Strasbourg, 19 December 2007

Dear Mr X,

On 6 February 2007, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO"), concerning the latter's refusal to forward to you a copy of your admission test to Open Competition EPSO/X/X/X together with the list of the correct answers.

On 26 February 2007, I forwarded the complaint to the Director of EPSO, asked him to submit an opinion by 31 May 2007, and informed you accordingly. On 11 June 2007, EPSO sent the translation of its opinion into Italian, which I forwarded to you on 15 June 2007 with an invitation to make observations by the end of July 2007. I received your observations on 21 June 2007.

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

THE COMPLAINT

According to the complainant, the relevant facts are as follows.

The complainant took part in Open Competition EPSO/X/X/X, which was designed to constitute a reserve list of assistants having Italian as their main language.

The Open Competition had two initial admission tests, namely, tests (a) and (b). Test (a) consisted of a series of multiple choice questions to assess candidates' knowledge of the European Union and its institutions. Test (b) consisted of a series of multiple choice questions to assess the candidates' general ability, in particular their verbal and numerical reasoning skills. The tests were carried out using computer-based testing or "CBT" as a medium to answer the questions.

Candidates who obtained the highest overall scores in the admission tests and a pass-mark in each of the two admission tests were asked to submit a full application with a view to being admitted to the competition. The best 335 candidates were then selected for subsequent tests.

On 29 January 2007, the European Personnel Selection Office ("EPSO") informed the complainant that he was not admitted to the next stage of the Open Competition. On 30 January 2007, the complainant sent a message to EPSO asking to be given access to the questions to which he gave a wrong reply as well as to a copy the correct answers.

On the same date, EPSO replied that it could not satisfy the complainant's request. EPSO stated that "all the questions to which [the complainant] replied to during [his] admission tests were taken from a data base developed by EPSO. As this database (...) will be used in the framework of other competitions, EPSO cannot communicate the questions without seriously endangering the work of the Selection Board (...)." Furthermore, EPSO stated that any disclosure of the content of this database could place some candidates who might be informed about that content in a more advantageous position. EPSO further informed the complainant that sample tests are available on its website.

In his complaint to the Ombudsman, the complainant claimed that EPSO should send him a copy of his admission tests together with the list of the correct answers.

THE INQUIRY

The institution's opinion

EPSO's opinion can be summarised as follows.

The complainant was a candidate in Open Competition EPSO/X/X/X.

In accordance with Section B.1 of the Notice of Competition, there were two admission tests (in the second language of the candidate which had to be English, French or German), each comprising a series of multiple choice questions. Test (a) was designed to assess the candidates' knowledge of the European Union and its institutions and was marked on a scale of 0 to 20 points, with a pass-mark of 10. Test (b) was meant to assess the candidates' 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.

The complainant obtained the pass-mark in both tests but his overall mark was not sufficient to enable him to be ranked among the 335 candidates with the highest marks. The complainant obtained in fact 49.334 points, that is, 18,667 points for test (a) and 30.667 points for test (b) whilst the lowest mark among the best 335 candidates was 50.667 points.

On 29 January 2007, EPSO informed the complainant of his results and of the fact that he had not been admitted to the next stage of the Open Competition.

On 30 January 2007, the complainant asked EPSO by e-mail to provide him with a copy of his tests as well as with a copy of the correct answers.

On the same date, EPSO replied to the complainant that it could not provide him with the requested information. EPSO stated that the questions he had answered were part of an extensive database of questions classified on the basis of subject and difficulty. These questions 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 and not others.

EPSO stressed that the admission tests in the Open Competition in question were organised using new technology which enabled candidates to do tests directly on computers (that is, computer-based testing or "CBT"). CBT allows candidates to sit an individual test based on a random selection of the questions in the database, and to do so on the date of their choice, within a period of time set by EPSO. Since the questions used for Open Competition EPSO/X/X/X form an integral part of the database which is used on an ongoing basis both for current and future competitions, the information in the database cannot be disclosed. After an exam, candidates cannot take away their test papers or ask for a printout of the questions or of their answers.

Concerning the complainant's specific claim, EPSO pointed out that, if the complainant's request for access to documents were considered under Regulation 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"), such a request should have been dealt with, taking into account the principles, the requirements and the limits to the right of access established by the Regulation. However, in the present case, the complainant did not follow the procedures foreseen by Regulation 1049/2001.

