Strasbourg, 15 March 2004

Dear Mr A.,

On 8 August 2003, you made a complaint to the European Ombudsman against the European Personnel Selection Office (EPSO) concerning open competition COM/A/3/02 and in particular the Selection Board's decision to cancel one question in the first test of the pre-selection procedure.

On 18 September 2003, I forwarded the complaint to the Director of EPSO. The European Commission sent an opinion on behalf of EPSO on 5 January 2004. I forwarded it to you with an invitation to make observations, which you sent on 21 January 2004.

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

THE COMPLAINT

In August 2003, a complaint was made to the Ombudsman against the European Personnel Selection Office (EPSO) concerning open competition COM/A/3/02 and in particular the Selection Board's decision to cancel one question in the first test of the pre-selection procedure.

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

He participated in open competition COM/A/3/02 organised by EPSO for the selection of Administrators, career bracket A7/A6, in the field of "Research". The pre-selection tests, in which he participated in the field of "Sustainable development", took place on 20 March 2003.

At the end of April 2003, he received a letter informing him of the results of his pre-selection tests. He was informed that his result in test a) was 19.485/40, which was less than the minimum pass mark of 20. He was therefore excluded from the next stage of the competition. The letter also contained an announcement to all candidates that question number 8 in test a) had been cancelled due to inaccuracies discovered by the Selection Board. The pass mark for test a) remained at 20 and each of the remaining questions had been given a higher value, namely 1.026.

The cancelled question concerned which one of the countries Canada, Bulgaria and Argentina does not participate in the COST action. According to the complainant, the official website of the COST action made clear that the answer should be Argentina.

The question that had been cancelled was one that the complainant thought he had answered correctly. He therefore contacted the Selection Board, stating that even if the question concerned had to be cancelled, there should be a special provision for candidates like him, whose admission to the next stage of the competition was dependent on the cancelled question. The Selection Board, not the candidates, should be responsible for any malfunction of the system.

The Selection Board finally answered, explaining that it had been brought to its attention that the 2002 annual report of COST mentioned one Argentinean institute as a participant in the COST action. The question had therefore been cancelled in order to ensure fairness and equality to all candidates. However, the pass mark could not be changed.

In substance, the complainant alleges that the Selection Board has made a mistake which has negative effects for the candidates.

The complainant claims that the responsible people should be punished, that he should be admitted to the next step of the competition, or that the competition should be cancelled and that he should be paid compensation for the moral and financial damages he has suffered.

THE INQUIRY

The Commission's opinion

The Commission submitted an opinion on behalf of EPSO, making the following comments:

The complainant participated in open competition COM/A/3/02, Field 02 "Sustainable development". By letter of 23 April 2003, he was informed of the results of his pre-selection tests as determined by the Selection Board. Given that he had scored less than the minimum pass mark of 20 out of 40 in test a), he was not admitted to the subsequent stages of the competition.

The complainant was also informed that the Selection Board had decided to cancel question 8 in test a) in the field of "Sustainable development" owing to inaccuracies discovered after the tests had taken place. In order to ensure equal treatment for all candidates, the decision to cancel the question applied to all candidates in all language versions. The value of each remaining question was calculated by dividing the number of points indicated in the notice of competition by the number of questions remaining.

By e-mail of 5 May 2003, the complainant expressed the view that if an error had occurred regarding a question, each candidate should be credited with a point for the question concerned, or the question should be cancelled and the minimum pass mark reduced. The complainant felt that the principle of equal treatment of candidates had been infringed. The Selection Board replied to the complainant explaining why the question had been cancelled. It also explained that the pass mark could not be changed since it was laid down in the notice of competition, and that the principle of cancellation of questions had been endorsed by case law.

By increasing the value of each correct answer by a redistribution of points, the Selection Board did not take any points away from any candidate. The Board is bound by the notice of competition and has no authority to change the pass mark of a competition. However, it is for the Board to determine the arrangements and detailed content of the tests, in accordance with the aims of the competition. As regards the pre-selection tests, it is thus within the Board's remit to determine the number of questions for each test.

The very purpose of the Board's decision to cancel the question was to preclude any unequal treatment arising from an assessment of candidates on the basis of criteria which were not strictly identical. The legality of such a decision has been endorsed by the case law of the courts(1), which establishes that candidates must answer all questions and not only a certain number that they can choose themselves. The number and content of the questions to be answered are thus identical for all candidates. Subsequent elimination of a question for all candidates does not change each candidate's chances relative to his competitors. The Selection Board's decision to cancel a question did not breach the principle of equal treatment. The adverse effect of the cancellation for a candidate is one of the consequences of the nature of the competition and the candidate's performance. It does not, however, mean that the candidate has suffered unequal treatment. Cancelling a question constitutes a proportionate response to the discovery of an error in a test and the Selection Board remained within the limits of its power of discretion when cancelling the question. The Selection Board has thus committed no fault that could justify any form of compensation to the complainant.

