Dear Mr S.,

On 28 June 2001, you made a complaint concerning competition COM/A/98/10 and in particular preselection test b) thereof.

On 4 July 2001, I forwarded the complaint to the Commission for its comments. The Commission sent its opinion on your complaint on 17 October 2001.

On 23 October 2001, I wrote to the Commission in order to ask for further information in relation to your complaint. I informed you accordingly the same day and submitted a copy of the Commission's opinion to you. The Commission sent its reply to my request for further information on 7 December 2001.

On 12 December 2001, I forwarded the Commission's reply to you with an invitation to make observations, if you so wished. On 14 January 2002, you asked me for further information in relation to the Commission's reply. I answered by a letter dated 15 January 2002. On 23 January 2002, you sent me your observations on the Commission's opinion and the Commission's reply to my request for information.

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

THE COMPLAINT

The complainant took part in competition COM/A/98/10 ('Administration of aid for third countries') organised by the Commission. He obtained the necessary number of points (at least 50 % of the total points) in three of the four preselection tests. The Commission informed him, however, that he had failed at the remaining test (preselection test b) where he only obtained 9.77 points out of 30 (i.e., less than 30 %).

On 11 May 1999, the complainant asked the Commission to check the result of that test manually. Since the Commission did not immediately reply, the complainant turned to the Ombudsman (complaint 532/99/(PD)/GG) who thereupon contacted the Commission. On 21 June 1999, the Commission replied to the complainant's letter of 11 May 1999 and informed the complainant that the results that had been notified to him corresponded to the marks he had obtained at the examinations. Given that the complaint only concerned the failure to reply to the letter of 11 May 1999 and that the Commission had replied thereto, the Ombudsman subsequently informed the complainant that he considered his complaint to have been settled by the Commission.

In June 2001, the complainant turned to the Ombudsman again. According to the complainant, the facts underlying his present complaint are as follows:

In the absence of a reply to his letter of 11 May 1999, the complainant telephoned, on 21 June 1999, a Mr Van Biesen at the Commission who agreed to look into the matter. The following day Mr Van Biesen informed the complainant that he had no news yet but that the complainant (who was then working in Macedonia) would be contacted by telephone. Shortly afterwards the complainant was called by a lady who said that she worked for Directorate-General (DG) IX and who told the complainant that he would be allowed to take part in the next stage of the competition.

After having received the Commission's letter of 21 June 1999 informing him that he would not be allowed to take part in the next stage of the competition, the complainant telephoned DG IX again on 29 June and 5 July 1999. On the second occasion, he was told that nobody had called him on behalf of Mr Van Biesen. The complainant was further informed that his test had been checked again and that this re-examination had confirmed that he could not take part in the written part of the examination.

On 6 July 1999, the complainant wrote to the Commission in order to ask for a copy of the relevant preselection test filled in by him and of the corresponding key of answers. In its reply of 9 July 1999, the Commission took the view that no further information could be provided on the grounds of confidentiality.

In his complaint to the Ombudsman, the complainant reiterated his view that his preselection test b) had been assessed incorrectly. The complainant considered that the dispute could only be clarified by the disclosure of this test and of the correct answers. He noted that he was not so much interested in the competition as such but in the principle of transparency in the work of the Commission and in the fairness of selection procedures. In his view, the confidentiality of the proceedings of the selection board should not stand in the way of the disclosure requested. In this context, the complainant referred to a notice for a competition published in 2001 in which the Commission had noted that participants would be sent, upon request, a copy of their test and of the correct answers. The complainant thus demanded that he should either be sent a copy of his test and of the correct answers or that alternatively the Ombudsman should carry out an independent check of the relevant test.

THE INQUIRY

The complaint was sent to the Commission for its opinion. The Ombudsman asked the Commission to provide a copy of the complainant's test and of the list of correct answers with its opinion.

The Commission's opinion

In its opinion, the Commission made the following comments:

The notice for a competition published in 2001 to which the complainant had referred contained provisions regarding the disclosure of tests that differed from those included in previous notices. These provisions represented a new approach based on a political commitment made in December 1999 by President Prodi to the Ombudsman with regard to competitions published as from 1 July 2000. The complainant could therefore not rely on these rules, given that the competition he had taken part in had been published in 1998.

The Commission submitted a copy of preselection test b) filled in by the complainant and of the table of correct answers, stressing that these documents were for the confidential information of the Ombudsman. It further noted that questions 25, 26 and 35 of this test had been annulled by the selection boards in selections COM/A/8/9/10/11 and 12 since the selection boards had considered these questions to be ambiguous. The annulment of these questions had been the subject-matter of a judgement of the Court of First Instance(1). The Court had held that annulling these questions had not been unlawful.

Further inquiries
Request for further information

Having examined the Commission's opinion, the Ombudsman considered that he needed further information to deal with the complaint. On the basis of the documents submitted by the Commission, it appeared that the complainant had answered 18 of the 37 questions (disregarding the three that had been eliminated) correctly. On the assumption that each answer was worth 30/37 points, it was not clear how the Commission had arrived at the result of 9.77 points. The Ombudsman therefore asked the Commission to check the figures again in order to ascertain the correct result.

