The background to the complaint

1. The complaint to the European Ombudsman concerns EPSO's refusal to give the complainant a copy of a selection board's evaluation sheet.

2. The complainant took part in Open Competition EPSO/AD/181-182/. She was not invited to participate in the assessment centre phase because she only obtained 40 points for her qualifications (the pass mark was 41 points).

3. The complainant requested a review of the result and a copy of the evaluation sheet concerning her qualifications. EPSO replied stating that her request had been made after the expiry of the deadline for making a request for information or a request for review (EPSO stated that the requests should have been made within 10 calendar days of the date of publication of the results).

The subject matter of the inquiry

4. The complainant alleged[1] that EPSO wrongly refused her access to the selection board's evaluation sheet concerning her qualifications.

5. The complainant claimed that EPSO should provide her with a copy of the evaluation sheet used by the selection committee to assess her application.

The inquiry

6. The Ombudsman opened an inquiry on 23 May 2012 and asked EPSO to submit an opinion on the complaint by 30 September 2012. The opinion was forwarded to the complainant with an invitation to make observations by 30 November 2012. The complainant did not submit any observations.

7. In his letter opening the inquiry, the Ombudsman asked EPSO to consider, when preparing its opinion, whether the 10-day deadline for requesting information is justified in light of the following considerations.

8. First, while a 10-day deadline for requesting a review seems justified for practical reasons , there is no such justification for imposing a short deadline for seeking information.

9. Second, limiting in time the right of a person to have access to his/her file directly restricts two fundamental rights, namely the right of access to one's own file, set out in Article 41 of the Charter of Fundamental Rights, and the right of access to data collected concerning oneself and (where necessary) to have it rectified, set out in Article 8(2) of the Charter of Fundamental Rights.

10. Third, the short deadline for seeking information also indirectly restricts the fundamental rights to seek judicial review and to complain to the Ombudsman. The Ombudsman noted in this regard that a candidate is not required to seek an internal review before going to court or having recourse to the Ombudsman. The respective two-month or two-year deadline applies as regards the exercise of these fundamental rights.

11. The Ombudsman noted that if a candidate requests information within the 10-day deadline, the answer is unlikely to arrive quickly enough to enable the candidate to make a well informed decision as to whether or not to request a review. Given that the short deadline for requesting a review is reasonable, the only way to make the review process effective would be automatically to provide all candidates with the evaluation sheet concerning their qualifications (in respect of the admission stage) and the answers to their written/practical tests (in respect of the assessment centre stage).

12. In addition, given the short deadline for requesting a review, the Ombudsman asked EPSO to inform him whether it has considered setting up a system generating automatic e-mails to candidates informing them that there is new information provided in their EPSO profiles.

13. On 8 July 2013, the Ombudsman made a draft recommendation to EPSO in respect of the complaint, asking for EPSO's detailed opinion. EPSO sent its detailed opinion on 30 September 2013, with further information provided on 29 October 2013. EPSO's detailed opinion on the draft recommendation was forwarded to the complainant with a request to submit her observations, if any, by 30 November 2013. The Ombudsman did not receive any observations from the complainant.

The Ombudsman's analysis and conclusions

A. The refusal to give access to the evaluation sheet

Arguments presented to the Ombudsman

14. The complainant argued that she should be given access to the evaluation sheet used to assess her application so that she would be able to see which criteria she was considered not to have met.

15. In its opinion, EPSO stated that, on 20 August 2010, the complainant was informed that she had not been invited to the assessment centre stage of the competition because, when assessing her qualifications, the Selection Board had awarded her fewer points than the required minimum. Having requested a review and a copy of the evaluation sheet and having been informed that her requests were time-barred, the complainant again asked, by e-mail dated 15 September 2010, to be provided with the evaluation sheet used by the Selection Board to assess her application. By e-mail dated 12 November 2010, EPSO informed the complainant that her request had been forwarded to the competition secretariat.

16. In EPSO's view, the complainant's arguments imply that she believes that she was given insufficient reasons for the refusal to grant her access to the evaluation sheet. However, the obligation to state reasons set out in Article 296 of the Treaty on the Functioning of the European Union has to be reconciled with the observance of the secrecy which applies to the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. Safeguarding this secrecy precludes disclosing the position adopted by individual members of selection boards or any details relating to personal or comparative assessments of candidates.

