Current language:
- EN English
Draft recommendation to the European Parliament in complaint 610/99/IP
Recommendation
Case 610/99/IP - Opened on Monday | 14 June 1999 - Recommendation on Thursday | 27 July 2000 - Decision on Friday | 11 May 2001
(Made in accordance with Article 3 (6) of the Statute of the Ombudsman.(1))
On 28 May 1999 Mrs B. lodged a complaint with the European Ombudsman against the European Parliament, concerning her participation in competition EUR/C/135 organised by the institution.
The complainant participated in competition EUR/C/135 organized by the European Parliament. On 22 March 1999 she received a letter dated on 19 March 1999 in which the Selection Board informed her that the marks obtained in the tests were below the minimum required. Therefore, she was excluded from the competition.
On 27 March 1999, the complainant requested the Selection Board to re-examine her tests and to be allowed to have a copy of her own marked examination papers. By letter of 19 May 1999, the Chairman of the Selection Board confirmed the marks she had received were correct. Furthermore, the Selection Board refused to the complainant the access to her own marked examination papers on the grounds of the confidentiality of the Selection Board's work.
On 28 May 1999 the complainant lodged a complaint with the Ombudsman, in which she made the following allegations:
1) Lack of transparency in the assessment of the tests by the Selection Board.
2) Refusal by the Selection Board to allow her access to her own exam marked papers.
The Parliament's opinion
In its opinion on the complaint the Parliament pointed out that by letter of 19 March 1999, the Chairman of the Selection Board replied to the complainant, informing her that it had acceded to her request to re-examine the tests.
In that letter, the Chairman of the Selection Board also informed the complainant that the correction of tests 1 a) and 1 b) had been carried out by an optical reader. Otherwise, test 1 c) had been corrected anonymously by several correctors on the basis of the criteria previously fixed by the Selection Board.
After the re-examination of the tests, the Selection Board confirmed the marks received by the complainant. The complainant had only reached 11 points in test 1.c whereas the minimum required was 25 points. She was therefore excluded from the competition and informed accordingly.
As regards the refusal to give access to her marked examination papers, the Parliament reiterated its position. It refused the access on the basis of the confidentiality of the Selection Board's work and recalled the case-law of the Community Courts in this field(2). According to the Parliament interpretation, the Appointing Authority is prohibited from providing candidates with their test papers with the corrections and comments made by Selection Board members.
The complainant's observations
The Ombudsman forwarded the Parliament's opinion to the complainant with an invitation to make observations. In her observations of 22 November 1999, the complainant basically maintained her original claims.
1. Assessment of the tests by the Selection Board
1.1 In her complaint the complainant alleged lack of transparency in the assessment of the tests by the Selection Board.
1.2 In its opinion the European Parliament pointed out that in his letter of 19 March 1999, the Chairman of the Selection Board informed the complainant that, upon her request, a re-examination of her tests was carried out. The Selection Board confirmed that since the marks reached by the complainant in the tests were above the minimum required she was not admitted to the next stage of the competition.
1.3 As established by Community case-law, in assessing the results of tests, Selection Boards enjoy a discretion, which can only be reviewed to ascertain whether its exercise has been vitiated by a manifest error or by a misuse of powers, or whether the Selection Board has manifestly exceeded the limits of its discretion(3).
1.4 Furthermore, a decision adversely affecting a person should state the reasons on which it is based. However, as far as decisions taken by a Selection Board in a competition are concerned, the obligation to state reasons must be reconciled with the observance of secrecy surrounding the proceedings of Selection Board.
Taking account of this, communication to candidates of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board's decision are based.
In view of the information submitted by the complainant, the Ombudsman has found no evidence which might question the judgements made by the Selection Board. The Ombudsman has therefore concluded that the Selection Board acted within the limits of its legal authority. Furthermore, it appears that the Selection Board gave reasons of its decision, informing the complainant about the marks he has obtained in each test. The Ombudsman inquiries therefore do not reveal any instance of maladministration in relation to this aspect of the case.
2 Access to the marked examination paper
2.1 One of the complainant's claims concerned the Selection Board's refusal to allow her access to a marked copy of her examination.
2.2 The Parliament refused the access on the basis of the confidentiality of the Selection Board's work and recalled the case-law of the Community Courts. According to the Parliament's interpretation, the Appointing Authority is prohibited from providing candidates with their test papers with the corrections and comments made by Selection Board members.
