Dear Mr M.,

On 25 March 2002, you made a complaint to the European Ombudsman concerning your participation in open competition COM/A/6/01 organised by the European Commission.

On 15 May 2002, I forwarded the complaint to the President of the Commission. The Commission sent its opinion on 8 July 2002. I forwarded it to you with an invitation to make observations, which you sent on 22 July 2002.

On 10 December 2002, I wrote to the Commission in order to inspect the Commission's file on the case. You were provided with a copy of this letter. The inspection was carried out on 24 January 2003 by Mr Olivier VERHEECKE and Mrs Fotini AVARKIOTI of my office.

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

THE COMPLAINT

According to the complainant the relevant facts were as follows:

The complainant participated in open competition COM/A/6/01 - , but did not pass pre-selection test b) where he obtained only 16.842/40. The complainant made 2 appeals to the Selection Board, on 10 January 2002 in order to ask the re-examination of test b), and on 11 February 2002 in order to contest the correction method. The Selection Board decided to annul three questions of the pre-selection test. The complainant contested this, but the Selection Board replied that the questions were annulled for everybody and that the principle of equality had thus been respected. Further to the appeal, the Selection Board sent to the complainant a copy of the multiple choice questions list with the right answers and the complainant's answers. The complainant is of the opinion that 5 of his replies on test b) were also correct, and that therefore he would have obtained 22,105/40 instead of 16.842/40.

As the Selection Board rejected the complainant's appeals, he complained to the Ombudsman on 25 March 2002. He made 3 allegations :

1. By annulling questions 9 and 37 of test b), the Selection Board did not respect the principle of equality between the candidates.

2. The Selection Board did not reason its reply on the complainant's claim that his answers on questions 5, 8, 11, 13 and 25 of test b) could also be deduced from the text which was submitted to the candidates.

3. The complainant alleges that the Selection Board did not respect the conditions of point VI.D of the competition notice, as he obtained information that a number of candidates who did not obtain the minimum marks on the pre-selection tests were nevertheless included in the list of 600 candidates foreseen by the competition notice.

THE INQUIRY

By letter of 14 December 2001, the unit Admin.A.2 informed the complainant of the results of the pre-selection tests. As the complainant obtained 16,842 out of 40 for test b) concerning verbal and numerical reasoning, and the minimum required mark was 20, the Selection Board did not proceed with the correction of his written test, in accordance with point VI.D of the competition notice according to which every mark below the minimum mark is eliminatory.

The complainant was also informed that the Selection Board had decided to annul a question of test a) and questions 9 and 37 of test b) because of errors discovered after the tests took place. In order to guarantee equality between candidates, the decision to annul these questions was applied to all linguistic versions.

Further to his request of 18 December 2001, the complainant was provided with a copy of his optical answer sheet and of the sheet with the correct answers of the pre-selection tests.

By letter of 10 January 2002, the complainant questioned the quality of test b) as well as the annulment of questions, considering that it had in fact created an inequality which affected his legitimate expectations. In its answer, the Selection Board explained to the complainant the aim of the verbal and numerical reasoning test and the reason which led to the annulment of the questions.

As regards now the allegation of the complainant concerning the annulment of the questions, the Commission referred to the case law of the Court of First Instance(1) and the Court of Justice(2). According to this case law, the candidates are supposed to answer all questions and not only to those questions which they would like to choose. The number and the contents of the questions for which an answer is necessary are therefore identical for all candidates. The chances of the candidates remain unchanged if at a later stage an certain number of questions are eliminated.

The Commission also pointed out that there had not been a different appreciation of the questions as such, as the same number of points were attributed to each question.

As regards the allegation that the Selection Board did not take into account that the complainant's answers to questions 5, 8, 11, 13 and 25 of test b) could also be deduced from the contents of the test, the Commission observed that the Selection Board examined them, but that this did not allow to change its decision on the marks.

As regards the complainant's allegation that the Selection Board did not respect point VI.D of the competition notice, the Commission observed that all the conditions of the competition notice have been respected and that, after the correction of the pre-selection tests, the written tests were corrected of only those candidates who had obtained the minimum mark for every test and the best marks for the entire tests. The number of candidates who obtained the minimum required marks for the pre-selection test of field 02 of the competition was superior to the 600 candidates foreseen in the competition notice.

The complainant's observations

As regards the annulment of questions 9 and 37 of test b), the complainant observed that the principle of equality of treatment was violated because the annulment has advantaged the candidates who had given the wrong answer, whereas it has penalised the candidates who had given the correct answer.

As regards the second allegation, the complainant gives the example of the reply he gave to question n° 13 and which could, according to him, also be deduced from the text and was therefore not wrong: He chose answer (b), namely "en faisant attention à sa technique de respiration, il est possible de réduire sa tension artérielle". He chose answer (b) on basis of the following information in the text "il est possible d'obtenir des résultats remarquables par la simple application de techniques respiratoires : diminution de la tension artérielle". The complainant wants to know why his answer was not correct.

