Strasbourg, 12 February 2008

Dear Mr P.,

On 20 August 2007, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO"), concerning your exclusion from Open Competition EPSO/AD/47/06.

On 18 September 2007, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 22 October 2007, which was drafted in French. On 12 November 2007, EPSO sent me the translation of its opinion into English. On 15 November 2007, I forwarded it to you with an invitation to make observations.

On 7 December 2007, you explained to me that you had not been informed about the developments in your case. On 11 December 2007, I sent you again copies of my letters dated 18 September and 15 November 2007 and I invited you to submit your observations on EPSO's opinion, which you sent on 3 January 2008.

I am writing now to let you know the results of the inquiries that have been made.

THE COMPLAINT

According to the complainant, the relevant facts are, in summary, as follows:

The complainant applied for Open Competition EPSO/AD/47/06, which was organised in order to constitute a reserve pool of administrators (AD5) with Romanian citizenship. After the admission tests, the candidates sat the written tests, that is, tests (a), (b) and (c). According to the English version of the Notice of Competition, published on 21 June 2006, "[o]nce the written tests (b) and (c) have been marked, the candidates (...) with the highest marks for all the written tests combined (and the pass-mark in each) will be admitted to the oral test (d)".

The complainant successfully passed the admission tests and, on 16 March 2007, he sat all the written tests.

On 18 April 2007, EPSO issued a corrigendum to the Notice of Competition according to which, inter alia, "[o]nce the written tests (b) and (c) have been marked, the candidates (...) with the highest marks for both written tests combined (and the pass-mark in each) will be admitted to the oral test (d)".

On 24 May 2007, EPSO informed the complainant that, although his marks in the written tests were above or equal to the pass-mark, he was not amongst the best candidates as set out in the Notice of Competition. The Selection Board added that "only those candidates, in each field, who obtained the highest combined marks in written tests b) and c) and the pass-mark in each of these tests, would be admitted to the oral test d)". The complainant obtained a high mark for written test (a), which had a pass-mark of 20, as he scored 33.6/40 points. He also obtained 21/40 points for written test (b), which also had a pass-mark of 20. Additionally, in written test (c), the complainant scored the required pass-mark, namely 8/10 points. The complainant obtained a total of 29/50 points in written tests (b) and (c). However, "the candidates who were admitted for the oral test (d) obtained at least 30 points". Therefore, he did not qualify to be invited to attend oral test (d).

On 7 and 8 June 2007, the complainant sent EPSO a letter in which he (i) asked for a review of his written tests (b) and (c) and (ii) submitted a complaint that the corrigendum to the Notice of Competition was published after he had taken written tests (a), (b) and (c). He emphasised that, while the original Notice of Competition stated that all three tests (a), (b) and (c) would be taken into account in order to calculate the final results, the further corrigendum stated that only two tests, namely, tests (b) and (c), should in fact be taken into account. Therefore, he took the view that he was misled while preparing his "strategy" on how to deal with the tests.

On 27 June 2007, the Selection Board rejected his request for review and reconfirmed his results in tests (b) and (c). In its reply, however, the Board did not refer to the complainant's query concerning the corrigendum of the Notice of Competition. At that point, the complainant submitted his first complaint to the European Ombudsman (reference1896/2007/RT). He alleged that EPSO had failed properly to answer his request concerning the procedures of the competition.

Following the Ombudsman's intervention, on 9 August 2007, EPSO completed its original reply to the complainant. In its new reply, EPSO stated that

"an error did occur in the Official Journal concerning the competition EPSO/AD/47/06, but it concerned only the English version. This error was rectified by the publication of a corrigendum to the English version of the Official Journal more than a month before the publication of the results of the written tests. In order to respect the equality of treatment of all candidates, EPSO was not in the position to review the complainant's marks taking into account his result in written test a)".

The Ombudsman decided to close the case as settled by the institution, but pointed out that this decision did not involve an evaluation of the substance of the answer that EPSO had sent to the complainant.

The complainant was not satisfied with EPSO's answer, and, on 20 August 2007, he lodged the present complaint with the Ombudsman, which was registered under the reference 2256/2007/RT.

The complainant alleged that EPSO failed to provide accurate information in Notice of Competition EPSO/AD/47/06.

The complainant claimed that EPSO should admit him to oral test (d).

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows:

As to the facts:

The complainant applied for Open Competition EPSO/AD/47/06 which was organised in order to constitute a reserve list of administrators with Romanian citizenship. He chose the field of European public administration.

The Notice of Competition was published on 21 June 2006 in the Official Journal. On 30 June 2006, a corrigendum was published correcting parts of Section A and Section D.1 of the Notice of Competition and, on 18 April 2007, a second corrigendum was published correcting Section C.2 of the Notice.