The European Ombudsman own initiative inquiry 1004/97/(PD)GG
2.3. The secrecy of recruitment procedures has been the subject of an own initiative inquiry (1004/97/(PD)GG) addressed by the European Ombudsman in November 1997 to the European Commission. In his letter opening the own initiative inquiry, the Ombudsman referred to a number of complaints he has received about lack of transparency in recruitment matters. He also pointed out that since for many citizens competitions represent their first contact with the Community institutions, it would be valuable if the impression received by citizens in these occasions were positive.
2.4. Concerning candidates' access to their own marked examination papers, the institution justified its refusal on the basis of Article 6 of Annex III of the Staff Regulations and on the wide discretionary powers of Selection Boards.
2.5. According with the Court of Justice(4), the secrecy of the Selection Board's work was introduced with a view to guaranteeing the independence of members of selection boards and the objectivity of their proceedings, by protecting them from all possible external interference or pressures.
However, the Ombudsman pointed out in his own initiative inquiry that if on the grounds of Article 6 of Annex III of the Staff Regulations the deliberations of the Selection Board must remain secret, this does not necessarily mean that a candidate should be prevented from seeing his/her marked examination papers.
Furthermore, the Ombudsman underlined that he was not aware of any provision of Community law or case-law which would prevent the institutions from allowing candidates to have access to their tests. When a candidate requests to have access to the marked examination papers of which he/she is the author, the Ombudsman considered that there were no reasons to justify a refusal.
The disclosure of such a document is in no way in conflict with the requirement that the proceedings of Selection Boards shall be secret since it does not concern the deliberations of Selection Boards. On the contrary, if candidates were given access to their own marked examination papers, they would have the opportunity to see their mistakes and thus to improve their future performances. Their confidence in the Community administration would thereby be strengthened.
2.6. As a result of his own initiative inquiry, the Ombudsman made a draft recommendation to the institution on 8 March 1999. He considered that, in its future competitions, the Commission should give candidates in written examinations access to their own marked examination scripts upon request. He also prepared a special report that has been sent to the European Parliament on 18 October 1999.
By letter of 13 December 1999, the President of the European Commission accepted the recommendations made by the Ombudsman in his report and informed him that all the necessary legal and organisational arrangements would be proposed in order to give candidates access to their own marked examination papers, upon request, from 1 July 2000.
Specific points raised by the Parliament in the present case
2.7. The European Parliament claims that it follows from the judgement of the Court of Justice in case C-254/95(5) that it could not grant the complainant access to her marked examination papers without infringing its obligation to maintain the secrecy of the proceedings of the Selection Board, in accordance with Article 6 of Annex III to the Staff Regulation. In that case, the Court had to rule on the question whether the communication of the marks obtained in the various tests constituted an adequate statement of the reasons on which the Selection Board's decision was based. The Court answered this question in the affirmative, pointing out that the obligation to state reasons had to be reconciled with observance of the secrecy of the proceedings of selection boards. The Court concluded that observance of this secrecy therefore precluded both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates(6).
2.8 The Ombudsman notes that the said judgment of the Court is concerned with the administration's duty to give reasons for its decisions. However, the Ombudsman' s view that failure to grant a candidate access to his or her marked examination papers constitutes maladministration is based not on the duty to give reasons but on the obligation to take decisions as openly as possible which, as the Treaty of Amsterdam has confirmed, represents one of the fundamental principles of the administrative law of the European Communities. The European Parliament's reliance on the judgment of the Court of Justice in the Innamorati case is therefore mistaken.
The Ombudsman considers that the Parliament's refusal to give the complaint the possibility to have a copy of her own marked examination papers, constitutes therefore an instance of maladministration. Given that in view of the position adopted by the Parliament it does not appear possible to achieve a friendly solution, the Ombudsman considers it appropriate to make the following draft recommendation, in accordance with Article 3 (6) of his Statute:
In accordance with Article 3 (6) of the Statute of the Ombudsman, the European Parliament shall send a detailed opinion by 31 October 2000. The detailed opinion could consist of acceptance of the Ombudsman's decision and a description of the measures taken to implement the recommendation.
The complainant will be informed of this draft recommendation.
Strasbourg, 27 July 2000
Jacob SÖDERMAN
THE COMPLAINT
On 28 May 1999 Mrs B. lodged a complaint with the European Ombudsman against the European Parliament, concerning her participation in competition EUR/C/135 organised by the institution.