The Commission's reply

In its reply, the Commission explained that the complainant had answered correctly only 17 questions whilst 15 had been answered incorrectly. The difference to the Ombudsman's count was due to the fact that the optical reader had detected a multiple reply to question 22, resulting from the fact that the cross placed in order to answer question 23 had extended into one of the boxes for the preceding question. This was contrary to the instructions that had been given to candidates, according to which crosses had to be put in the relevant boxes and should not extend to other boxes. The Commission also explained that each wrong answer had resulted in a deduction of 0.33 points. On the basis of these data, the Commission had calculated 9.77 points (17 times 30/37 points minus 15 times 1/3 of 30/37).

A copy of the sheet setting out the calculations for all four preselection tests and a copy of the instructions that had been given to candidates were submitted by the Commission.

The complainant's request for information

Upon having received the Commission's reply, the complainant sent the Ombudsman a list with the answers that he believed he had given at the test. The complainant considered that he had given 21 correct and 11 wrong answers. He therefore asked the Ombudsman to verify whether his list corresponded to the answers that he had effectively given at the test and to inform him about any discrepancies between his list and the copy of his test provided by the Commission and, if so, what the correct answers would have been. In his reply, the Ombudsman pointed out that he had invited the complainant to present observations on the Commission's opinion and its reply to the request for information until 31 January 2002. The Ombudsman noted that it emerged from the said documents and the explanations given by the Commission that the calculation of the complainant's points by the Commission appeared to be correct.

The complainant's observations

In his observations, the complainant stressed that he was relying on the principle of transparency and on the need for fairness in competitions, not on the provisions that the Commission had established regarding a competition published in 2001. The complainant maintained his view that he had given 21 correct and 11 wrong answers. He added, however, that he was convinced that the Ombudsman had correctly reviewed the result of the test. In his view, the most likely explanation for the discrepancy was that there had been more ambiguous questions than the three that had been annulled. The complainant noted, however, that all the possibilities at his disposal of clarifying this discrepancy had been exhausted. He expressed the hope that in the future it would be easier for candidates to obtain exhaustive clarifications on the results of competitions. The complainant concluded by thanking the Ombudsman for his help.

THE DECISION

1 Lack of transparency and unfairness in competition

1.1 The complainant took part in competition COM/A/98/10 organised by the Commission. He was then informed that he had failed to obtain the necessary number of points at one of the four preselection tests (preselection test b). According to the Commission, the complainant had only achieved 9.77 points out of 30 instead of the 50 % required. The complainant considers that his test was assessed incorrectly and that he is concerned about the principle of transparency in the work of the Commission and the fairness of selection procedures. The complainant thus demands that he should either be sent a copy of his test and of the correct answers or that alternatively the Ombudsman should carry out an independent check of the relevant test.

1.2 The Commission takes the view that it correctly calculated the number of points achieved by the complainant. It submitted a copy of the preselection test b) filled in by the complainant and of the table of correct answers for the confidential information of the Ombudsman.

1.3 The Ombudsman recalls that he considered the question of candidates' access to their examination papers in the context of his own-initiative inquiry into the Commission's recruitment procedures (1004/97/(PD)/GG) where a Special Report was submitted to the European Parliament in October 1999. On 7 December 1999, the President of the European Commission, informed the Ombudsman that arrangements would be made to give candidates access to their own marked examination papers, upon request, in future competitions from 1 July 2000 onwards. The Ombudsman welcomed this commitment and closed his inquiry after the European Parliament had also endorsed his recommendation that such access should be given(2). It should be noted that the present complaint concerns a competition published in 1998, i.e. before the above-mentioned date. The Ombudsman therefore considers that there is no need for him further to inquire into the complainant's claim that the Commission should give him access to his examination paper.

1.4 In its opinion and in its reply to the Ombudsman's request for information, the Commission has provided more detailed information on the way it assessed the complainant's test. According to the Commission, three of the forty questions had been eliminated by the selection board since they had proved to be ambiguous. Of the remaining questions, the complainant had answered 17 correctly and 15 incorrectly.

1.5 The Ombudsman has carefully examined the evidence submitted to him, in accordance with the complainant's request that he should carry out an independent check. He concludes that it emerges from the evidence submitted to him that the calculation of the complainant's points by the Commission appears to be correct.

1.6 In these circumstances, there appears to be no maladministration on the part of the Commission.

2 Conclusion

On the basis of the European Ombudsman's inquiries into this complaint, it appears that there is no maladministration on the part of the European Commission. The Ombudsman therefore closes the case.

The President of the European Commission will also be informed of this decision.

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Case T-189/99 Gerochristos v. Commission [2001] SCR-I-A-11, II-53.

(2) Annual Report 2000 of the European Ombudsman, page 206.