The background to the complaint

1. The complainant registered for Open Competition EPSO/AD/207/11. The competition was organised by the European Personnel Selection Office ('EPSO') with a view to establishing a reserve list from which to recruit administrators.

2. On 23 May 2011, the complainant sat the pre-selection tests for the above competition at a test centre in Barcelona.

3. The following day, he wrote to EPSO and complained about the conditions at the test centre. The complainant pointed out that while the tests were conducted, construction works (namely, "drilling and hammering with unacceptable noise levels") were being carried out behind the wall adjacent to the exam room. He also mentioned that during the tests he approached a member of EPSO's contractor responsible for the test centre and complained about the exam conditions. However, this was to no avail.

4. After several reminders, EPSO replied to the complainant's complaint in September 2011. It apologised for the time taken to reply to his correspondence. It also expressed its regrets as regards the conditions at the test centre. However, it pointed out that it had taken measures in order to ensure fair testing conditions at all the test centres. As regards the complainant's case, it stated that "earplugs were available on request in the test centre in order to ensure that candidates are not disturbed by potential noise".

5. In October 2011, the complainant lodged an Article 90(2) appeal under the Staff Regulations[1] against EPSO contesting the conditions in the test centre. He asked to re-take the pre-selection tests under normal conditions on the grounds that he was subjected to unequal treatment and to be informed about the measures taken by EPSO to prevent tests being conducted in Barcelona under the conditions he was subject to.

6. In its reply to the complainant's Article 90(2) appeal under the Staff Regulations, EPSO rejected the complainant's request to re-take the tests and maintained its initial position.

7. The complainant was not satisfied with EPSO's position and, on 2 April 2012, he turned to the European Ombudsman.

The subject matter of the inquiry

8. In his complaint to the Ombudsman, the complainant submitted the following allegation and claims:

Allegation:

EPSO failed to respond adequately and in a timely manner to the complainant's concerns relating to the conditions in the test centre.

Claims:

1. EPSO should allow him to re-sit the tests.

2. EPSO should: (i) check whether all the designated test centres offer the same conditions for candidates in order to guarantee the principle of equal treatment of candidates; and (ii) have contingency plans in place where and when needed in order to ensure that the tests are carried out smoothly.

9. The Ombudsman opened an inquiry and asked EPSO to submit an opinion on the complaint in which EPSO should also address the Ombudsman's specific questions[2].

The inquiry

10. On 24 April 2012, the Ombudsman opened an inquiry.

11. On 3 August 2012, EPSO sent an opinion, which did not address all the points raised by the Ombudsman. EPSO completed its opinion on 3 October 2012 following the Ombudsman's reminder. This opinion was forwarded to the complainant with an invitation to submit observations on it by the end of the following month. The complainant did so on 19 November 2012.

12. After a thorough examination of the reply provided by EPSO and of the complainant's observations on that reply, the Ombudsman decided to continue her inquiry and asked EPSO for further information regarding certain aspects of the case.

13. EPSO replied to the Ombudsman's further inquiries on 6 May 2013. EPSO's reply was sent to the complainant with an invitation to submit observations. The complainant sent its observations on 28 June 2013.

The Ombudsman's analysis and conclusions

A. Alleged failure to address properly and in a timely manner the complainant's concerns relating to the conditions at the test centre and related claims

Arguments presented to the Ombudsman

14. In support of his allegation, the complainant argued that: (i) he had provided sufficient information to EPSO in writing about the manner in which the conditions at the test centre affected his performance in the pre-selection tests; (ii) EPSO should ensure that adequate standards are maintained at all its test centres in order to guarantee the equal treatment of candidates; and (iii) EPSO failed to ensure that candidates would sit their tests in appropriate conditions because, in case of significant disturbance caused by, for instance, works, power cuts and IT failures at a given test centre, it has no contingency plan which would have allowed the tests to be carried out in alternative facilities.

15. In its opinion, EPSO noted that, in its e-mail of September 2011, it had apologised for the time taken to reply to the complainant's e-mails and had addressed the complainant's concerns expressed in his Article 90(2) complaint under the Staff Regulations, although his complaint was held inadmissible.