The complainant participated in competition EUR/C/135 organized by the European Parliament. On 22 March 1999 she received a letter dated on 19 March 1999 in which the Selection Board informed her that the marks obtained in the tests were below the minimum required. Therefore, she was excluded from the competition.
On 27 March 1999, the complainant requested the Selection Board to re-examine her tests and to be allowed to have a copy of her own marked examination papers. By letter of 19 May 1999, the Chairman of the Selection Board confirmed the marks she had received were correct. Furthermore, the Selection Board refused to the complainant the access to her own marked examination papers on the grounds of the confidentiality of the Selection Board's work.
On 28 May 1999 the complainant lodged a complaint with the Ombudsman, in which she made the following allegations:
1) Lack of transparency in the assessment of the tests by the Selection Board.
2) Refusal by the Selection Board to allow her access to her own exam marked papers.
THE INQUIRY
The Parliament's opinion
In its opinion on the complaint the Parliament pointed out that by letter of 19 March 1999, the Chairman of the Selection Board replied to the complainant, informing her that it had acceded to her request to re-examine the tests.
In that letter, the Chairman of the Selection Board also informed the complainant that the correction of tests 1 a) and 1 b) had been carried out by an optical reader. Otherwise, test 1 c) had been corrected anonymously by several correctors on the basis of the criteria previously fixed by the Selection Board.
After the re-examination of the tests, the Selection Board confirmed the marks received by the complainant. The complainant had only reached 11 points in test 1.c whereas the minimum required was 25 points. She was therefore excluded from the competition and informed accordingly.
As regards the refusal to give access to her marked examination papers, the Parliament reiterated its position. It refused the access on the basis of the confidentiality of the Selection Board's work and recalled the case-law of the Community Courts in this field(2). According to the Parliament interpretation, the Appointing Authority is prohibited from providing candidates with their test papers with the corrections and comments made by Selection Board members.
The complainant's observations
The Ombudsman forwarded the Parliament's opinion to the complainant with an invitation to make observations. In her observations of 22 November 1999, the complainant basically maintained her original claims.
THE DECISION
1. Assessment of the tests by the Selection Board
1.1 In her complaint the complainant alleged lack of transparency in the assessment of the tests by the Selection Board.
1.2 In its opinion the European Parliament pointed out that in his letter of 19 March 1999, the Chairman of the Selection Board informed the complainant that, upon her request, a re-examination of her tests was carried out. The Selection Board confirmed that since the marks reached by the complainant in the tests were above the minimum required she was not admitted to the next stage of the competition.
1.3 As established by Community case-law, in assessing the results of tests, Selection Boards enjoy a discretion, which can only be reviewed to ascertain whether its exercise has been vitiated by a manifest error or by a misuse of powers, or whether the Selection Board has manifestly exceeded the limits of its discretion(3).
1.4 Furthermore, a decision adversely affecting a person should state the reasons on which it is based. However, as far as decisions taken by a Selection Board in a competition are concerned, the obligation to state reasons must be reconciled with the observance of secrecy surrounding the proceedings of Selection Board.
Taking account of this, communication to candidates of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board's decision are based.
In view of the information submitted by the complainant, the Ombudsman has found no evidence which might question the judgements made by the Selection Board. The Ombudsman has therefore concluded that the Selection Board acted within the limits of its legal authority. Furthermore, it appears that the Selection Board gave reasons of its decision, informing the complainant about the marks he has obtained in each test. The Ombudsman inquiries therefore do not reveal any instance of maladministration in relation to this aspect of the case.
2 Access to the marked examination paper
2.1 One of the complainant's claims concerned the Selection Board's refusal to allow her access to a marked copy of her examination.
2.2 The Parliament refused the access on the basis of the confidentiality of the Selection Board's work and recalled the case-law of the Community Courts. According to the Parliament's interpretation, the Appointing Authority is prohibited from providing candidates with their test papers with the corrections and comments made by Selection Board members.
The European Ombudsman own initiative inquiry 1004/97/(PD)GG
2.3. The secrecy of recruitment procedures has been the subject of an own initiative inquiry (1004/97/(PD)GG) addressed by the European Ombudsman in November 1997 to the European Commission. In his letter opening the own initiative inquiry, the Ombudsman referred to a number of complaints he has received about lack of transparency in recruitment matters. He also pointed out that since for many citizens competitions represent their first contact with the Community institutions, it would be valuable if the impression received by citizens in these occasions were positive.
2.4. Concerning candidates' access to their own marked examination papers, the institution justified its refusal on the basis of Article 6 of Annex III of the Staff Regulations and on the wide discretionary powers of Selection Boards.
