THE BACKGROUND TO THE COMPLAINT

1. On 29 March 2006, the complainant took part in Open Competition EPSO/AD/25/05 for the selection of administrators (AD) in the field of European Public Administration and Human Resources. The competition was organised by the European Personnel Selection Office (EPSO).

2. On 2 April 2007, EPSO informed him that he was among the successful candidates and that his name had therefore been placed on the competition's reserve list. On the same date, the complainant asked EPSO to inform him of the marks he had obtained in the different tests.

3. EPSO refused his request by stating that it only provides this type of information to unsuccessful candidates.

4. After a lengthy exchange of correspondence in which the complainant insisted on being informed of his marks, EPSO confirmed its refusal on the basis of its past practice. On 13 September 2007, the complainant submitted a complaint to the European Ombudsman.

THE SUBJECT-MATTER OF THE INQUIRY

5. In his complaint to the Ombudsman, the complainant submitted the following allegation and claim:

Allegation

EPSO has not provided a reasoned explanation as to why it cannot inform successful candidates in a competition of the results they obtained in the different tests, as it does for candidates who failed the competition.

Claim

EPSO should provide successful candidates with the marks they obtained in the different tests.

THE INQUIRY

6. By letter of 5 December 2007, the Ombudsman opened an inquiry into the allegation and claim put forward by the complainant and asked EPSO to submit an opinion on it by 29 February 2008. On 29 January 2008, EPSO submitted an opinion in French and a Spanish translation on 11 February 2008, which was sent to the complainant for his observations. The complainant sent his observations on 30 March 2008.

7. After a careful consideration of the opinion and observations, the Ombudsman made a provisional finding of maladministration. On 27 October 2008, in accordance with Article 3(5) of his Statute, he proposed a friendly solution to EPSO. On 18 December 2008, EPSO rejected the Ombudsman's proposal. EPSO's second opinion was sent to the complainant on 12 January 2009.

8. On 22 January 2009, the Ombudsman wrote to Mr Hustinx, European Data Protection Supervisor (EDPS), asking him for his opinion on the matter. On the same date, the Ombudsman informed both the complainant and EPSO of his initiative. On 4 February 2009, the EDPS replied to the Ombudsman's request.

9. On 20 February 2009, EPSO sent a second reply to the friendly solution proposal. On 23 February 2009, the complainant informed him that EPSO had granted his request and that his case was therefore settled.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. EPSO's alleged refusal to inform successful candidates of their marks and related claim

Arguments presented to the Ombudsman

10. The complainant argued that successful candidates should have the same right as unsuccessful applicants to know the marks they received from the Selection Board. In his view, this information may prove helpful in order to prepare for future interviews with prospective employers or indeed for future competitions. The complainant considered that EPSO had not put forward any appropriate reasons for its refusal to disclose the information he had requested.

11. In its opinion, EPSO argued that the information given to unsuccessful candidates concerning their scores in the written tests reflects EPSO's obligation to give reasons for its decisions to exclude candidates from a competition. Such decisions adversely affect the rights and/or interest of these candidates. Therefore, the decisions in question have to be reasoned, so that they can be reviewed in the event of an eventual appeal. The score given to unsuccessful candidates constitutes the reasoning which justifies their exclusion from the competition.

12. In contrast, the decision to include a candidate on a competition reserve list does not have an adverse effect on that candidate. Thus, EPSO would not need to include any further reasoning when communicating with the successful candidate. Moreover, in order to protect the principle of equal treatment amongst successful candidates and avoid potential discrimination, EPSO's policy has been not to inform successful candidates of their marks in the written tests. In the interinstitutional agreement which EPSO signed with all EU institutions, EPSO agreed not to introduce any elements which might discriminate among successful candidates. Any disclosure of the marks granted would make it possible for candidates to establish the comparative assessment carried out by the Selection Board, thereby violating not only the above interinstitutional agreement, but also the principle of equal treatment of successful candidates.

13. However, as regards the pre-selection tests, EPSO informs all candidates (both successful and unsuccessful) of their scores. These tests are eliminatory and the results obtained by the successful candidates are not taken into account for the subsequent written and oral tests.

14. In his observations, the complainant repeated his arguments. He pointed out that, according to EPSO, the selection of successful candidates by an institution does not depend exclusively on his/her place on the reserve list. It depends largely on the needs of the service and the profile of each candidate.

The Ombudsman's preliminary assessment leading to a friendly solution proposal

15. The Ombudsman found that, by refusing to provide successful candidates in a competition with the results obtained in the different tests, EPSO had disregarded the fundamental principle of transparency enshrined in Article 1 of the Treaty on European Union[1] and breached Article 22 of the European Code of Good Administrative Behaviour[2].

