Strasbourg, 3 December 2007

Dear Mr K.,

On 3 December 2006, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO"). Your complaint concerns Open Competition EPSO/AD/37/05 - Linguistic administrators (AD5) - main language German(1).

On 24 January 2007, I forwarded your complaint to the Director of EPSO. On 25 April 2007, I received EPSO's opinion in French, and on 23 May 2007, its translation into English, which I forwarded to you with an invitation to make observations, if you wished. No observations have been received from you.

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

THE COMPLAINT

According to the complainant, the facts are, in summary, as follows.

On 29 September 2006, the complainant participated in the pre-selection tests of Open Competition EPSO/AD/37/05. Question 25 of test (a) stated that "[t]he major part of Community expenditure is accounted for by: a) the common agricultural policy; b) structural actions; c) pre-accession aid; d) interpretation and translation services". The complainant chose option (b) in order to answer that question.

On 29 October 2006, the complainant was informed that he had successfully passed the first phase of the selection procedure.

On 9 November 2006, after making a formal request, the complainant received the answers to pre-selection tests (a) and (b) from the European Personnel Selection Office ("EPSO"). According to EPSO, the correct answer to question 25 of test (a) was option (a).

On 10 November 2006, the complainant filed a complaint concerning question 25 of test (a) with EPSO. The complainant pointed out that the question did not indicate to which year it was referring. He had, therefore, in his opinion, legitimately assumed that the year in question was the (then) current year 2006, "where agriculture accounted for 36% of the Community budget and Competitiveness and Cohesion for 39%". The complainant provided a link to a leaflet on the EU Budget 2006, available on the European Commission's website, which was an official document and, in his view, justified his selection of option (b)(2).

On 1 December 2006, the Selection Board replied, in summary, that the official "General budget of the European Union for the financial year 2006", available on the Commission's website, stated that "agriculture and rural development commitments amount to EUR 51 051 million, (...) structural operations, commitments increase by 5% on 2005 to EUR 44 555 million."(3) The graphics and table on pages 6 and 7 of that document concerning the financial perspectives at 2006 prices, including figures for the previous years, clearly showed that agricultural expenditure had always been higher than structural operations. The Board concluded by stating that the figures contained in the graphic, and in the table, under the link the complainant had mentioned, were, unfortunately, "not coherent and in line with the official financial perspectives".

On 3 December 2006, the complainant lodged a complaint with the European Ombudsman.

The complainant alleges that EPSO has wrongly considered his answer (b), to question 25 of test (a), to be incorrect. In support of his allegation, the complainant argues that (i) the question did not refer to any particular year, nor did it specify whether rural development was included; and (ii) his answer was based on an official document, available on the Commission's website.

The complainant claims that question 25 of test (a) should be deleted.

THE INQUIRY

EPSO's opinion

EPSO's opinion can be summarised as follows(4).

EPSO first stated that a careful reading of the information under the heading "EU budget 2006" contained on the Commission's website showed that the answer to question 25 could not be obtained from the pie chart on which the complainant based his answer, as the item "structural actions" was not shown as a separate category within the figure of 39%(5). On the contrary, it is clear from both parts of the document used by the candidate that, according to the figures given in the table next to the pie chart, expenditure on agriculture was by far the highest, even excluding rural development. On the basis of the information referred to by the candidate himself, the correct answer was therefore option (a).

EPSO further emphasised that there was no error in, or contradiction between, the information referred to above and that invoked by the Selection Board in order to justify its decision. The Board used the information given on the same Commission website as that referred to by the complainant, but under another heading ("General budget of the European Union for the Financial Year 2006 - the Figures")(6).

EPSO further argued that candidates did not need to know the reference year or whether or not rural development was included in order to choose the correct answer.

EPSO, finally, stated that it is established case-law that the Selection Board for a competition has a broad margin of discretion as regards the details of the tests to be held in a competition. It is not for the Community Courts to declare the content of the tests unlawful unless the Board exceeds the limits set out in the notice of competition or act in a way that conflicts with the purpose of the tests. Furthermore, according to the case-law, a question may not be considered unlawful, potentially in light of the answers given, unless it is clearly incompatible with the purpose of the competition concerned. This would be the case if the Board's explanations were to show that the available choice of answers did not allow candidates to determine which was the only correct one, contrary to the specific instructions given to them. The degree of difficulty of a question as perceived by the candidate is not an indication of whether the question is appropriate or not. The Board is entitled to choose questions of varying degrees of difficulty in order to ensure that the competition achieves its primary aim, namely, that of ensuring that the most qualified officials are recruited(7).

The complainant's observations

No observations were received from the complainant.

THE DECISION

1 Preliminary remark

1.1 The European Ombudsman notes that some aspects raised in the present complaint concern documents available on the European Commission's website. The Ombudsman recalls that the present complaint is directed against the European Personnel Selection Office ("EPSO") and therefore points out that, should the complainant wish to complain about the information made available by the Commission on its website, he may present a new complaint to the Ombudsman, after having made prior administrative approaches to the Commission.

2 EPSO's assessment of the complainant's answer

2.1 On 26 September 2006, the complainant sat the pre-selection tests of Open Competition EPSO/AD/37/05 organised to constitute a reserve list of German-language linguistic administrators (AD5) in the field of translation. After being informed of the results of his tests, the complainant filed a complaint with EPSO concerning question 25 of test (a). This question stated that the "[t]he major part of Community expenditure is accounted for by: a) the common agricultural policy; b) structural actions; c) pre-accession aid; d) interpretation and translation services". The complainant chose option (b) in order to answer that question. EPSO however, considered that the correct answer was option (a).