2.5. According with the Court of Justice(4), the secrecy of the Selection Board's work was introduced with a view to guaranteeing the independence of members of selection boards and the objectivity of their proceedings, by protecting them from all possible external interference or pressures.
However, the Ombudsman pointed out in his own initiative inquiry that if on the grounds of Article 6 of Annex III of the Staff Regulations the deliberations of the Selection Board must remain secret, this does not necessarily mean that a candidate should be prevented from seeing his/her marked examination papers.
Furthermore, the Ombudsman underlined that he was not aware of any provision of Community law or case-law which would prevent the institutions from allowing candidates to have access to their tests. When a candidate requests to have access to the marked examination papers of which he/she is the author, the Ombudsman considered that there were no reasons to justify a refusal.
The disclosure of such a document is in no way in conflict with the requirement that the proceedings of Selection Boards shall be secret since it does not concern the deliberations of Selection Boards. On the contrary, if candidates were given access to their own marked examination papers, they would have the opportunity to see their mistakes and thus to improve their future performances. Their confidence in the Community administration would thereby be strengthened.
2.6. As a result of his own initiative inquiry, the Ombudsman made a draft recommendation to the institution on 8 March 1999. He considered that, in its future competitions, the Commission should give candidates in written examinations access to their own marked examination scripts upon request. He also prepared a special report that has been sent to the European Parliament on 18 October 1999.
By letter of 13 December 1999, the President of the European Commission accepted the recommendations made by the Ombudsman in his report and informed him that all the necessary legal and organisational arrangements would be proposed in order to give candidates access to their own marked examination papers, upon request, from 1 July 2000.
Specific points raised by the Parliament in the present case
2.7. The European Parliament claims that it follows from the judgement of the Court of Justice in case C-254/95(5) that it could not grant the complainant access to her marked examination papers without infringing its obligation to maintain the secrecy of the proceedings of the Selection Board, in accordance with Article 6 of Annex III to the Staff Regulation. In that case, the Court had to rule on the question whether the communication of the marks obtained in the various tests constituted an adequate statement of the reasons on which the Selection Board's decision was based. The Court answered this question in the affirmative, pointing out that the obligation to state reasons had to be reconciled with observance of the secrecy of the proceedings of selection boards. The Court concluded that observance of this secrecy therefore precluded both disclosure of the attitudes adopted by individual members of selection boards and disclosure of any factors relating to individual or comparative assessments of candidates(6).
2.8 The Ombudsman notes that the said judgment of the Court is concerned with the administration's duty to give reasons for its decisions. However, the Ombudsman' s view that failure to grant a candidate access to his or her marked examination papers constitutes maladministration is based not on the duty to give reasons but on the obligation to take decisions as openly as possible which, as the Treaty of Amsterdam has confirmed, represents one of the fundamental principles of the administrative law of the European Communities. The European Parliament's reliance on the judgment of the Court of Justice in the Innamorati case is therefore mistaken.
The Ombudsman considers that the Parliament's refusal to give the complaint the possibility to have a copy of her own marked examination papers, constitutes therefore an instance of maladministration. Given that in view of the position adopted by the Parliament it does not appear possible to achieve a friendly solution, the Ombudsman considers it appropriate to make the following draft recommendation, in accordance with Article 3 (6) of his Statute:
- The Parliament shall allow the complainant to have access to her own marked examination papers.
In accordance with Article 3 (6) of the Statute of the Ombudsman, the European Parliament shall send a detailed opinion by 31 October 2000. The detailed opinion could consist of acceptance of the Ombudsman's decision and a description of the measures taken to implement the recommendation.
The complainant will be informed of this draft recommendation.
Strasbourg, 27 July 2000
Jacob SÖDERMAN
(1) Decision 94/262 of 9 March 1994 of the European Parliament on the Regulations and General Conditions Governing the Performance of the Ombudsman's Duties, OJ 1994 L 113/5.
(2) Case C - 254/95 P Angelo Innamorati v European Parliament, [1996] ECR I - 3423.
(3) See, case T-46/93, Fotini Michäel-Chiou v Commission [1994] ECR I-A-0297; par. 48; case 40/86, Georges Kolivas v Commission [1987] ECR 2643; par. 11.
(4) Case 89/79 Bonu v Council [1980] ECR 553, par. 5.
(5) European Parliament v Angelo Innamorati [1996] ECR I - 3423.
(6) Paragraph 24 of the judgment.