(Made in accordance with Article 3 (6) of the Statute of the European Ombudsman(1))

SUMMARY

The complaint concerned the European Parliament's refusal to grant the complainant access to a list of names of successful candidates on the reserve list of Open Competition EUR/C/153/98.

The Parliament considers that the protection of personal data, the Constitutions of the Member States and the Charter of Fundamental Rights prevent it from supplying the list of names of successful candidates without the consent of the persons concerned.

The European Ombudsman's view is that the right to privacy with respect to the processing of personal data under the Directive and the Charter of Fundamental Rights does not prevent the European Parliament from announcing in future notices of competition that the names of successful candidates will be made public.

The Ombudsman therefore makes a draft recommendation that the Parliament should make sure that in future competitions the list of names of successful candidates is made public.

THE COMPLAINT

The complainant participated in Open Competition EUR/C/153/98 for Finnish language typists. On 7 November 2000, he was informed that he had not obtained sufficient marks for his name to be included in the reserve list. Although the complainant had obtained the required minimum from each test and at least 60 % of the maximum marks of the tests, he was not amongst the 32 best candidates.

On 7 January 2001, the complainant wrote to the European Parliament asking what qualifications he was lacking, how many men were amongst the 32 best candidates and how many unemployed persons were included on the reserve list. On 24 January 2001, the Head of Unit of DG 5 replied the first question by giving the complainant's marks. As to the second question, the Head of Unit stated that male candidates were not discriminated against as the reserve list reflects the number of male participants in Open Competition EUR/C/153/98. Finally, as regards the third question the Head of Unit stated that he is not in a position to provide personal data of other participants and it would be contrary to the data protection rules.

On 15 February 2001, the complainant replied to the Head of Unit of DG 5 stating that he had not received all answers to the questions he put forward. He requested to know how many male candidates were amongst the 32 best candidates. Furthermore, he requested the names of the 32 candidates on the reserve list and their marks in Open Competition EUR/C/153/98.

On 22 February 2001, the Head of Unit replied by providing information on the number of male candidates whose names are on the reserve list (6,25 % of the candidates on the reserve list). The Head of Unit underlined that the Parliament has to guarantee that the personal data of each candidate is protected.

On 7 March 2001, the complainant made a complaint to the Ombudsman. According to the complainant, the Parliament has wrongly refused to give the names of the 32 best candidates and their marks in Open Competition EUR/C/153/98.

THE INQUIRY

The Parliament's opinion

The Parliament made, in summary, the following points:

The Parliament stated that according to the announcement of the competition the successful candidates would be informed personally of the results, and in order to ensure openness, the reserve list would be submitted to the successful candidates (OJ C 61 A/14 of 3 March 1999, part VIII.2). Further, the reserve list was made public in part by publishing it on the notice boards of the institution. Unsuccessful applicants could not however receive information concerning the candidates on the reserve list without violating the Constitutions of Member States and the rights of citizens of the latter under the Charter of Fundamental Rights of the European Union. Furthermore, the Parliament stated it was considering amending its practices as regards publishing information concerning the candidates on the reserve list.

The complainant's observations

The complainant did not send any observations.

THE DECISION

1 Failure to provide the names of the 32 candidates on the reserve list

1.1 The complainant unsuccessfully participated in Open Competition EUR/C/153 for Finnish language typists. He claims that the European Parliament has failed to provide him with the names of the 32 successful candidates on the reserve list in that competition.

1.2 The European Parliament replied that it could not provide the complainant with such information. The Parliament stated that according to the notice of competition the successful candidates would be informed personally of the results, and in order to ensure openness, the reserve list would be submitted to the successful candidates (OJ C 61 A/14 of 3 March 1999, part VIII.2). Further, the reserve list was made public in part by publishing it on the notice boards of the institution. Unsuccessful candidates could not however receive information concerning the candidates on the reserve list without violating the Constitutions of Member States and the rights of citizens of the latter under the Charter of Fundamental Rights of the European Union. Furthermore, the Parliament stated it was considering amending its practices as regards publishing information on the candidates on the reserve list.