The complainant alleges that EPSO has wrongly considered his answer (b), to question 25 of test (a), to be incorrect. In support of his allegation, the complainant argues that (i) the question did not refer to any particular year, nor did it specify whether rural development was included; and (ii) his answer was based on an official document, available on the Commission's website.

The complainant claims that question 25 of test (a) should be deleted.

2.2 In its opinion, EPSO stated, in summary, that (i) it was clear from the document referred to by the complainant that agriculture was by far the highest expenditure, even excluding rural development; and (ii) candidates did not need to know the reference year or whether or not rural development was included in order to choose the correct answer.

2.3 The Ombudsman notes the complainant's statement that he had assumed that the question referred to the (then) current year 2006.

2.4 The Ombudsman examined the "European Parliament - Final Adoption of the general budget of the European Union for the financial year 2006 (2006/179/EC, Euratom)"(8) and notes that, according to the table available on its page 10(9), expenditure (in euros) with respect to:

"1. Agriculture" corresponds to "50 991 020 000";

"2. Structural operations" correspond to "35 639 599 237";

"3. Internal policies" correspond to "8 889 218 143";

"4. External action" corresponds to "5 369 049 920";

"5. Administration" corresponds to "6 656 369 817";

"6. Reserves" correspond to "458 000 000";

"7. Pre-accession strategy" corresponds to "2 892 850 000"; and

"8. Compensation" corresponds to "1 073 500 332"(10).

The Ombudsman thus notes that the figure corresponding to expenditure with "Agriculture" is indisputably higher than any other expenditure figure of the 2006 Budget.

2.5 The Ombudsman notes the wording of question 25 of test (a) and of the different options to answer that question and takes the view that, in light of the above-mentioned figures, (i) the complainant's position that EPSO has wrongly considered his answer (b) ("structural actions") to be incorrect, cannot be sustained; and (ii) EPSO's position that the correct answer was (a) ("the common agricultural policy") appears to be reasonable.

2.6 The Ombudsman further notes the broad margin of discretion that a Selection Board enjoys as regards tests of a competition(11).

2.7 In view of the foregoing, the Ombudsman therefore considers that no evidence of maladministration has been found as regards the complainant's allegation. Therefore the complainant's claim cannot be sustained.

3 Conclusion

For the reasons stated in point 2.7 above, the Ombudsman considers that no instance of maladministration has been found as regards the complainant's allegation. Therefore the complainant's claim cannot be sustained.

The Ombudsman therefore closes the case.

The Director of EPSO will be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ 2005 C 290A.

(2) Available on http://www.ec.europa.eu/budget/library/publications/budget_in_fig/dep_eu_budg_2006_en.pdf.

(3) Available on http://www.ec.europa.eu/budget/library/publications/budget_in_fig/syntchif_2006_en.pdf.

(4) The Ombudsman notes that, in its opinion, EPSO referred in some detail to the different phases of the complainant's application. The Ombudsman will, however, summarise only those statements made by EPSO in its opinion which are relevant to the present inquiry.

(5) Available on http://ec.europa.eu/budget/publications/budget_in_fig_en.htm.

(6) Available on http://ec.europa.eu/budget/publications/budget_in_fig_en.htm.

(7) Joined Cases T-285/02 and T-395/02 Vega Rodriguez v Commission [2004] ECR II-1527, paragraphs 35-36 (not available in English).

(8) OJ 2006 L 78, p 1.

(9) Under the title "[f]inancing of the general budget - Appropriations to be covered during the financial year 2006 pursuant to Article 1 of Council Decision 2000/59/EC, Euratom of 29 September 2000 on the system of the European Communities' own resources - Expenditure".

(10) The Ombudsman notes the further amending budgets 1 to 6/2006 and points out that the figures in this column do not reflect the amendments included in those subsequent amending budgets.

(11) See Joined Cases T-285/02 and T-395/02 Vega Rodriguez v Commission [2004] ECR II-1527, paragraphs 35-36, whereby (in the original French): "[s]elon une jurisprudence constante, le jury d'un concours dispose d'un large pouvoir d'appréciation quant au contenu détaillé des épreuves prévues dans le cadre d'un concours. (...) Dans le cadre d'épreuves constituées par des questions à choix multiples (QCM), il n'appartient pas au Tribunal de substituer sa propre correction à celle du jury de concours. Il ne conviendrait de censurer une question, éventuellement au vu des réponses proposées pour celle-ci, que s'il apparaissait que cette question était manifestement inappropriée au regard de la finalité du concours en cause. Tel serait notamment le cas s'il résultait des explications du jury du concours que les différentes réponses proposées pour une question ne permettaient pas de déterminer la seule réponse correcte, contrairement aux instructions particulières en ce sens données aux candidats (...). À cet égard, la grande difficulté d'une question ne peut pas constituer un indice du caractère inapproprié d'une question. En effet, le jury du concours est habilité à choisir des questions s'inscrivant dans une large échelle de difficultés afin d'assurer la finalité première d'un concours, à savoir assurer le recrutement des fonctionnaires possédant les plus hautes qualités de compétence."