Dear Mrs S.,
On 27 November 1998, you lodged a complaint with the European Ombudsman, concerning an alleged linguistic discrimination and a lack of transparency in the running of open competition EUR/A/123 in which you participated.
I informed you on 15 December 1998 that your complaint had to be declared inadmissible, since, as required by Article 2 §4 of the Statute of the European Ombudsman, you had not made any prior administrative approaches towards the Institution or body concerned. By letter dated 10 January 1999 you informed me that you had since written twice to the Commission on 1 and 13 December 1998, but without obtaining any reply. You considered that these approaches should satisfy the previous criteria.
In view of the new elements, I declared the complaint admissible and I forwarded it to the President of the European Commission on 3 February 1999, with a request for comments by 31 May 1999. The Commission sent its opinion on 21 April 1999, which I forwarded to you with an invitation to make observations, if you so wished. I received your observations on 31 May 1999.
Since part of the information enclosed with the Commission's opinion had been marked confidential, I requested additional information from the Commission on 30 June 1999, regarding the nature of this information and the reasons for it to be deemed confidential. I received the observations from the Commission dated 2 August 1999.
I am writing now to let you know the result of the inquiries that have been made.

THE COMPLAINT

The complainant participated in open competition EUR/A/123 in the area of financial management (1). On 19 November 1998, the complainant was informed by the Commission of her results. Even though she had passed all the tests, her final mark was not high enough to be included among the 80 best candidates as set out in point VIII of the competition's notice, and therefore her name had not been included in the reserve list for the competition.
The complainant considered that the subject chosen for one of the written test (test E) on Public Finance regarding the EU budgetary principles and exceptions was vague and too general. Since the Selection Board had not put forward clear criteria for the correction of the tests in each one of the different languages, the complainant concluded that there were no guarantees of fairness for their evaluation. Moreover, having talked with other French candidates, the complainant also pointed out that the evaluators who marked the French tests had seemingly applied stricter criteria.
On 9 December 1998, the complainant forwarded to the Ombudsman a copy of the letter she had addressed to the President of the Selection Board. In this new letter of 1 December 1998 the complainant requested: (i) a copy of her marked test, (ii) a new evaluation of her test, (iii) diverse information on the existence of similar complaints by other candidates, the content of the test in English and German, the criteria for the evaluation of the tests, and whether an analytical comparison of the marks given on the basis of the different languages had been carried out. The complainant clarified some of these requests in a letter to the Commission of 13 December 1998.
On 26 February 1999 the complainant sent an additional letter to the Ombudsman, joining with it a copy of the Commission's reply of 27 January 1999. In view of the arguments given by the institution, the complainant argued that the procedure for the marking of the tests and the selection of candidates lacked transparency. In its reply the institution had stated that having checked again the tests of the complainant, the marks obtained corresponded to the ones which had been communicated to her. The institution also indicated that the different questions of the test were not misleading, and the work of the evaluators had been carried out on the basis of pre-established criteria. As for her request to have access to a copy of her marked test, the Commission indicated that the work of the Selection Board was confidential, as required by the Staff Regulations.
On 4 March 1999, the complainant forwarded to the Ombudsman a copy of the letter sent to the responsible Commission services on the same date in which she spelled out in detail the questions already raised to the institution in her previous letters.
In summary, the claims of the complainant related to two main issues:
1. Discrimination against candidates using French, and accordingly unfair evaluation of their tests;
2. Lack of transparency in the way the Commission conducted the tests and their evaluation.

