Strasbourg, 18 December 2007

Dear Mr B.,

On 22 March 2005, you submitted a complaint to the European Ombudsman against the European Personnel Selection Office ("EPSO") concerning Open Competition EPSO/B/13/03.

On 30 May 2005, I forwarded the complaint to the Director of EPSO. EPSO sent its opinion on 23 August 2005. I forwarded it to you with an invitation to make observations, which you sent on 24 September 2005.

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

I apologise for the length of time it has taken to conclude my inquiry into your complaint.

THE COMPLAINT

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

The complainant participated in the pre-selection tests and written test (d) of Open Competition EPSO/B/13/03, which was designed to constitute a reserve of administrative assistants (B5/B4) in the fields of production co-ordination and proofreading(1). On 3 February 2005, EPSO informed the complainant that the mark he obtained in written test (d) was 27.44 and that he had thus failed to attain the pass-mark of 30/60.

On 22 February 2005, the complainant submitted a request for a review to the Selection Board asking about the possibility of retaking written test (d). The complainant argued that, although the rules of the examination distributed to candidates on 16 October 2004 stated that: "It is forbidden to leave your place without permission, during the distribution of the tests, during the tests and when papers are being collected", candidates were leaving their places without permission during written test (d), and they were handing in their papers themselves to the examiners (the papers were not collected by the latter). Given that the complainant was sitting between the examiners' desk and the exit door, he was more exposed to the noise, whispers and other sounds which affected his concentration. He also argued that there was a lack of specification as to the type of proofreaders' marks to be used in written test (d).

On 3 March 2005, the Selection Board replied explaining that it was not possible to organise a retake of written test (d). The Board explained that failure to use standard proofreaders' correction marks in written test (d) was not penalised. Furthermore, the Board assured the complainant that all tests that took place in the Warsaw test centre were carried out in an appropriate manner. On 22 March 2005, the complainant wrote to the Board disagreeing with its reply and requesting a second review.

In his complaint to the European Ombudsman, the complainant alleged that the rules of the examination were not respected and that failure to respect them had led to disturbances during written test (d) of the pre-selection tests which affected his concentration.

The complainant alleged that his request for a review by the Selection Board was not handled properly.

The complainant claimed that EPSO should organise another written test (d) of the pre-selection tests in Open Competition EPSO/B/13/03 and allow him to retake it.

THE INQUIRY

EPSO's opinion

The complainant took part in Open Competition EPSO/B/13/03 organised in the field of production co-ordination and proofreading. On 16 October 2004, he took part in the pre-selection tests and the written tests that were held in Warsaw. On 3 February 2005, the complainant was informed by the Selection Board that he had obtained 27.44 points out of 60 points, whereas the minimum number of points required to pass written test (d) was 30. By letter dated 22 February 2005, the complainant made a request for a review to the Board arguing, first, that he had been distracted during the said test and had consequently been unable to perform to the best of his ability. Second, written test (d) did not specify the proofreaders' marks to be applied.

On 3 March 2005, after having examined all the arguments put forward by the candidate, the Selection Board informed him that, in accordance with the Notice of Competition, it would not be possible to reorganise written test (d) for only one candidate. The complainant was informed that failure to use standard proofreaders' correction marks in written test (d) was not penalised. Furthermore, the Board assured the complainant that all tests were carried out in an appropriate manner, that the conditions prevailing during the tests in the Warsaw test centre were the same for all the candidates, and that no complaints about disturbance had been received from any other candidate. The Board argued that the complainant's review request was submitted after the deadline set out in the Annex of the Notice of Competition had expired (the tests were held on 16 October 2004, while his request was submitted on 22 February 2005, that is, 129 days after the test date).

On 22 March 2005, the complainant submitted a second review request to the Selection Board raising identical points to those submitted in his initial request. On 13 April 2005, the Board replied to this second request by confirming its original decision. The Board explained that

"[d]uring written test (d), candidates were allowed to leave the room with appropriate justification accompanied by an invigilator. (...) If candidates for instance wanted to give up before the end of time given, they could themselves hand over the sealed envelope to an invigilator and leave."

The Selection Board attached to its opinion copies of the reports of the test centre supervisor and the invigilators responsible for different test blocs, which indicated that there were no incidents or unfavourable conditions noted during written test (d) in the Warsaw test centre. Moreover, the Board underlined that the complainant made no remarks or complaints about the said conditions during the actual test.

In its opinion, EPSO confirmed that, during the test, candidates were permitted to leave the examination room for justified reasons and with the permission of the test centre supervisor. EPSO maintained further that, when drawing up tests and (where appropriate) when marking them, the Selection Boards make due allowance for the conditions under which tests are held. This is in order to ensure the equal treatment of all candidates, as was expressed by the Board in its letter to the complainant of 13 April 2005.

In these circumstances, EPSO was not able to conclude that the complainant had been the victim of discriminatory treatment to the advantage of other candidates, or that the physical conditions during the tests could justify their reorganisation. Other candidates participating in the same tests at the same test centre at the same time as the complainant were successful.