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, under Article 2(1) of Regulation 1049/2001, the beneficiaries of the right of access to documents of the institutions are:

"[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State. That provision makes it clear that 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.

Second, the exceptions to access to documents, provided for by Article 4(1)(a) of Regulation No 1049/2001, are framed in mandatory terms. It follows that the institutions are obliged to refuse access to documents falling under any one of those exceptions once the relevant circumstances are shown to exist (...).

Consequently, 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 No 1049/2001."(3)

The right of access to documents could be therefore limited, namely, for reasons of public interest in order to guarantee the best selection of staff for Community institutions, in accordance with Regulation 1049/2001. Furthermore, 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 considered 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 the refusal to grant access to the questions/answers and to the list of correct 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. EPSO also considered that ad hoc access to tests, as part of a specific complaint procedure, would have a similarly adverse effect on the system of evaluation. EPSO also stated that disclosure of questions/answers could breach the principle of equal treatment if some candidates were to obtain the relevant questions/answers.

As regards the reasons for the decision to exclude a candidate from an open competition, EPSO stressed that, according to the relevant case-law, the communication of the mark received by an unsuccessful candidate constitutes sufficient justification of the Selection Board's decision. EPSO also stated that the communication of the mark enables candidates to establish whether the relevant decision is grounded or vitiated and therefore allows those who wish to do so to contest its legitimacy.

In the present case, the complainant was informed of his results and why he was not admitted to the next stage of the Open Competition in question.

EPSO finally stated that point E.4 of the Notice of Competition outlined what information candidates could request to receive concerning them directly and individually. Furthermore, according to the Guide for Candidates, they could have access to a copy of their written tests and of their evaluation sheet drafted by the Selection Board. In this regard, EPSO emphasised that the Guide did not refer to the possibility of having access to the questions contained in the CBT system.

The complainant's observations

In his observations on the opinion submitted by EPSO, the complainant did not add to his complaint, other than to state that he would have considered the information he requested from EPSO to be confidential and that he would not have divulged it to third parties.

THE DECISION

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

1.1 The complainant took part in computer-based testing ("CBT") admission tests in Open Competition EPSO/X/X/X. Since the overall mark that he obtained in both tests was not sufficient to place him amongst the 335 candidates with the highest marks, he was not admitted to the next stage of the Open Competition.

In his complaint to the Ombudsman, the complainant claimed that EPSO should send him a copy of his admission tests together with the list of the correct answers.

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

EPSO further 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 as well as 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(7) ("Regulation 1049/2001"), and on the relevant case-law of the Community Courts. In particular, EPSO argued that the question/answers of the CBT admission tests could not be disclosed to candidates because this would undermine the selection process.

1.3 The Ombudsman recalls that principles of good administration require that the information given to citizens should be as accurate and as complete as possible and that, reasonably, the best way to show candidates their mistakes would be to give them access to their own test papers.

1.4 The Ombudsman notes that EPSO took the view that, as regards the CBT test papers, candidates could not be given copies of their own test papers. EPSO explained its position in light of the existing rules on access to documents, namely, Regulation 1049/2001, by referring to a hypothetical situation(8), and to the relevant case-law of the Community Courts.

1.5 EPSO argued that that there are limits to the right of access, and, by way of example, referred to "reasons of public interest" (emphasis added), 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(9) to the effect 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."(10)

The Ombudsman points out, however, that EPSO has made no specific reference to one of the exceptions based on the protection of the public interest contained in Article 4(1)(a)(11). EPSO only refers to the interest of "safeguarding the objective of selecting the best staff for the European Institutions" which, according to EPSO, should also be subsumed under the notion of "public interest" in the sense of article 4(1)(a) of Regulation 1049/2001.

The Ombudsman recalls that according to settled case-law, the exceptions laid down in article 4 of Regulation 1049/2001 must be constructed and applied restrictively, so as not to defeat the general principle enshrined in that regulation(12).

The Ombudsman therefore concludes that, were EPSO to be trying to subsume the interest in "selecting the best staff for the European Institutions" under the public interest exceptions laid down in Article 4(1)(a) of that Regulation (which appears to be the case to the extent that EPSO opinion quotes the joined cases T-110/03, T-150/30 and T-405/03, Sison v Council), this would be a clearly incorrect approach, in light of the abundant and settled case law of the Community courts.

1.6 The Ombudsman notes, however, that EPSO appears to have also wished to refer to, and to rely on, the exception foreseen in Article 4(3) of Regulation 1049/2001 which allows refusal to disclose documents which are "[f]or internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution".

