EPSO took the view that requests for access to questions of and answers to CBTs, that is, the candidates' own answers and the correct answers, should be refused in all circumstances. 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(7) ("Regulation 1049/2001"). It argued, in particular, that the questions and answers of the CBTs could not be disclosed to candidates because this would undermine the selection process.

1.3 The Ombudsman notes that, in the context of his inquiries into complaints 2626/2006/MHZ, 3746/2006/MHZ and 370/2007/MHZ, which concerned similar cases, EPSO, in essence, invoked the same arguments in support of its challenged refusals to grant access. In his decisions on these complaints(8), the Ombudsman found that EPSO had failed adequately to justify its contested refusal and that this constituted an instance of maladministration. This finding is also made mutatis mutandis in the present case.

1.4 In his above-mentioned decisions, the Ombudsman also noted that he was already dealing with a considerable number of similar complaints in relation to which EPSO had adopted, in essence, the same position and supporting argumentation. In these circumstances, he considered it appropriate to launch an own-initiative inquiry into the overall structure of the CBTs used in competitions organised by EPSO. The own-initiative inquiry would provide EPSO with an opportunity to review its policies on the matter and search for ways to address the problems identified by the Ombudsman and, more broadly, to arrive at an equitable solution.

1.5 In light of the above, the Ombudsman will close the present case and all other on going cases dealing with the same question by referring to his critical remark in case 370/2007/MHZ(9). The Ombudsman will also inform the concerned complainants of the outcome of his own-initiative inquiry.

2 Conclusion

For the reasons explained in point 1.4 of the present decision above, the Ombudsman considers that no further inquiries are justified into the present complaint. The Ombudsman refers, however, to his critical remark in case 370/2007/MHZ, pointing out that EPSO has failed adequately to justify its refusal to give the complainant access to the CBT questions/answers and that this constitutes an instance of maladministration.

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) OJ 2001 L 145, p. 43.

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

(3) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, cited above, paragraphs 50-52.

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

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

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

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

(8) These decisions may be found on the Ombudsman's website (http://www.ombudsman.europa.eu).

(9) "EPSO has failed adequately to justify its refusal to give the complainant access to the CBT questions/answers. This is an instance of maladministration."