Finally, EPSO underlined that, during a three-hour test, one cannot forbid candidates from leaving the test room when a valid reason is given (use of toilets, abandoning tests, feeling unwell, and so on). With the appropriate permission and under supervision, such a practice is only normal during such tests. Test centre supervisors handle such requests in accordance with the rules laid down for the competition concerned. In addition, EPSO underlined that the above situations are taken into account when drawing up and, where appropriate, marking tests. Furthermore, in all instructions given to candidates prior to the tests, such situations were explicitly provided for.

As to the reply sent by the Chairman of the Selection Board, EPSO stated that, in spite of the fact that the complainant had made his request to the Board after the deadline set out in the Annex of the Notice of Competition, the Chairman of the Board studied the issues raised. In his two letters dated, respectively, 3 March 2005 and 13 April 2005, the Chairman replied in detail after having each time examined all the arguments put forward by the complainant. EPSO concluded that the Board neither failed to study all the arguments put forward by the complainant nor to reply to him in accordance with the relevant provisions of Notice of Competition and within the requisite deadlines.

The complainant's observations

The complainant maintained his complaint reiterating that the physical conditions were not equal for all participants, as the noise was greater in the area around the front row, which was where he was sitting. The complainant stated that he did not react at the time of the exam in order not to cause more noise and disturbance and in order to concentrate as much as he could.

As Notice of Competition stated that candidates may complain after having received an adverse decision, the complainant underlined that he only made his complaint after receiving the adverse decision and not after the test itself.

Finally, the complainant did not understand why the Selection Board had not made due allowance for the conditions under which the tests were held, as described in the opinion, in his case.

THE DECISION

1 Alleged disturbances during written test (d) of the pre-selection tests

1.1 The complainant, who unsuccessfully took part in written test (d) of Open Competition EPSO/B/13/03, alleged that the rules of the examination were not respected, and that failure to respect them had led to disturbances during written test (d) that affected his concentration.

He referred in this respect to the rules of the examination distributed to all candidates on the exam day of Open Competition EPSO/B/13/03 which stated that: "It is forbidden to leave your place without permission, during the distribution of the tests, during the tests and when papers are being collected". In support of his allegation the complainant argued that, contrary to the above rules, candidates were leaving their places without permission and were handing in their papers themselves as papers were not collected by the examiners. The complainant argued that he was more exposed to the noise, whispers and other sounds which resulted from the early departure of certain candidates and that these conditions had adversely affected his concentration, because he was sitting between the examiners' desk and the exit door. The complainant also argued that there was a lack of specification as to the type of proofreaders' marks to be used in written test (d).

The complainant claimed that EPSO should organise another written test (d) of the pre-selection tests in Open Competition EPSO/B/13/03, and allow him to retake it.

1.2 In its opinion, EPSO stated that, during the test, candidates were permitted to leave the examination room during the test for justified reasons and with the permission of the test centre supervisor and that this was foreseen in the instructions given to candidates before the test. EPSO underlined that, during a three-hour test, one cannot forbid candidates from leaving the test room when a valid reason is given (use of toilets, abandoning tests, feeling unwell, and so on). EPSO underlined that, with the appropriate permission and under supervision, such a practice is only normal during such tests. Test centre supervisors handle such requests in accordance with the rules laid down for the competition concerned. The complainant was informed that failure to use standard proofreaders' correction marks in written test (d) was not penalised.

1.3 At the outset, the European Ombudsman recalls that, in accordance with the principles of sound administration and equal treatment, the Community Courts have held that Community institutions have a duty to all candidates in a competition to ensure that the tests are conducted as smoothly and properly as possible(2). However, an irregularity that occurs during the test of a competition does not affect the lawfulness of the tests unless it is substantive in nature and capable of distorting the results of the tests(3).

1.4 In the present case, however, the Ombudsman observes that along with its opinion on the complaint, which was sent to the complainant in the course of the inquiry EPSO provided detailed accounts, (in the form of copies of the reports of the test centre supervisor and the invigilators responsible for the different test blocs), regarding each case when a candidate was permitted to leave from the examination room during the test. The Ombudsman acknowledges that these reports clearly indicate that 12 candidates abandoned the tests during written test (d), which lasted for three hours, that is from 14:00 until 17:00(4). Moreover, the only commentary under title "Incidents à signaler" concerned pre-selection test (a). Consequently, this confirms EPSO's position that no incidents or unfavourable conditions were noted during written test (d) in the Warsaw test centre and that the test was conducted as smoothly and properly as possible. Furthermore, the Ombudsman observes that, as EPSO indicated to the complainant in its letter of 13 April 2005, the three-hour period allocated for written test (d) made due allowance for any distraction related to candidates leaving the examination room.

1.5 Moreover, the Ombudsman notes that EPSO did not deny that candidates were informed in the instructions given to them before written test (d) had started that: "[i]t is forbidden to leave [their] place without permission, during the distribution of the tests, during the tests and when papers are being collected" but clarified the above rule by adding that the candidates could leave the examination room for justified reasons while being accompanied by an invigilator and, if they were to decide to abandon the test, they could themselves hand in their papers to the invigilators.