Indeed, EPSO's opinion 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 and future competitions. 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 have adverse effects for future competition procedures, by undermining the equal treatment of candidates, since some could acquire the questions/answers and others might not. 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.

The Ombudsman notes that EPSO's argument refers both to the ongoing competition and to other pending or future competitions.

The Ombudsman points out that disclosing to unsuccessful candidates the list of questions that they answered and of their answers does not necessarily mean that the questions/answers of the database will enter the public domain as a result.

Nevertheless, even if a considerable number of the questions, or even all the questions, were, in the course of time, to become known to the candidates in future competitions, the fact still remains that the questions given to these candidates are chosen randomly by the system from a huge database. Therefore the chance of their receiving exactly the same questions as those they already have knowledge of appears to be minimal and the possibility for them to memorise all the questions/answers of the huge database should be rather excluded. Moreover, the kind of questions/answers used in CBT tests (such as questions aimed at assessing the knowledge of EU affairs and verbal and numerical reasoning) can and normally should be constantly revised and updated in order to verify if they are still accurate and if they fulfil their role in selecting the most knowledgeable and deserving candidates.

On the basis of EPSO's explanation, the Ombudsman does not therefore see why the disclosure of the questions to candidates in the same or future competitions would necessarily undermine the selection process, that is, jeopardize EPSO´s objective of ascertaining the knowledge and abilities of candidates and of securing for the institutions the services of officials of the highest standards of ability, efficiency and integrity.

Hence, EPSO's above argument has not been substantiated.

1.7 Furthermore, as a justification for its refusal, 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.

Second, the Ombudsman notes that such argument can hardly be reconciled with EPSO's own practice of giving access to the questions and answers of pre-selections tests performed on paper and, indeed, to the questions of all other written exams.

Third, the Ombudsman underlines that the above mentioned case law of the Community courts relates to Article 6 of Annex III of the Staff Regulations and to the secrecy of the work of Selections Boards in competitions. The Ombudsman further notes that, in the present case, the "admission tests" were organised according to the CBT testing system, and that EPSO has failed to demonstrate that the conception, formulation, correction and marking of the questions and answers stored in the system and presented to candidates were in any way connected with the work of, or carried out under, the responsibility of the appointed Selection Board.

In light of the above, the Ombudsman concludes that EPSO has failed adequately to justify its refusal to give the complainant access to the information he had requested. This constitutes an instance of maladministration.

1.8 The Ombudsman points out that he has received a considerable number of complaints(15) in which EPSO has refused access to CBT questions/answers. In one of these, that is, complaint 370/2007/MHZ, he closed the case with a critical remark(16) and indicated that he would seriously consider opening an own-initiative inquiry in relation to EPSO's CBT. He took the view that an own-initiative inquiry into the overall structure of the CBT system used in competitions organised by EPSO would be likely to contribute to greater transparency in EPSO's recruitment procedures. He also took the view that such transparency would, in itself, be beneficial for candidates seeking to obtain more information about theses matters.

The Ombudsman opened the above-mentioned own-initiative inquiry on 22 November 2007 (OI/4/2007/ID).

1.9 In light of the above, the Ombudsman considers that no further inquiries are justified in the present complaint.

2 Conclusion

For the reasons explained in point 1.8 above, the Ombudsman considers that no further inquiries are justified into the present complaint. The Ombudsman therefore closes the case.

The complainant will be further informed of the results of the Ombudsman's own-initiative inquiry OI/4/2007/ID.

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) "[I]f the complainant's request for access to documents were consideredunder Regulation 1049/2001" (EPSO's opinion).

(9) Joined Cases T-110/03, T-150/03 and T-405/03 Sison v Council, cited above.

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

(11) 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, and the financial, monetary or economic policy of the Community or a Member State.

(12) See Case C-189/98 P Netherlands and van der Wal v Commission [2000] ECR I-1 , paragraph 27, and Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 55, and the case-law cited therein.

(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.

(15) 7/2007/PB; 350/2007/IP; 419/2007/IP; 1312/207/IP; 3819/2006/DK; 50/2007/DK; 1282/2007/DK; 370/2006/MHZ, 2626/2006/MHZ and 3746/2006/MHZ.

(16) "EPSO has failed adequately to justify its refusal to give the complainant access to the CBT questions/answers. This is an instance of maladministration." The decision can be found at the Ombudsman's website (http://www.ombudsman.europa.eu).