17. EPSO went on to state that, when the suitability of candidates is considered, the proceedings of the selection board are, above all, of a comparative nature and, accordingly, covered by the secrecy surrounding such proceedings. Consequently, according to established case-law, communication of the marks obtained constitutes a sufficient statement of reasons for decisions of selection boards and enables the EU courts to carry out an appropriate judicial review. Moreover, according to established case-law, a Selection Board cannot be required, when giving reasons for a candidate's failure in a test, to specify which of the candidate's answers were considered inadequate or to explain why. Such detailed reasons are not necessary to enable the Court (and hence the Appointing Authority) to exercise its power of review and, consequently, to enable the candidate to determine whether or not it is appropriate to lodge a complaint or, if need be, to bring an action in court.

18. EPSO therefore considered that the complainant received all the information that the applicable law defines as necessary to fulfil the obligation to state reasons. Nevertheless, EPSO apologised for not having responded to the complainant's e-mail dated 12 November 2010.

19. In response to the Ombudsman's concerns about the 10-day deadline, EPSO stated that the candidates' right to receive information envisages that unsuccessful candidates may receive, without compromising the secrecy of the proceedings of the selection board, information and documents that enable them to make an informed decision about the usefulness of challenging the selection board's decision. According to recent case-law, the 10-day deadline is justified because it enables unsuccessful candidates to obtain information and documents at least one month before the expiry of the deadline for filing an appeal before the Court or that for lodging a complaint with EPSO[2]. EPSO, therefore, did not see any indirect restriction of the fundamental right to seek judicial review or to complain to the Ombudsman.

20. According to EPSO, the right of access to data collected concerning oneself and to have it rectified, set out in Article 8(2) of the Charter of Fundamental Rights, cannot be affected, given that pursuant to Article 14 of Regulation 45/2001 on the protection of personal data[3], the data subject has the right, without delay, to have inaccurate or incomplete personal data rectified. In accordance with point 3.9 of the EDPS's[4] "Opinion on a notification for prior checking received from the Data Protection Officer of the European Commission on the system of 'Recruitment, by competition, of permanent staff for the European institutions or for Community bodies, offices and agencies'", dated 24 February 2006, "[t]he right of rectification ... can obviously apply only to factual data. Marks allocated could not under any circumstances be open to a right of rectification by the data subject."

21. As regards the suggestion to automatically provide all candidates with the evaluation sheets concerning their qualifications at the admission stage, as well as the answers to their written or practical tests at the assessment centre stage, EPSO again argued that when the suitability of candidates is determined, the proceedings of the selection board are of a comparative nature and, therefore, covered by the secrecy surrounding such proceedings.

22. In respect of the suggestion that automatic e-mails could be generated to inform candidates that there is new information in their EPSO profiles, EPSO stated that it has developed a 'robomail' notification alerting candidates when they have a new message in their EPSO account. EPSO pointed out, however, that this is an additional service from which candidates cannot derive any rights.

The Ombudsman's assessment leading to a draft recommendation

23. EPSO argued, in sum, that the complainant could not be granted access to the evaluation sheet in respect of her qualifications because of the secrecy which surrounds the proceedings of selection boards by virtue of Article 6 of Annex III to the Staff Regulations. In this respect, the Ombudsman reiterated the finding he made in the context of his own-initiative inquiry OI/5/2005/PB[5]: the provision in the Staff Regulations stipulating that the proceedings of the selection boards shall be secret does not prevent disclosure to candidates of the evaluation criteria or the detailed breakdown of marks in respect of a particular test. The outcome of that own-initiative inquiry was that EPSO undertook to provide candidates with an evaluation sheet indicating not only the global final mark, but also the evaluation criteria used and the partial marks awarded for each criterion.

24. The Ombudsman further noted in this respect that, according to footnote 1 of the relevant notice of competition, "[c]andidates not invited to the assessment centre can obtain a copy of the selection board's evaluation sheet concerning their qualifications by submitting a request within 10 days of being notified of the results." Accordingly, EPSO itself has adopted the position that the evaluation sheet was not covered by the secrecy surrounding the proceedings of the Selection Board during the 10-day period following the communication to the candidates of their results. If the evaluation sheet was not covered by the secrecy surrounding the proceedings of the Selection Board during that period, logically and necessarily, the Ombudsman did not understand the process of reasoning by which it could have become covered by the secrecy surrounding the proceedings of the Selection Board after that period.

25. In respect of EPSO's reference to recent case-law, the Ombudsman noted that the judgment to which EPSO referred underlines EPSO's obligation to respect the deadlines for responding to requests for information made by candidates in order to enable them to exercise the right to make an informed decision as to whether or not to challenge decisions taken by selection boards[6]. Although the judgment also refers to the short deadline for candidates to make requests for information[7], it does not suggest that a right for candidates to obtain information beyond that deadline would be excluded.