16. EPSO explained that the complainant booked his pre-selection tests for 23 May 2011, at 13.00, in Barcelona, Spain. Between 11.00 and 14.30 (which included the period of time the complainant sat his tests), a total of 23 candidates sat their tests. In order to ensure that candidates were not disturbed by potential noise, there were earplugs available on request and for all candidates at the test centre in Barcelona just as at all other test centres. The complainant "was the only one who complained and, nevertheless, he was able to complete the test."

17. After receiving the complainant's e-mails of 24 May 2011, EPSO contacted its contractor who confirmed that "some" works were being carried out in the building next door to the test centre, between approximately 12.00 and 13.30 on the day in question. It also confirmed that the complainant was the only candidate to raise the issue of noise with the contractor's staff present at the test centre. In EPSO's view, this information clearly demonstrates that "the complainant's view on the noise level is a subjective one and that the conditions at the test centre were not of such a nature that the normal running of the tests prevented all other candidates from sitting their tests."

18. Although it is not possible to ensure that all test centres are identical, EPSO has established common requirements which all test centres have to respect. These common requirements ensure "a high level of quality and provide for the best environment possible for candidates to sit pre-selection tests." After the Ombudsman's own-initiative inquiry OII/9/2010[3], EPSO continued taking all actions necessary in order to ensure fair testing conditions across the test centres and that the standard conditions for test centres are met. In particular, EPSO receives weekly reports ('Central Problem Reports') from its contractor on test centre conditions and feedback directly from candidates on such conditions and other issues related to open competitions. Moreover, candidates who sit the tests may fill out a survey (on a voluntary basis) in order to give feedback to EPSO on their experience when taking the tests. EPSO provided copies of the candidates' satisfaction surveys completed by candidates who sat for the tests on the same day and in the same test centre as the complainant.

19. As regards unforeseeable situations, given the number of different situations that may occur (for example, force majeure events) EPSO adopts a case-by-case approach for each specific situation. As a consequence, the most suitable measures to address the problem can be taken in each particular situation and can even include the re-sitting of tests by candidates who were clearly disadvantaged by such unforeseeable situations. For instance, when tests cannot be completed or proof of significant time loss is evident and repetition of the tests is the only possible and fair measure to redress such a disadvantage. In the complainant's case, not only did none of the aforementioned situations occur but he was also able to complete the tests.

20. In his observations, the complainant first pointed out that, the availability of earplugs "is not the solution to any noise levels in the rooms where examinations are carried out." Furthermore, the complainant noted that carrying out construction works presupposes advance notice, of which EPSO and/or its contractor should have been aware. In the complainant's view, the system in place did not offer a contingency plan to allow candidates to sit the tests in better conditions. Although all test centres across the different locations in Europe and elsewhere cannot be "100% identical", EPSO should strive to achieve the closest possible conditions at every test centre, so as not to discriminate amongst candidates.

21. The complainant also outlined that candidates sit tests with the intention of both completing and excelling at them. The fact that he completed the tests is an indication of his determination to carry on to the end irrespective of the unacceptable conditions.

22. Moreover, the complainant noted that EPSO's statement, that he was the only candidate who complained, was incorrect. In this respect, according to the candidates' satisfaction surveys provided by EPSO, two additional candidates who sat the tests during the same time slot (as the complainant) raised the same issue, namely the noise caused by the construction works[4].

23. In its subsequent reply to the Ombudsman's specific questions concerning the conditions at the test centre[5], EPSO pointed out that, on the basis of the candidates' surveys, among the 47 candidates who sat their tests on 23 May 2011 in Barcelona, only two other candidates who sat the tests at the same time as the complainant, complained about the level of noise at the test centre. The complainant is not amongst those two candidates.

24. Moreover, on the basis of the same candidates' surveys, there were two other candidates who expressly praised the test centre conditions[6]. One of those candidates sat his tests at 13.00 (that is to say, within the same time slot as the complainant) and he made no reference to any noise issues. In fact, the two candidates who mentioned noise issues in the candidates' surveys sat their tests at 11.00.

25. EPSO did not intend to make any disrespectful comment as regards the complainant's intention and determination to complete his tests. It only wished to point out that any possible noise occurring during the complainant's tests was not sufficient to interrupt his tests nor to prevent him finishing such tests.