16. The Ombudsman referred to the reasons EPSO gave in order to justify its refusal and found that they were inconsistent with the relevant case-law[3] of the Community courts.

17. He also considered that EPSO's reasoning was unconvincing. First, the complainant's request does not involve the public disclosure of the marks obtained by all successful candidates, or their communication to the recruiting institutions. It would merely entail an individual communication to the applicant of the marks which he obtained. Moreover, it is not obvious why giving the information to a candidate who asked for it would breach the principle of equality of treatment and discriminate against other candidates who did not ask for that information. Even if a number of applications were made and several successful candidates were informed of their marks, the eventual comparison of those candidates' marks should be irrelevant for a recruiting institution when selecting appropriate employees. In effect, the choice made by that institution does not only depend on the order in which a candidate was placed on a reserve list. It also depends on the interests of the service, which have to be established by the concerned institution based on the particular needs of the vacant post and the profiles of the respective candidates.

18. In light of the above, the Ombudsman made the preliminary finding that, by refusing to provide successful candidates in a competition with the results obtained in the different tests, EPSO disregarded the fundamental principle of transparency. This was in breach of Article 22 of the European Code of Good Administrative Behaviour and amounted to an instance of maladministration. The Ombudsman therefore made the following proposal for a friendly solution:

"EPSO could reconsider its initial decision and provide the complainant with his results in the different tests of the competition."

The arguments presented to the Ombudsman by EPSO and the EDPS following his friendly solution proposal

19. EPSO first rejected the above proposal for a friendly solution and repeated its initial arguments.

20. The Ombudsman subsequently asked the EDPS whether and to what extent the data requested by the complainant could be released pursuant to Regulation (EC) No 45/2001[4]. The EDPS replied stating that the results of open competition tests must be considered as personal data. If the conditions for the applicability of the Regulation are met, the complainant should have the right of access to his test results for the competition in question. The EDPS also stated that EPSO did not put forward any arguments which could justify a restriction of the complainant's right to that data. Its refusal was therefore not in conformity with Regulation (EC) No 45/2001.

21. Then EPSO submitted a further reply. It stated that, on 30 January 2009, its Board of Directors had decided to allow all candidates in recruitment competitions to have access to their marks. Accordingly, EPSO forwarded to the complainant information concerning his score in competition EPSO/AD/25/05, as initially requested.

22. The complainant informed the Ombudsman that he was satisfied with the outcome of the case and thanked him for his successful intervention.

The Ombudsman's assessment after his friendly solution proposal

23. The Ombudsman is pleased that, further to his proposal for a friendly solution, EPSO has agreed to modify its policy and now allows all candidates in recruitment competitions to have access to their marks. The Ombudsman also notes that the complainant has expressed his satisfaction with this outcome.

24. In light of the above, the Ombudsman considers that the complainant's allegation and claim have been settled by EPSO.

B. Conclusion

The Ombudsman considers that the complainant's allegation and claim have been settled by EPSO. He therefore closes the case.

The complainant, the Director of EPSO and the EDPS will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 7 April 2009

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[1] "This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen."

[2] Article 22 of the Code provides as follows:

"1. The official shall, when he has responsibility for the matter concerned, provide members of the public with the information that they request. When appropriate, the official shall give advice on how to initiate an administrative procedure within his field of competence. The official shall take care that the information communicated is clear and understandable.

2. If an oral request for information is too complicated or too comprehensive to be dealt with, the official shall advise the person concerned to formulate his demand in writing.

3. If, because of its confidentiality, an official may not disclose the information requested, he or she shall, in accordance with Article 18 of this Code, indicate to the person concerned the reasons why he cannot communicate the information.

4. Further to requests for information on matters for which he has no responsibility, the official shall direct the requester to the competent person and indicate his name and telephone number. Further to requests for information concerning another Community institution or body, the official shall direct the requester to that institution or body.

5. Where appropriate, the official shall, depending on the subject of the request, direct the person seeking information to the service of the Institution responsible for providing information to the public."

The European Code of Good Administrative Behaviour is available on the Ombudsman's website: http://www.ombudsman.europa.eu/code/en/default.htm.

[3] Case C-254/95 P European Parliament v Angelo Innamorati [1996] ECR I-3423, pp. 30-33; Case F-74/07 Stefan Meierhofer v Commission, judgment of 14 October 2008, not yet reported in the ECR.

[4] Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data; OJ 2001 L 8, p. 1.