1.3 By refusing the complainant access to the list of names of successful candidates, the Parliament appears to have acted within the notice of competition. However, the Ombudsman considers that the complainant has the possibility to make an application under Article 7 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to the European Parliament, Council and Commission Documents which came into force on 3 December 2001(2). In case the complainant is not satisfied with the outcome of his application he has the possibility to present a new complaint to the Ombudsman. In this context the Ombudsman observes that point VIII (2) of the Finnish translation of the notice of competition provides that the reserve list would be forwarded to "candidates" instead of "lauréats" or "successful candidates".

1.4 The Ombudsman is not aware, however, of any legal rule or principle that could prevent the European Parliament from announcing in notices of competition that the names of successful candidates will be made public. Furthermore, the adoption of such a practice would be in accordance with the general principle of openness to which the European Union is committed, as reflected in Article 1 of the Treaty on European Union, amongst other texts.

1.5 The Ombudsman recalls in this context that, in 1997, the European Commission agreed to publish names of successful candidates in future competitions. This undertaking was given as part of a friendly solution to complaint 16/17.1.95/GS/IT.

1.6 Furthermore, the Ombudsman recalls that the Parliament has in its resolution on the secrecy which forms part of the Commission's recruitment procedures(3) pointed out that the principle of openness must apply throughout the selection procedure.

1.7 In view of the above, the Ombudsman considers it to be inconsistent with the European Parliament's commitment to openness in the recruitment process for the European Parliament's administration to fail to announce, in notices of competition, that the names of successful candidates will be made public. In order to guarantee that the principle of openness will be applied in future competitions, the Ombudsman makes the following draft recommendation to the Parliament, in accordance with Article 3 (6) of the Statute of the European Ombudsman:

In future competitions, the European Parliament should inform candidates in the notices of competition that the names of successful candidates will be made public.

2 Failure to provide the marks of the 32 candidates on the reserve list

2.1 The complainant also claims that the European Parliament has failed to provide him with the marks of the 32 candidates on the reserve list in Open Competition EUR/C/153/98.

2.2 The Parliament replied that it could not provide the complainant with such information for the reasons mentioned above under part 1.2.

2.3 The European Ombudsman finds that question of publication of marks of successful candidates was examined, alongside other issues of openness, in the Ombudsman’s own-initiative inquiry concerning recruitment to the Community institutions and bodies(4). In connection to that inquiry the Ombudsman made a draft recommendation to the Commission, according to which ‘[i]n its future competitions, the Commission shall give applicants access to their own marked exam papers upon request.’ The Ombudsman is, however, not aware of any rule that would oblige the Parliament to make public the marks of other applicants.

2.4 The Ombudsman therefore concludes that there appears to be no maladministration regarding this aspect of the case.

The draft recommendation

In future competitions, the European Parliament should inform candidates in the notices of competition that the names of successful candidates will be made public.

The European Parliament and the complainant will be informed of this draft recommendation. In accordance with Article 3 (6) of the Statute of the Ombudsman, the Parliament shall send a detailed opinion before 31 July 2002. The detailed opinion could consist of the acceptance of the Ombudsman's draft recommendation and a description of how it has been implemented.

Strasbourg, 7 March 2002

 

Jacob Söderman

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(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, page 15.

(2) OJ L 145, 31.05.2001, p. 43-48.

(3) European Parliament resolution on the special report from the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedures (C5-0082/2000 - 2000/2048 (COS)), 17 December 2000. This resolution is based on the Bösch Report on the special report from the European Ombudsman to the European Parliament following the own-initiative inquiry into the secrecy which forms part of the Commission's recruitment procedures, 12 October 2000, FINAL A5-0280/2000.

(4) Draft recommendation to the European Commission in the own initiative inquiry 1004/97/PD, 8 March 1999.