The background to the complaint

1. This complaint concerns the alleged errors committed by the European Personnel Selection Office ('EPSO') in relation to how it conducted group exercises in an open competition.

2. The complainant took part in Open Competition EPSO/AST/102/10 which was organised to constitute a reserve list of assistants in the audiovisual/web design fields. After EPSO informed him that he had been unsuccessful in the recruitment tests, he lodged a request for review. The complainant argued that EPSO had (i) committed manifest errors of appreciation; (ii) committed irregularities in the group exercise; (iii) set the computer-based test questions and also corrected them, which, he argued, was contrary to the case-law of the Court of Justice of the European Union[1]. With regard to (ii), the complainant pointed out that EPSO staff members took part in the group exercise because there were not enough candidates. He considered that the presence of EPSO staff members in the group exercise distorted the exercise. He maintained that most of the successful candidates participated in the two group exercises in which EPSO staff members took part.

3. The complainant received a reply from EPSO, which wrote on behalf of the President of the Selection Board. The reply dealt with the points he raised in his request for review. As regards the group exercise, the reply specified that the aim of the exercise is not for each candidate to reach a level which would have been set in advance, but for a discussion to take place between candidates, during which the assessors can evaluate their performance. According to the Selection Board, the practice of having a "mock candidate" is the best guarantee of equality of treatment. It ensures equality of treatment at different levels: the ratio between the quantity of information/number of participants is appropriate, the ratio between the interaction time/number of interactions per candidate is appropriate, and information about the identity and functions of the mock candidate is the same and is shared by all, be they mock candidates, real candidates, or Selection Board members. Moreover, this practice is applied in all competitions organised by EPSO.

4. As the complainant was not satisfied with the reply he received, he turned to the European Ombudsman.

The subject matter of the inquiry

5. The Ombudsman opened an inquiry into the following allegation.

Allegation:

EPSO committed irregularities in the group exercise because its staff took part in this exercise.

6. In his letter to EPSO opening the inquiry, the Ombudsman asked EPSO to provide data on the relative success of candidates present in groups in which a member of EPSO's staff participates compared to groups in which no EPSO staff member participates. The Ombudsman also asked EPSO to specify whether its staff members attend specific training to prepare them for participating in these group exercises.

The inquiry

7. The Ombudsman opened an inquiry on 31 October 2011 and asked EPSO for an opinion. EPSO submitted its opinion on 9 February 2012. The complainant submitted his observations on EPSO's opinion on 27 February 2012.

The Ombudsman's analysis and conclusions

A. Allegation that EPSO committed irregularities in the group exercise because its staff took part in this exercise

Arguments presented to the Ombudsman

8. The complainant made two main arguments as far as the group exercise is concerned. First, he essentially argued that EPSO took the place of the Selection Board within the framework of the group exercises. He pointed out that, in the open competition in which he participated, EPSO organised three group exercises for candidates. He took part in the first group exercise. Due to the insufficient number of candidates, EPSO staff members took part in the second and the third group exercises. He argued that no rule provides for such a possibility. EPSO staff is not selected by the Selection Board, he said. Second, the complainant alleged unequal treatment resulting from the participation of "mock candidates". He considered that the presence of EPSO staff members distorted the exercise, given that they may have brought the discussion around to the "solution". He noted that most of the successful candidates participated in the two group exercises in which EPSO staff members took part.

9. In its opinion, EPSO began by clarifying four aspects concerning the participation of mock candidates in group exercises. First, it said, a candidate's participation in the group exercise is assessed by the Selection Board, and not by EPSO or by any mock candidate. Second, the objective of the group exercise is not to obtain a specific result set out individually for each candidate beforehand but to create a discussion among candidates in order to allow the Selection Board members to observe and assess this discussion. Third, to achieve the aforementioned objective, group exercises need a minimum number of participants. The minimum number of participants varies because it depends on the number of real candidates present at a given group exercise. Therefore, having mock candidates is the only way to guarantee that a group exercise can achieve the aforementioned objective and that it can take place on the designated date if, for any reason, any of the candidates do not attend as expected. In some cases (for example in competitions requiring very specific profiles to which only a small number of persons correspond), it is even possible to know in advance how many mock candidates will be needed for a particular group exercise. Fourth, EPSO believes that, as a corrective measure, the participation of mock candidates is the best way to ensure equal treatment of all candidates in order to guarantee that (i) the amount of information/number of participants ratio is adequate; (ii) the interaction period of time/number of interactions by candidate ratio is adequate; and (iii) the information about the identity and functions of the mock candidate is the same and is shared by all, be they mock candidates, real candidates, or Selection Board members.

10. As regards the open competition in question, EPSO analysed the group exercises, taking as a reference the 66 candidates who applied for the fields of 'audiovisual archivists', 'audiovisual technicians', 'assistant audiovisual producer' and 'web and applications designer'. EPSO compared the scores obtained by the candidates, distinguishing between two groups: (i) candidates who did not have a mock candidate in their group (52); and (ii) candidates who had a mock candidate in their group (14). The scores obtained by the candidates demonstrate that the average score obtained in the group exercise was 0.5 points higher for candidates who had a mock candidate in their group. In fact, while candidates without mock candidates in their group exercise were awarded an average of 5.573076923 points, candidates with a mock candidate in their group exercise were awarded an average of 6.057142857 points. EPSO further stated that, from a statistical point of view, both groups are the same because the variance of scores does not allow for a distinction to be made between these two groups. In conclusion, it said, these results clearly demonstrate that having mock candidates in the group exercises did not affect candidates' scores in any way.

11. With regard to training, EPSO stated that mock candidates receive training in preparation for their participation in group exercises. This includes specific training on the role and the importance of mock candidates. During this specific training, EPSO's staff is also given a "mock candidate guide". Furthermore, before participating in the specific group exercise, mock candidates are duly briefed on their role in that particular group exercise.

12. In his observations on EPSO's opinion, the complainant informed the Ombudsman that he had decided to lodge an action for annulment concerning the Open Competition in question before the Civil Service Tribunal. He also drew the Ombudsman's attention to the judgments delivered by the General Court on 14 December 2011 in case T-361/10 P Commission v Pachtitis and case T-6/11 P Commission v Vicente Carbajosa and others.

The Ombudsman's assessment

13. Article 228 of the Treaty on the Functioning of the European Union empowers the European Ombudsman to receive complaints

"… concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies… except where the alleged facts are or have been the subject of legal proceedings."

Article 2(7) of the Ombudsman's Statute provides as follows:

"When the Ombudsman, because of legal proceedings in progress or concluded concerning the facts which have been put forward, has to declare a complaint inadmissible or terminate consideration of it, the outcome of any enquiries he has carried out up to that point shall be filed definitively."

14. In view of the information which the complainant provided to the Ombudsman, according to which he has decided to go to court, the Ombudsman is obliged to close his inquiry into this complaint.

C. Conclusions

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

The Ombudsman terminates his consideration of this complaint and closes the inquiry carried out so far without taking any further action.

The complainant and EPSO will be informed of this decision.

 

P. Nikiforos Diamandouros

Done in Strasbourg on 23 April 2012

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[1] The complainant referred to case F-35/08 Pachitis v Commission, judgment of 15 June 2010, not yet published in the ECR, paragraphs 58 and 70. That case was appealed to the General Court, which delivered its judgment on 14 December 2011. See case T-361/10 P Commission v Pachitis, judgment of 14 December 2011, not yet published in the ECR.