The complainant successfully passed the admission tests and he was admitted to the written tests, which were held on 16 March 2007.

After written tests (a), (b), (c) had been marked, EPSO informed the complainant of his marks in the above written tests and of the fact that he was not among the candidates who had obtained the highest marks as set out in the corrigendum to Section C.2 of the Notice of Competition. Therefore, the Selection Board was unable to admit him to the oral test.

On 7 June 2007, the complainant wrote to EPSO and pointed out that the corrigendum to Section C.2 of the Notice of Competition was published after he sat the written tests and that modification had placed him at a disadvantage. He also asked for the review of his tests.

On 27 June 2007, EPSO upheld its decision and confirmed the complainant's marks. On 28 June 2007, the complainant again approached EPSO asking for (i) clarification with respect to its failure to comply with the procedural rules and (ii) copies of his written tests. On 6 August 2007, EPSO sent him copies of his written tests. On 9 August 2007, EPSO provided an explanation with respect to the corrigendum published on 18 April 2007.

As to the merits:

In its opinion, EPSO first pointed out that the Notice of Competition, which was drafted in French, was submitted to the Joint Committee(1) for an opinion before being adopted by the Appointing Authority(2). On 21 June 206, the Notice was published in English, French and German.

In the French and German versions, Section C.2, referred to by the complainant, provided that " once the written tests (b) and (c) have been marked, the candidates (...) with the highest marks for both written tests combined (and the pass-mark in each) will be admitted to oral test (d)" (emphasis added). However, the English version was worded as follows: "once the written tests (b) and (c) have been marked, the candidates (...) with the highest marks for all the written tests combined (and the pass-mark in each) will be admitted to oral test (d)" (emphasis added).

When preparing to correct the tests and set the marks, the Selection Board noticed that the Notice of Competition, as translated into English, differed from the French and German versions. In order to ensure that all candidates sitting the same competition were treated equally, the Board had to adopt the same rules for all candidates when marking the tests and setting the marks. Therefore, it decided to publish a corrigendum to the English version as soon as possible. The corrigendum was published on 18 April 2007, that is, before the candidates were informed of their marks.

EPSO emphasised that the error found in one language version of the Notice of Competition did not affect the conditions in which the candidates had sat the written tests.

As regards the complainant's argument that, had he known from the outset that written test (a) was not to be taken into consideration for the final mark, he would have adopted a different approach when preparing for the tests, EPSO considered that this argument referred to the individual approach of a candidate. In EPSO's view, "the method adopted and time spent when preparing to sit a competition is the responsibility of each candidate". EPSO stressed that passing written test (a) was a precondition to being admitted to the next stage of the competition and that the importance of the test could not be ignored. Moreover, EPSO pointed out that the marks obtained in the written tests could not be compared as the tests were different in scope.

The complainant's observations

The complainant's observations can be summarised as follows:

The complainant stated that EPSO admitted that the English version of the Notice of Competition provided inaccurate information to the candidates. He added that, according to EPSO's website, "the Notice of competition published in the Official Journal of the European Union is the authoritative source of information on any EPSO competition". Moreover, the complainant emphasised that the Notice of Competition represented the authoritative source of information for both the Selection Board and the candidates.

In the complainant's view, the "conditions of the tests" concerned the overall framework set by the Notice of Competition, that is, not only the participation in the tests but also the preparation for them. The complainant pointed out that, even if the "conditions of the tests" were taken to refer only to the sitting of the tests and not also to the preparation process, providing different information to certain groups of candidates would have influenced their approach to the tests.

Finally, the complainant pointed out that the corrigendum was published after the written tests had been held and that it only allowed for the candidates' tests to be marked according to the same criteria. However, the complainant took the view that the publication of the corrigendum "failed to correct the fact that the candidates were provided with different conditions for [the] competition".

THE DECISION

1 Alleged failure to provide accurate information in the Notice of Competition

1.1 On 21 June 2006, the Notice concerning Open Competition EPSO/AD/47/06 to constitute a reserve list of administrators with Romanian citizenship was published in the Official Journal. The English version of the Notice of Competition provided that "once the written tests (b) and (c) have been marked, the candidates (...) with the highest marks for all the written tests combined (and the pass-mark in each) will be admitted to oral test (d)". On 16 March 2007, the complainant sat written tests (a), (b) and (c). On 18 April 2007, the corrigendum to the above English version of the Notice of Competition was published and read as follows "once the written tests (b) and (c) have been marked, the candidates (...) with the highest marks for both written tests combined (and the pass-mark in each) will be admitted to oral test (d)". The complainant obtained pass-marks in all written tests (a), (b) and (c) but he was not admitted to the subsequent oral test (d) of the competition on the ground that he was not amongst the best candidates who, in accordance with the corrigendum, had obtained the highest combined marks in written tests (b) and (c).