THE INQUIRY

The Commission's opinion
In its opinion, the European Commission first explained the background of the case. The complainant was a candidate in open competition EUR/A/123, organised jointly by the Commission and the Court of Auditors. The Selection Board of the competition had been agreed upon by both institutions, even though the Commission was acting as the appointing authority. As set out in point VII of the notice, the competition consisted of different written and oral tests, including test E, which required the drafting of a text on an area related to the competition. The complainant had been informed by the President of the Selection Board on 19 November 1998 that although she had passed all the test, with a total mark of 138.70, her name could not be included in the competition's reserve list, since her marks were not among the best ones.
The Commission pointed out that only then the complainant contacted its services as well as the Ombudsman, claiming that the subject matter of test E was misleading. The institution wrote to her on 27 January 1999 confirming the marks she had been given, and explaining that the content of test E appeared to be sufficiently precise in all languages. Moreover, the institution drew the attention of the Ombudsman to the fact that the father of the complainant, former Director in the Commission, had written to the Cabinet of Mr Liikanen, to denounce the incorrect system for the marking of the test in competition EUR/A/123, and to suggest that statistical adjustments be made in the final reserve list with a view to including some additional candidates.
As the Commission had stressed in the context of the Ombudsman's own-inquiry 1004/97, the complaint concerned the particular procedure followed by the institution for the evaluation of a candidate in an open-competition. The Commission highlighted the fact that the difference between competitions and ordinary exams evolves around the merits of each individual candidate, who in turn is compared with all the other candidates and only the best are kept for the reserve list - the maximum number which is fixed by the rules of the competition. In this case, the complainant had not been successful because her marks were not among the best of those which made the reserve list. It was not based on discrimination by way of nationality or language as the complainant had argued.
As regards the transparency of the procedure, the Commission referred to Article 6 of Annex III of the Staff Regulations, which establishes that the proceedings of the Selection Boards shall be secret. The Commission contended that this provision in no way takes from the principle of transparency. Its function is to permit the Selection Board to appreciate the merits of the candidates, and to evaluate their performance independently and outside all forms of pressure and influence.
In a separate section of its reply, the Commission enclosed some confidential information for the Ombudsman. The information concerned the number of candidates in the competition which had been admitted to the tests, those of them who had passed the written tests, those who took part in the oral interviews, and the number of candidates finally included in the reserve list.
The complainant's observations
In his observation on the Commission's opinion, the complainant insisted on the claims already made in the original complaint. She stressed that the institution had not fully replied to the specific questions she had raised in previous letters, in particular those related to the access to her written test, the criteria for the evaluation of the tests, the existence of complaints from English or German candidates, or the publication of the reserve list with the successful candidates.
The complainant joined with her letter a copy of the Commission's reply of 21 April 1999 in which the responsible services referred to the criteria followed by the Selection Board in its evaluation of the test. It pointed out that as regards the correction of test E the evaluators had to consider the general knowledge of the subject-matter, as well as the development of some particular aspects, organisation, clarity, style, orthography, syntax and general presentation. As for test f (practical test on the basis of a file given to candidates), the evaluators, two separate ones per test, had received more specific instructions, with elements which should be included in the replies.

FURTHER INQUIRIES

In order to clarify the reasons which had led the Commission to consider part of its opinion as confidential, the Ombudsman wrote to the institution on 30 June 1999.
The reply from the institution of 2 August 1999 explained that the statistical information on the results of the competition which had been marked as confidential had been forwarded to the Ombudsman with a view to furnishing him with all relevant aspects of the case, as done in similar cases before the Community courts.
The Commission added that neither the candidates nor third persons have access to this statistical information, since it is closely linked to the selection procedure carried out by the Selection Board, which has to be confidential in order to avert any external influence. Part of this statistical information is included in triannual reports which the Commission forwards to the Parliament and to the Council as required by Article 2 of Annex IX of the Staff Regulations.