As regards the third allegation, the complainant wants the Ombudsman to check that the Selection Board did respect point VI.D of the competition notice, by asking from the Commission the list of the candidates (and their results) who have passed all the pre-selection tests.

FURTHER INQUIRY

After having considered the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary to help take a decision on the third allegation of the complainant according to which the Selection Board would not have respected the conditions of point VI.D of the competition notice if, according to the information he obtained, a number of candidates who would not have obtained the minimum marks for the pre-selection tests of field 02 would nevertheless have been included in the list of 600 successful candidates.

The inspection of the file

The Ombudsman therefore wrote to the Commission to inspect the Commission's file, and more particularly the list of the successful candidates of the pre-selection tests in field 02. The inspection was carried out by the Ombudsman's staff on 24 January 2003 in the Commission's premises in Brussels (DG ADMIN).

THE DECISION

1 The annulment of questions of the pre-selection test

1.1 The complainant alleges that by annulling questions 9 and 37 of test b), the Selection Board did not respect the principle of equality between the candidates. He observes that by annulling these two questions, an inequality is created between the candidates who replied correctly and those who replied wrongly to the said questions.

1.2 The Commission referred to the case law of the Court of First Instance and the Court of Justice, according to which the candidates are supposed to answer all questions and the chances of the candidates remain unchanged if at a later stage an certain number of questions are eliminated.

1.3 In his previous decisions in cases 761/99/BB and 729/2000/OV which take into account the established case-law of the Community Courts, the Ombudsman has considered that, in the case where a question of a test proves to be ambiguous, the decision to eliminate this question from the test is reasonable, provided that this elimination is carried out in such a way as to ensure that the interests of candidates are not negatively affected. On the basis of the evidence submitted to him, the Ombudsman takes the view that there is nothing to suggest that this condition was not complied with in the present case, given that the Commission appears to have eliminated questions 9 and 37 of test b) for all the candidates.

1.4 On basis of the above, there appears to be no maladministration on the part of the Commission with regard to this allegation.

2 The alleged failure to reason its reply to complainant's claim

2.1 The complainant alleges that the Selection Board did not reason its reply on his claim that his answers on questions 5, 8, 11, 13 and 25 of test b) could also be deduced from the text which was submitted to the candidates.

2.2 The Commission observed that the Selection Board examined the complainant's answers, but that this did not allow to change its decision on the marks.

2.3 The Ombudsman notes that the dispute between the complainant and the Commission concerns the fact that the text put to the candidates could be understood in such a way that several correct answers were possible. The dispute therefore concerns a question of interpretation of the relevant text. This question - which concerns the content itself of the test - falls within the discretionary power of the Selection Board.

2.5 Taking further into account that, according to the case-law of the Court of Justice, the communication of the marks obtained in the various tests constitutes an adequate statement of the reasons on which the board' s decisions are based(3), the Ombudsman considers that the Selection Board has acted within the limits of its legal authority. No instance of maladministration was therefore found with regard to this aspect of the case.

3 The alleged infringement of the competition notice

3.1 The complainant alleges that the Selection Board did not respect the conditions of point VI.D of the competition notice, as he obtained information that a number of candidates who did not obtain the minimum marks on the pre-selection tests of field 02 were nevertheless included in the list of 600 candidates foreseen by the competition notice.

3.2 The Commission observed that the number of candidates who obtained the minimum required marks for the pre-selection test of field 02 of the competition was superior to the 600 candidates foreseen in the competition notice.

3.3 With regard to this allegation, the Ombudsman office has inspected the Commission's file on 24 January 2003. During the inspection, the Commission officials first informed the Ombudsman's office that a corrigendum to the competition notice had been published in the Official Journal of 17 October 2001 (C 291 A) in which the numbers of the lists of successful candidates were amended. As for point VI.D.1 of the competition notice, the number was amended from 510 to 600 candidates who had obtained the best marks on pre-selection tests a), b) c) and d).

3.4 From the inspection it appeared that more than 600 candidates had obtained the minimum marks for the pre-selection tests a), b), c) and d). There was a first list of the 600 best candidates which had all obtained the minimum marks. Moreover there was another list of candidates who had also obtained the minimum marks, but were not among the 600 best candidates.

3.5 On basis of the above, the Ombudsman can confirm the accuracy of the information provided by the Commission. No instance of maladministration was therefore found with regard to this aspect of the case.

4 Conclusion

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

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

Yours sincerely,

 

Jacob SÖDERMAN

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(1) Judgement of 17 January 2001, T-189/99, Gerochristos.

(2) Order P. Giulietti C-263/01 of 13 December 2001 (points 35 and 36).

(3) Case C-245/95 P, Parliament v. Innamorati, ECR 1996 I-3423, paragraph 31.