Background to the complaint

1. EASA has a database containing more than 10,000 multiple-choice questions used by Member States^[1] to test the theoretical knowledge of persons seeking to become professional airplane and helicopter pilots (the so-called European Central Question Bank or ECQB^[2]).

2. In October 2019, the complainant asked EASA for full public access^[3] to the entire ECQB.

3. EASA refused access to the ECQB, relying on the need to protect commercial interests, including intellectual property rights, and the need to protect its decision-making in relation to the theoretical knowledge examinations of applicant’s for a pilot’s licence.^[4]

4. The complainant requested a review of this decision saying that EASA should give him full access to the database (he made a so-called ‘confirmatory application’).

5. On 26 November 2019, EASA replied to the complainant’s confirmatory application maintaining its previous view that access must be denied.

6. Dissatisfied with this decision, the complainant turned to the Ombudsman.

The inquiry

7. The Ombudsman opened an inquiry into the complainant’s position that EASA was wrong to deny him access to the ECQB.

Arguments presented

8. The complainant argued that disclosure of the test questions would not undermine EASA’s decision-making as the integrity of the theoretical knowledge examinations was maintained by the fact that the number of questions was vast. He also stated that the test questions contained in the ECQB were already available for sale on the internet.

9. EASA said that the ECQB was of great importance for the safety of civil aviation in Europe as it ensures that aircrews have the appropriate knowledge and the required competences. Accordingly, it said, the test questions contained in the ECQB are distributed to the national competent authorities organising examinations only to allow them to the prepare and conduct examinations. It added that the authorities are obliged to establish appropriate procedures to ensure the integrity of examinations.^[5] EASA took the view that disclosure of the test questions would undermine the integrity of theoretical knowledge examinations and thereby EASA’s decision-making. It added that confidentiality of the test questions would ensure equal treatment of all applicants that sit an exam. To support its view, EASA referred to recent case law by the EU court.^[6]

10. EASA also argued that disclosure of the ECQB would undermine its own and its predecessor’s (the Joint Aviation Authorities’) intellectual property rights. In this context, it clarified that the test questions contained in the ECQB are not for sale or otherwise disclosed to third parties. Test questions purchased online to prepare for a theoretical knowledge examination are different from those contained in the ECQB.

11. The complainant contended that the cited case-law did not apply as it concerned a recruitment procedure for EU civil servants. He also argued that only disclosure of the ECQB would ensure equality amongst applicants for a pilot’s licence, given that the questions are already for sale on the internet.

12. EASA stated that the cited case-law was applicable as it concerned databases with multiple-choice questions.

The Ombudsman's assessment

13. The Ombudsman notes that public authorities entrusted with the task of assessing the competence of pilots must be able to ensure that pilots are competent. Any weaknesses in the assessment of the competence of pilots poses serious risks to public safety. Accordingly, the integrity of the exams must be protected.

14. It is reasonable for EASA to maintain that the disclosure of the questions contained in the ECQB would affect the effectiveness, and thus undermine the integrity, of exams. This, in turn, would jeopardise a proper assessment of pilots.

15. The Ombudsman also considers that there is no overriding public interest in disclosure and the complainant has not put forward any convincing argument in this regard. On the contrary, given the role of pilots in ensuring the safety of passengers, the Ombudsman is convinced that the public interest in this case is best served by the non-disclosure of the ECQB. She also notes that the interest the complainant pursues appears to be a personal one (it appears that he wants access to the questions to prepare for the exam).

16. The Ombudsman therefore finds that EASA was correct to refuse to grant public access to the questions contained in the ECQB.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Union Agency for Aviation Safety in refusing access to the European Central Question Bank.

The complainant and EASA will be informed of this decision.

 

Fergal Ó Regan

Head of Inquiries - Unit 2

Strasbourg, 10/02/2020

 

[1] That is, all EU Member States, Iceland, Liechtenstein, Norway and Switzerland.

[2] For more information on the ECQB see: https://www.easa.europa.eu/easa-and-you/aircrew-and-medical/european-central-question-bank-ecqb.

[3] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[4] In accordance with Article 4(2) and (3) of Regulation 1049/2001.

[5] In accordance with ARA.FCL.300 d) of Annex VI to Commission Regulation 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02011R1178-20140403&from=EN.

[6] Judgment of the General Court (Appeal Chamber) of 12 November 2015, Christodoulos Alexandrou v European Commission, joined cases T-515/14 P and T-516/14 P, paragraphs 75, 81 and 82: http://curia.europa.eu/juris/celex.jsf?celex=62014TJ0515&lang1=en&type=TXT&ancre.