The Ombudsman finds such rules to be reasonable.

1.6 In these circumstances, the Ombudsman finds no instance of maladministration with regard to this aspect of the case. The Ombudsman also considers that the complainant did not succeed in demonstrating that his failure in written test (d) resulted from the above rules. Therefore his claim cannot be sustained.

2 Failure properly to handle the complainant's request for a review

2.1 The complainant alleged that his request for a review by the Selection Board was not handled properly, since, the Board argued in its reply to both of his requests for review, that he had submitted his original request of 22 February 2005, that is, after the deadline set out in the Annex of the Notice of Competition had expired (the tests were held on 16 October 2004, while his review request was submitted on 22 February 2005, that is, 129 days after the test date).

2.2 In its opinion, EPSO explained that, in spite of the fact that the complainant had made his request to the Selection Board after the deadline set out in the Annex of the Notice of Competition, the Chairman of the Board examined the issues raised and in his two letters dated, respectively, 3 March 2005 and 13 April 2005, replied within the requisite deadlines and in detail to all the arguments put forward by the candidate.

2.3 The Ombudsman points out that the relevant provision of the Notice of Competition provides that(5) the candidate can submit a request for review by sending a letter setting out the reasons for that request and that the Selection Board will reply "as soon as possible". Moreover, the Ombudsman notes that the above-mentioned provision of the Notice of Competition conferred on the candidates a procedural right(6), and created an obligation on the part of the Board properly to reply to his or her reasoned request for review as to a particular decision. In the complainant's case, the Board respected this obligation by means of its letter dated 3 February 2005.

2.4 In the present case, on the basis of the explanation provided by EPSO in its opinion, the Ombudsman understands that, following the complainant's review requests, the Selection Board had in fact reviewed and reconsidered the complainant's written test (d). The Board did not appear to find any reasons to mark the complainant's written test (d) again and sent its reply to the complainant within nine days following receipt of his requests. In this respect, the Ombudsman points out that he is not aware of any rule or principle that would necessarily require the Board to give different marks to the complainant's written test (d).

2.5 The Ombudsman further notes that the Selection Board acted as above even though it took the view that the complainant's review request was not submitted within the deadline established in the Notice. The Ombudsman notes therefore that the complainant submitted his request on 22 February 2005 and the Notice foresaw a 20-calendar-day deadline for such requests, starting from the date when the decision of 3 February 2005 to eliminate him from Open Competition EPSO/B/13/03 was communicated to him. Therefore, it appears the Board was wrong in stating that the complainant's review request was submitted after the deadline set out in the Annex of the Notice of Competition had expired.

2.6 Nevertheless, for the reason explained in point 2.4 above, the Ombudsman considers that the Selection Board acted according to the Notice of Competition and therefore there is no instance of maladministration as regards this allegation.

3 Conclusion

On the basis of the Ombudsman's inquiries into this complaint, there appears to have been no maladministration by EPSO. The Ombudsman therefore closes the case.

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

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

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(1) OJ C 243 A 2003, p. 20.

(2) See Case T-159/98 Torre and Others v Commission [2001] ECR SC-I-A-83 and II-395, paragraph 46; Case T-193/00 Felix v Commission [2002] ECR SC-I-A-23 and II-101, paragraph 45; and Case F-22/05 Neophytos Neophytou v Commission, judgment of 13 December 2006, not yet reported, paragraph 60.

(3) See Case T-200/97 Jiménez v OHIM [1999] ECR SC-I-A-19 and II-73, paragraph 55; Case T-159/98 Torre and Others v Commission, cited above, paragraph 47; and Case F-22/05 Neophytos Neophytou v Commission, cited above, paragraph 60.

(4) The detailed reports provided by EPSO indicated that the candidates who abandoned written test (d) left at the following times: 1 at 14:10, 5 at 14:15, 1 at 14:25, 2 at 14:40, 1 at 14:46, 1 at 14:55 and 1 at 15:00.

(5) The Annex of Notice of Competition EPSO/B/13/03 contains a provision which refers to "requests for review", which applies when a candidate considers that his or her interests have been prejudiced by a particular decision. According to this provision, a reasoned request for review may be submitted by letter within 20 calendar days of the date on the letter communicating the decision concerned, following which "[t]he selection board will reply as soon as possible". In his letter dated 22 February 2005 addressed to the Secretary of the Selection Board, the complainant stated that he believed that he "(...) would have performed much better, had it not been for some disturbances during test 'd' (...) [W]hereas tests 'a', 'b' and 'c' were carried out accordingly to the rules of the examination that had been distributed among candidates, the procedure of test 'd' carried out on 16, October 2004 did not guarantee equal opportunities (Official Journal of the European Union, D General Information, point 1.) for all candidates."

(6) See Order of the Court of First Instance in Joined Cases T-95/00 and T-96/00 Zaur-Gora and Dubigh v Commission [2001] ECR-SC I-A-79 and II-379, paragraph 26.