The complainant alleged that EPSO failed to provide accurate information in Notice of Competition EPSO/AD/47/06.

The complainant claimed that EPSO should admit him to oral test (d).

In support of his complaint, the complainant argued that the publication of the corrigendum after the written tests had taken place had had an impact on his situation because he had prepared for the tests and adopted a strategy concerning how to deal with them on the basis of the original Notice of Competition, which had contained an error.

1.2 In its opinion, EPSO acknowledged that an error had occurred in the English version of the Notice of Competition. However, EPSO took the view that this error had been corrected by the publication of a corrigendum before the results of the written tests had been published. In EPSO's view, this error did not affect the conditions in which the candidates had sat the written tests. As regards the complainant's argument advanced in support of his complaint, EPSO pointed out that it concerned the individual approach to the tests by the candidates and that the candidates alone are responsible for the approach to the tests that they choose to adopt.

1.3 The Ombudsman first notes that, on 21 June 2006, the Notice of Competition was published in English, French and German. The Ombudsman also notes that the wording of the relevant provisions of the English version of the Notice was as follows:

"Once the written tests (b) and (c) have been marked, the candidates (...) with the highest marks for all the written tests combined (and the pass-mark in each) will be admitted to oral test (d)" (emphasis added).

The Ombudsman remarks that the English version of the Notice of Competition differed from the French and German version. In those versions, it stated that:

"Once the written tests (b) and (c) have been marked, the candidates (...) with the highest marks for both written tests combined (and the pass-mark in each) will be admitted to oral test (d)" (emphasis added).

1.4 As regards the complainant's allegation, the Ombudsman notes that EPSO acknowledged the error made in the initial English version of the Notice of Competition and published the corresponding corrigendum. Given that the error was corrected, the Ombudsman does not find any instance of maladministration as regards the complainant's allegation.

1.5 However, the Ombudsman recalls that EPSO is responsible for the proper organisation of the competitions(3), including the adoption of the wording of the Notices of Competition to be published in the Official Journal in the relevant linguistic versions. The Ombudsman emphasises the importance of providing candidates in EPSO's competitions with accurate information in all the linguistic versions of the Notice of Competition. Considering that EPSO's current practice regarding its competitions is to publish the Notice of Competition only in three linguistic versions, the Ombudsman trusts that EPSO will in the future, be able to ensure the accuracy of all linguistic versions of the Notices of Competition. A further remark to this effect will be made below.

1.6 As regards the complainant's claim to be admitted to oral test (d), the Ombudsman understands it to refer to the complainant's argument that, had he known from the outset that written test (a) was not to be taken into account for the final mark, he would have adopted a different "strategy" when preparing the written tests and therefore his results could have been better.

The Ombudsman agrees with EPSO that the method and the time spent when preparing to sit the tests of a competition refer to the personal approach of candidates and represent their sole responsibility but, on the other hand, he considers that it may not be excluded that such an approach is based, at least partially, on the information provided by the Notice of Competition.

In the present case however, although the error made in the English version of the Notice of Competition could have therefore influenced the complainant's personal approach to the written tests, the complainant did not submit evidence to prove that, had he adopted a different approach to the tests, his results in written tests (b) and (c) would have been better and he could have been admitted to oral test (d) as a result. Moreover, the Ombudsman points out that it appears that the nature of the error contained in the English version of the Notice of Competition did not affect the conditions in which the candidates sat the written tests. Similarly, the subsequent correction of the error in question made it possible for the Selection Board to treat all candidates equally when marking the tests and setting the marks.

In view of the above, the Ombudsman does not consider that the complainant's claim can be sustained.

2 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO, as regards the complainant's allegation and related claim.

The Ombudsman therefore closes the case.

The Director of EPSO will also be informed of this decision.

FURTHER REMARK

The Ombudsman recalls that EPSO is responsible for the proper organisation of the competitions, including the adoption of the wording of the Notices of Competition to be published in the Official Journal in the relevant linguistic versions. The Ombudsman emphasises the importance of providing candidates in EPSO's competitions with accurate information in all the linguistic versions of the Notice of Competition. Considering that EPSO's current practice regarding its competitions is to publish the Notice of Competition only in three linguistic versions, the Ombudsman trusts that EPSO will in the future be able to ensure the accuracy of all linguistic versions of the Notices of Competition.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) See Section 2 of the Annex II of the Staff Regulations.

(2) In accordance with Article 1 of the Annex III of the Staff Regulations.

(3) Case T-159/98 Torre and others v Commission [2001] ECR-SC I-A-83 and II-395, paragraph 46.