26. On the basis of the above, the Ombudsman did not find convincing EPSO's arguments in support of its refusal to provide the complainant with access to the selection board's evaluation sheet concerning her qualifications, thereby limiting her fundamental right of access to her file[8] and to data collected concerning her[9]. The Ombudsman addressed EPSO's unjustified refusal, which constitutes an instance of maladministration, by making the following draft recommendation:

Taking into account the Ombudsman's findings, EPSO should provide the complainant with a copy of her evaluation sheet concerning her qualifications.

27. The Ombudsman acknowledged the improvement, in respect of informing candidates, brought about by the 'robomail' system. He did not exclude the possibility, however, that further improvements could be made. Given the lack of valid reasons put forward by EPSO for keeping the evaluation sheet secret, and with a view to allowing candidates the fullest possible right to review, EPSO could reconsider the possibility of automatically providing all candidates with their evaluation sheets. The Ombudsman stated that he would further consider this issue when evaluating EPSO's reasoned opinion on the draft recommendation and that he would welcome EPSO's position also in this respect.

The arguments presented to the Ombudsman after the draft recommendation

28. In its detailed opinion on the draft recommendation, EPSO stated that it is currently implementing a project aimed at improving the quality of its communication with candidates. This involves establishing clear and public policy guidelines for, amongst others, cases such as the complainant's. EPSO emphasise that it considers transparency in its processes to be of the highest importance. This is evidenced by the introduction of the new competition methodology, with a new model of competition notices and a Guide to open competitions, which contains the common rules applicable to all competition procedures.

29. EPSO stated that since organising the competition in which the complainant participated, it has revised its policy and it now automatically provides candidates applying for open competitions with information on the assessment of their talent screener. EPSO stated that it would thus take the Ombudsman's draft recommendation on board and send the complainant the requested information.

30. EPSO subsequently provided the Ombudsman with a copy of its letter to the complainant by which it provided the complainant with the evaluation sheet showing the criteria, weighting and points awarded for her qualifications.

The Ombudsman's assessment after the draft recommendation

31. EPSO has provided the complainant with a copy of her evaluation sheet concerning her qualifications. EPSO has also changed its general policy in this regard and it now provides candidates automatically with information on the assessment of their qualifications. EPSO has thus fully accepted the draft recommendation and addressed the Ombudsman's concerns about information to candidates. The Ombudsman thanks EPSO for its constructive and transparent approach to the matter.

B. Conclusions

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

EPSO has accepted the Ombudsman's draft recommendation.

The complainant and EPSO will be informed of this decision.

 

Emily O'Reilly

Done in Strasbourg on 23 January 2014

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[1] The complainant also alleged that EPSO wrongly excluded her from participating in the open competition and she claimed that EPSO should: (1) Re-evaluate her application; and (2) In the event the re-evaluation requested under claim (1) would show that she should have been invited to that stage in the competition, allow her to attend the assessment centre stage. However, the Ombudsman found that there were insufficient grounds to include this allegation and these claims in his inquiry for the following reasons. Given the organisational and time constraints involved in organising competitions, the Ombudsman considered it reasonable for EPSO to set strict and short deadlines for requests for reviews at the different stages of competitions. The aim of the allegation and related claims could only be attained by setting aside these valid reasons for setting strict deadlines.

[2] Case F-96/09 Martorell v Commission, judgment of 18 September 2012, not yet published in the ECR, paragraph 47.

[3] 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.

[4] European Data Protection Supervisor.

[5] The decision is available at: www.ombudsman.europa.eu/en/cases/decision.faces/en/3706/html.bookmark

[6] Case F-96/09 Martorell v Commission, cited in footnote 3 above. Paragraph 48 of the judgment reads as follows: "It follows from the analysis that has just been made that EPSO's strict observance of the specific right recognised in favour of candidates, both in respect of the content of this right and the time limit for providing a reply, reflects the duties which result from the principle of good administration, the public's right of access to documents and the right to an effective remedy, in accordance with Articles 41, 42 and 47 of the Charter of Fundamental Rights of the European Union. Accordingly, besides possibly leading eliminated candidates to bring an action or lodge a complaint without being in possession of sufficient information, EPSO's non-observance of the specific right recognised in favour of candidates may constitute a wrongful act in the performance of public duties which could, in some circumstances, give rise to a right to compensation on the part of the candidate" (unofficial translation and. emphasis added).

[7] Case F-96/09 Martorell v Commission, cited in footnote 3 above, paragraph 47.

[8] Article 41(2)(b) of the Charter of Fundamental Rights of the European Union.

[9] Article 8(2) of the Charter of Fundamental Rights of the European Union