26. Finally, in cases where the candidates' satisfaction surveys contradict the contractor's Central Problem Reports in respect of the conditions at a particular test centre, EPSO can request additional information not only from the candidate, but also the necessary additional information and/or documentation from EPSO's contractor and in particular the contractor's Technical Centre Administrator in order to clarify the facts in question.

27. In his observations, the complainant outlined that the conditions under which the tests were carried out during his time slot were by no means acceptable and severely affected his performance. He also noted that out of the 47 candidates, 31 candidates did not even reply to EPSO's survey. Therefore, EPSO’s interpretation that "all worked well because there were no complaints is profoundly misleading". Furthermore, the fact that some candidates quoted by EPSO praised the centre for its location and polite staff is irrelevant to the matter in question. In any case, he did report the noise levels to the contractor's staff during his break and after the tests.

The Ombudsman's assessment

28. The Ombudsman considers that, in the course of the inquiry EPSO effectively completed its earlier replies to the complainant (albeit only in reply to the Ombudsman's additional questions).

29. As regards the substance of EPSO's replies, the Ombudsman first points out that, ultimately it is not disputed that, during the time slot in which the complainant took his tests, there was noise at the test centre caused by the construction works carried out in the adjacent building.

30. In this respect, EPSO's argument that the complainant's view on the noise level was purely subjective cannot be supported given that (at least) two other candidates raised a similar issue in their feedback to EPSO's survey. In addition, as the complainant held, it is reasonable to consider that EPSO's contractor was well aware of the nearby construction works in advance (because carrying out construction works presupposes advance notice) and in this case, it should have informed EPSO accordingly and the latter should have taken adequate measures.

31. Moreover, from EPSO's replies, it emerges that EPSO does not have any precise technical standards for the issue raised by the complainant, for instance a set of general rules applicable in contingency situations and/or where the tests cannot be carried out in an optimal way.

32. The above appears to be contrary to EPSO's own standards. Indeed, in its opinion submitted in the framework of the Ombudsman's own-initiative inquiry concerning, amongst others, the conditions at the test centres[7], as well as in its opinion on the present case, EPSO held that the conditions at the test centres ensure "a high level of quality and provide for the best environment possible for candidates to sit pre-selection tests". The Ombudsman understands that EPSO is committed not only to ensure basic standards at test centres, such as to make sure that the running of the tests is neither impossible, nor disrupted but also to make sure that the candidates take the tests in the best testing environment.

33. The Ombudsman finds therefore, that EPSO failed to do its utmost to ensure the proper conditions for the tests in question. According to established case-law, EPSO has a duty to all candidates in a competition to ensure that the tests are conducted as smoothly and in as proper a manner as possible. The Ombudsman finds also that EPSO failed, as alleged by the complainant, to respond adequately and in a timely manner to his concerns regarding conditions in the test centre.

34. The question arises whether this failure could give the complainant any right to claim that the tests should be re-taken. In this respect the Ombudsman recalls that, an irregularity that occurs during the tests forming part of a competition does not affect the legality of those tests unless it is substantive in nature and capable of distorting the results of the tests. Where such an irregularity occurs, it is for the defendant institution to prove that the irregularity did not affect the results of the tests[8].

35. In the present case, EPSO argues in substance that, in spite of the noise, the conditions at the test centre were such that they would not have affected the performance of a normal and reasonable candidate to the extent of putting him/her at a disadvantage when compared to other candidates taking the tests in other test rooms without noise. EPSO contends that there are no other indications to suggest that the complainant was disadvantaged when compared to other candidates, such as evidence of significant time loss or that the complainant was prevented from completing the tests.

36. The extent to which the disturbance would have affected the complainant's test performance is difficult to measure. A candidate's response to such a disturbance is likely to be a personal one and not something easily quantified by reference to the responses of other candidates. For this reason, the Ombudsman feels unable to conclude definitively that the complainant was so disadvantaged by the disturbance that his performance in the test was affected significantly. At the same time, the Ombudsman finds that EPSO has not established that the disturbance was not of such a nature that it would have affected the complainant's test performance significantly. On this basis, the Ombudsman has decided that the complainant's first claim - that he should have been allowed re-sit the test - should not be upheld. However, this matter is the subject of a critical remark (see below).