THE DECISION

1 Discrimination against some candidates and unfair evaluation of their tests
1.1 The complainant has stressed that the content of a particular written test (test E) was vague and misleading, in particular its French version. Furthermore, she suggested that in the absence of clear evaluation criteria, it appears that French candidates could have been discriminated against.
1.2 As regards the content of a particular question, the Commission has underlined that, having reviewed the question, it did not find any element which might cast a doubt on the clarity of the possible replies. It also provided the complainant with a number of criteria which should have guided the work of its evaluators in the correction of the test. The complainant has not furnished any objective element which may support her claims that the content of this particular question might have been misleading, or that its evaluation in a particular language was stricter than in any other language.
1.3 As established by Community case-law, selection boards have considerable discretion in both, establishing the questions of a competition, and assessing its results.
In defining the detail content of a test, EC courts had granted an ample margin of manoeuvre to selection boards, provided that such content is confined within the limits laid down in the Notification of the Competition, or is consistent with the purposes of the test or of the competition(2). In the present case, no elements have been brought to the attention of the Ombudsman to make him conclude that in the formulation of a particular question the selection board of the competition could have exceeded its discretion. The Ombudsman therefore finds that there is no evidence of maladministration in relation to this aspect of the case.
Selection boards also enjoy wide discretion when assessing the results of the tests. This power, however, is not unbounded. It can be reviewed to ascertain whether its exercise, which must be based on objective criteria, is vitiated by a manifest error, by a misuse of powers, or whether the selection board has manifestly exceeded the limits of its discretion(3). No evidence has been brought forward by the complainant in the course of this inquiry which could question the judgements made by the selection board. The Ombudsman has therefore concluded that the selection board acted within the limits of its legal authority. There appears to be no instance of maladministration as regards this aspect of the case.
2 Lack of transparency of open competition EUR/A/123
2.1. The complainant has claimed that the Commission conducted open competition EUR/A/123 with no transparency on the grounds that many of her specific requests (copy of her marked tests, evaluation criteria, publication reserve list) were not fully met.
2.2. These substantive questions, as well as some others related to openness and transparency of Community competitions have been the subject of an own initiative inquiry launched by the European Ombudsman into the secrecy which forms part of the recruitment procedures of the Commission (own initiative 1004/97/(PD)GG)(4). As a result of this inquiry, the Ombudsman prepared a special report on the matter that has been sent to the European Parliament on 18 October 1999, and a copy of which is enclosed with this decision.
Thus, the Ombudsman considers that it is not necessary to pursue the inquiry into this aspect of the case. The complainant will be informed by the Ombudsman of the outcome of this procedure.
2 Conclusion
On the basis of the European Ombudsman's inquiries into this complaint, there appears to have been no maladministration by the European Commission. The Ombudsman has therefore decided to close the case.

FURTHER REMARK

Having assessed the evidence marked as confidential in the Commission's opinion, the Ombudsman concluded that these materials bear no direct relationship with the subject matter of the complaint, and therefore they were not taken into account in the conclusions of this decision.
In the light of the content of these materials, the Ombudsman cannot comprehend the reasoning which led the Commission to such classification. The Ombudsman does not share the Commission's view that public disclosure of statistical information on the number of candidates who were accepted to the competition, those who passed the written and oral tests, or those finally included in the reserve list could by any means impinge on the secrecy of the work by the Selection Board, or on the other hand, avert any potential influence on its choice of candidates.
The Commission's extensive interpretation of secrecy in this case appears rather misplaced if only compared with its announced overarching aim for an efficient, accountable and open administration, able to deliver the quality services European citizens rightly expect.
The President of the European Commission will also be informed of this decision.
Yours sincerely,
Jacob SÖDERMAN

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(1) OJ C 288 A, 23.09.1997.

(2) Case T-132/89, Vicenzo Gallone v. Council, [1990] ECR II-0549; par. 27 (see reference to existing case-law mentioned by the Court).

(3) See, case T-46/93, Fotini Michäel-Chiou v. Commission [1994] ECR I-A-0297; par. 48; case 40/86, Georges Kolivas v. Commission [1987] ECR 2643; par. 11.

(4) As a result of this inquiry, the Ombudsman recommended, among others, that the Commission give applicants access to their own marked papers upon request.