The complainant's observations

In his observations, the complainant maintains his initial complaint and makes, in summary, the following additional remarks:

A test with 40 questions means that candidates are asked to give correct answers to 20 questions in order to be admitted to the next step of the competition. If he had known that the total number of questions was in fact only 39 and the pass mark was 20, he might have evaluated the questions differently and used the extra time to contemplate other questions.

The cancellation of the question concerned amounts to unequal treatment of candidates, as can be shown by the following two examples: Two candidates have achieved the same score, 20/40, in part a) of the pre-selection test. One of them has answered the cancelled question correctly and is therefore suddenly excluded from the competition. The other candidate, who did not answer the cancelled question correctly, therefore benefits. In the other example, one candidate has scored 90 % in parts b) and c) of the pre-selection test and 50 % in part a). Another candidate has scored 50 % in all three parts of the pre-selection test. The first candidate has answered the cancelled question correctly and is thus excluded from further participation in the competition. The second candidate did not answer the cancelled question correctly and is thus allowed through to the next stage of the competition.

THE DECISION

1 The cancellation of a question in the pre-selection test

1.1 The complaint concerns open competition COM/A/3/02, organised by EPSO, and in particular the Selection Board's decision to cancel one question in the first test of the pre-selection procedure. According to the complainant, the cancellation of the question concerned, without changing the pass mark, amounts to unequal treatment of candidates, especially those whose admission to the next stage of the competition is dependent on the cancelled question. Those candidates who had given an incorrect answer to the cancelled question were put in a more favourable situation than those who had answered it correctly. If he had known that the total number of questions was in fact only 39, he might have evaluated the questions differently and used the extra time to contemplate other questions. The complainant alleges that the Selection Board has made a mistake which has negative effects for the candidates.

1.2 The Commission, which submitted an opinion on behalf of EPSO, refers to the case law of the court and makes the following arguments. According to the case law, candidates in competitions must answer all questions and not only a certain number that they can choose themselves. The number and content of the questions to be answered are thus identical for all candidates. Subsequent elimination of a question for all candidates does not change each candidate's chances compared to other candidates. The question concerned was cancelled for all candidates in all language versions of the test. The purpose of this measure was to preclude any unequal treatment. The adverse effect of the cancellation for a candidate is one of the consequences of the nature of the competition and the candidate's performance. It does not, however, mean that the candidate has suffered unequal treatment. Furthermore, the Selection Board is bound by the notice of competition and cannot, therefore, change the pass mark. By increasing the value of each of the remaining questions in the test, the Selection Board did not take any points away from any candidate.

1.3 The Ombudsman recalls the finding of the Court of First Instance that a Selection Board enjoys wide discretion when it is faced with errors which have occurred in the course of an open competition involving a large number of candidates and which cannot, under the principles of proportionality and sound administration, be rectified by a repetition of the tests in the competition. The Court has also stated that, in exercising this discretion, the Selection Board must ensure equal treatment of candidates. The Ombudsman notes, however, that the Court rejected the argument that the cancellation of certain questions constitutes a breach of the principle of equal treatment since the time devoted to those questions differs among the candidates. The Court found that argument to be based on a misconception of the principle of equal treatment(2).

1.4 In previous cases concerning similar issues, the Ombudsman has considered as reasonable the decision to cancel a question in a test, provided that the cancellation is carried out in such a way as to ensure that the interests of candidates are not negatively affected(3). In the present case, the Selection Board appears to have had good reason to cancel the question. Furthermore, it did so for all candidates in all language versions of the test. In these circumstances, and taking into account the above-mentioned case law of the Court of First Instance, the Ombudsman does not find anything to suggest, despite the points made by the complainant in his observations, that the Selection Board has acted outside the limits of its legal authority. The Ombudsman therefore finds no maladministration by the European Personnel Selection Office.

2 The complainant's claims

In view of the finding in 1.4 above, the Ombudsman considers that the complainant's claims cannot be sustained.

3 Conclusion

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

The Director of the European Personnel Selection Office will also be informed of this decision.

Yours sincerely,

 

P. Nikiforos DIAMANDOUROS

---

(1) Case T-189/99, Ioannis Gerochristos v. Commission [2001] ECR IA-11; II-53, and order of 13 December 2001 in Case C-263/01 P. Giulietti (points 35 and 36).

(2) Case T-189/99, Ioannis Gerochristos v. Commission [2001] ECR IA-11; II-53.

(3) Cases 761/99/BB, 729/2000/OV and 647/2002/OV. The decisions can be found on the European Ombudsman's website: http://www.ombudsman.europa.eu.