37. In relation to the second claim, the Ombudsman has decided to deal with this by way of a further remark (see below).

38. In light of the above, the Ombudsman decides to close the case with a critical remark and with a further remark.

B. Conclusions

On the basis of her inquiry into this complaint, the Ombudsman closes it with the following critical remark:

The Ombudsman notes that EPSO failed to reply either adequately or in a timely manner to the issues raised by the complainant. These failures had the consequence that the opportunity to take appropriate action was lost and the complainant was left without a satisfactory response to his complaint. With the passage of time, the opportunity to deal effectively with the complaint has been lost.

The complainant and EPSO will be informed of this decision.

Further remark

The Ombudsman suggests that shortcomings in the running of the tests could be avoided by establishing a set of general rules applicable in situations where the tests cannot be carried out in an optimal way because of circumstances beyond EPSO's control. Whilst the negative effects of such situations on candidates could also be tackled ex post, on a case-by-case basis, this does not prevent EPSO, as far as reasonably possible, taking a proactive approach, and establishing rules to be applied in cases where the normal running of the tests is disrupted. Such rules would not only constitute useful guidance for EPSO's contractor in charge at the test centres, but would also enhance the transparency of the selection procedures, by allowing candidates to know what measures to expect should a disturbance occur during the tests.

Emily O'Reilly

Done in Strasbourg on 6 November 2013

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[1] Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying down the Staff Regulations of Officials of the European Communities and the Conditions of Employment of Other Servants of the European Communities, OJ 1968 L 56, p. 1, as subsequently amended.

[2] The Ombudsman requested EPSO to: (i) confirm whether it had contacted its contractor to verify whether the situation in the test centre described by the complainant corresponded to the reality of the situation and, if so; (ii) state what information the contractor provided in response; and (iii) provide copies of the candidates' satisfaction surveys completed by all candidates who sat for the tests on the same day and at the same test centre as the complainant. In addition, he asked EPSO if it could: (i) explain what follow-up action it took on the issue of the conditions at test centres following the own-initiative inquiry OII/9/2010, which concerned EPSO's new policy in open competitions regarding the booking of tests, its communication with candidates, and the conditions at the various test centres; (ii) clarify what rules it applies in contingency situations, where the tests cannot be carried out; (iii) explain how it ensures that the contractors responsible for the conditions at the test centres implement these rules; and (iv) provide a copy of these rules.

[3] OII/9/2010 concerning EPSO's new policy in open competitions regarding the booking of tests, its communication with candidates, and the conditions at the various test centres. This is available on the Ombudsman's website.

[4] These comments read as follows: "(...)The room and facilities were good although throughout the entire period I was testing there was some type of construction work in the vicinity that was clearly audible even with earplugs. It was at the least annoying” and "(...) the screens where a bit shimmering and there was some construction work at some point in time that was disturbing despite of the earplugs.”

[5] The Ombudsman asked EPSO to comment on the complainant's arguments, namely that: (i) it emerges from the candidates' satisfaction surveys that there were two other candidates who sat the tests at the same time as the complainant and who complained about the level of noise at the test centre, meaning that providing earplugs clearly did not constitute an adequate measure to address the situation, that the level of noise cannot be considered 'subjective' and that; (ii) EPSO failed to provide full copies of the candidates' satisfaction surveys, given that the complainant's comments are not reproduced entirely in the satisfaction surveys made available by EPSO. In addition, he asked EPSO to: (i) explain in detail on the basis of which objective criteria it decides that candidates may re-sit the tests if unforeseeable situations arise; and (ii) clarify the measures at its disposal if the candidates' satisfaction surveys contradict the contractor's Central Problem Reports as regards the conditions at a particular test centre.

[6] In French the original reads as follows: "Peu de temps pour la deuxième partie (économique). Centre parfait!" and in Spanish the original reads as follows: "La ultima parte presupone demasiado que tendrás un cargo importante dentro de la organización y no tiene porque dares. El centro está muy bien, bien situado, fácil acceso, temperatura agradable. El personal muy correcto."

[7] See footnote 3.

[8] Case F-7/07 Angioi v Commission, not yet published, paragraph 123.